M/s.Perumalla Subbaiah & Nageswar Rao, Cloth Merchants,

Kaman Bazar, rep. by P.Nageswara Rao, Khammam.



…Complainant.

The Oriental Insurance Company Limited rep. by its Branch

Manager, Khammam 11-3-100/1, Wyra Road, Khammam.

…Opposite Party.

O R D E R

The complainant is the owner of the Ford Escort Car bearing No.AP-20-E-2777, which was transferred from his brother. Prior to the transfer, the car was insured with the opposite party on 8-2-2005 vide policy bearing No.MV/2742/2005 for a period of one year from 8-2-2005 to 7-2-2006 and also submitted that, because of unawareness, he did not inform the opposite party about the transfer of the car and after purchase of the said car, the car met with an accident and mostly damaged and immediately, the complainant informed the same and accordingly the opposite party sent a surveyor.

The complainant further stated that he spent an amount of Rs.27,625/- towards repairs and the bills were also sent to the opposite party, but the opposite party addressed a repudiation letter dated 2-4-2006. As such the complainant filed the present complaint and prayed the forum to direct the opposite party to pay an amount of Rs.27,625/- towards costs of repairs along with interest at the rate of 24% P.A. from the date of accident.

2. Along with the complaint, the complainant filed affidavit along with the following documents;

(i) True copy of policy in the name of the brother of the complainant

(ii) True copy of certificate of registration in the name of the complainant, dt.27-2-21998.

(iii) True copy of policy copy in the name of the complainant

(iv) True copy of estimation of damages, dt.10-11-2005

v) True copy of Proforma invoice

vi) True copy of Repudiation letter, dt.7-4-2006

3. After receipt of notice, the opposite party appeared through its counsel and filed counter by denying averments made in the complaint.

4. As per the counter the opposite party stated that the complainant did not inform the transfer of the car as well as the alleged accident.

The opposite party also submitted that the complainant failed to file any document to show that the accident took place on 22-10-2005 and also submitted that, as per the G.R.-17 transfers of Indian Motor Tariff, the complainant shall endorse the change of ownership in the R.C. book within 14 days from the date of change of ownership. But the complainant failed to do so, it is against the terms and conditions of the policy. As such they repudiated the policy of the complainant and the same was informed to the complainant through a letter dt.7-4-2006. As such there is no deficiency on the part of them and prayed to dismiss the complaint together with costs.

Along with a memo, the opposite party filed policy copy in the name of the complainant.

In view of the above submissions made by both the parties, now the point for consideration is,

Whether the complainant is entitled to any relief as prayed?

POINT:



9. As seen from the averments of the complaint and counter, the complainant is the owner of the Ford Escort Car bearing No.AP-20-E-2777, which was transferred from his brother and after the transfer, the car met with an accident on 22-10-2005 and after the accident the car got repaired and the complainant spent an amount of Rs.27,625/- towards its repairs and after that the complainant informed the same to the opposite party along with estimation of damages. But the opposite party addressed a repudiation letter to the complainant on the reason of breach of terms and conditions of the policy, and as per the terms and conditions of the policy, the change of ownership in the insurance policy is not endorsed the change of ownership in the R.C.book within 14 days from the date of change of ownership.

As such the complainant prayed for redressal. In support of his averments, the complainant filed policy copy, which was valid from 8-2-2005 to 7-2-2006 in the name of his brother and also filed policy copy in the name of the complainant, which was valid from 22-3-2006 to 21-3-2007 and as seen from the said documents, after transfer of the said car, the car was registered in the name of complainant on 27-2-1998 as per the certificate of registration , but the car was insured in the name of the complainant on 22-3-2006. It clearly shows after the registration of the car, it was not insured in the name of the complainant within prescribed period as per the rules of Indian Motor Tariff and as seen from the complaint the date of accident was mentioned as 22-10-2005, it clearly shows that the car was not insured in the name of complainant at the time of accident, it was insured in the name of the complainant on 22-3-2006. As such the complainant is not entitled to any right over the opposite party to claim insurance amount towards damages of the car as there is no insurance policy in the name of the complainant at the time of accident. As such the complaint is liable to be dismissed.

COMPLAINANT:-
Sri Manjappa S/o Biddappa,
Bilasanur Village,
Harihara Taluk,
Davanagere District.



V/s

OPPONENT:

The Divisional Manager,
Oriental Insurance Company Ltd.,
Branch Office, 823/7, 1st Floor,
Thiluvalli Complex, Near Aruna Talkies,
P B Road, Davanagere.


: JUDGMENT :



The complainant Manjunatha has filed this complaint against the opponent U/s 12 of the Consumer Protection Act to direct the opponent to pay the insurance claim amount of Rs.15,000/- with interest at the rate of 18% PA from the date of death of Gopi till the date of realisation along with exemplory cost towards litigations and for such other releifs.

2. The facts of the case in brief are as follows :-

The complainant is the father of the deceased Gopi. The said Gopi was 12 years and was studying in 7th Standard in Sri Basaveshwara Higher Primary School, Bhanuvalli, Harihar Taluk.K ST B F and K S S W F, Bangalore has insured all School going students in the State of Karnataka studying in 1st Standard to 10th Standard (Govt. Aided/Un Aided Schools) under Students Safety Insurance Policy. The OP is the Insurance Company. On 10-9-06 at about 3-45 PM deceased was swimming in Thunga Bhadra River, the said boy Gopi died due to drowning.


The complainant lodged the complaint with Harihara Rural Police Station and case was registered under Crime No.23/06. The police after Post Mortem Examination handed over the dead body of the said boy to the complainant for the purpose of last tituals and he performed. The complainant being in grief sticken and no knowledge of Insurance Coverage. But in the month of April-07, the School Head Master informed the complainant about the Insurance Coverage and its benefits. On 12-4-07, the complainant furnished all relevant documents to the opponent requesting to settle the claim.


However, the opponnet neither replied nor complied with the said notice demands. Aggrieved by the irresponsible act of the opponent, the complainant has filed this complaint. The life of the deceased was insured under SSI claims and the complainant is the legal heir of the deceased is entitled for the insurance benefits. The deceased was bright studeous student. Due to his accidental death, the complainant and his family members are suffering mentally. The callous attitude of the opponent is contrary to the contract of Insurance Policy and establishes, the deficiency in service.


The act of the opponent has caused mental agony and hardship. The complainant is residing at Belasanur village, Harihara Taluk, Davanagere District, and the opponents office is situated in Davanagere is within the jurisdiction of this forum. The complaint is within time. However to be on safer side, the complainant has filed an application u/s 5 of the Limitation Act to condone the delay if any. Under the above said facts and circumstances of the case, the complainant has filed this complaint for the above said releifs.



3. In pursuance of statutory notice issued by this Forum, the opponent entered appearance and filed its version contending that,

The complaint filed by the complainant is not maintainable either in law or on facts, since there is no deficiency of service on the part of the opponent. The deficiency of service on the part of the opponent does not arise, since the op has not denied the lawful and reasonable claim of the complainant. But the complainat is not fulfilled the legal formalities and requirements made under the provisions of the Insurance Act. Without fulfilment of the said legal formalities and requirements, the op is unable to settle the claim and the complainant is failed to fulfil the legal formalities and requirements within the stipulated timeof 180 days.


It is the bounden duty of the complainant to approach the school authority/Head Master fo the School only within 180 days from the date of accident and claim may be entertained up to 180 days. Death claim may be settled on compliance of Police FIR reports, Post Mortem Report, and other relevant certificates only. The OP specifically stated that, it is the bounden duty of the complainant insurers to comply the legal formalities and fulfil the requirements made under the proviisons of Insurance Act to settle his claim at the earliest. The op is a public limited Company and is the custodian of the public fund and it has to act according the rules. Hence, failure to perform a is part of obligation on the part of complainant is not the deficiency of service, on the part of the op. The op has denied the rest of the allegations made in the complaint as false totally.


The complainant approached this forum by suppressing the material facts. The complainant knowing fully about all the facts of the case without any valid reasons and concealing the facts of non-performance of his obligations in favor of this op. Hence, the question of payment of costs does not arise. As per policy conditions compenstion for death is Rs.15,000/- only, and no interest is payable on the said amount. As there is no deficiency on the part of OP and that, the OP is not liable to pay any cost of this dispute. Hence, the complaint should be dismissed.



4. The complainant has filed IA-I u/s 5 of the Limitation Act to condone the delay if any in filing this complaint supported by an affidavit. The op has filed it objections to IA-I. The complainant and the op has filed their affidavit evidence. The complainant has got marked Ex.P-1 to P-12 in support of his case. Ex.R-1 is marked for the opponent. The Learned Counsel for the complainant and the opponent have submitted their written arguments in addition to oral arguments.

5. Now, the points that arise for consideration of this Forum are as follows:-



i). Whether there are sound and justifiable good grounds to allow

IA-I and to condone the delay in filing of this complaint?



ii) Whether there is any deficiency of service on the part of the opponent?

iii) If so, whether the complainant is entitled to the reliefs as sought?

iv) What Order?

6. Our findings on the above points are as follows:-

i) Point No.1: Affirmative

ii) Point No.2: Affirmative

iii) Point No.3: As entitled.

iv) Point No.4: See, as per order below:

for the following:-


REASONS
Point No. 1:-

7. The OP in its version has contended that, the complaint filed by the complaint is barred by law of limitation. The complainant ought to have filed this complaint within 180 days from the date of death of the said Gopi, but the complainant has not filed this complaint within the period of limitation. In the instant of the case the said Gopi S/o the complainant died on 10-9-06 at 3-45 pm in Thungabhadra River due to drowning. The complainant has filed this complaint beyond the period of limitation, i.e. 180 days. The complainant has filed this complaint claiming compensation on 24-2-09. i.e. the 2 years 5 months 14 days. The complaint filed by the complainant is clearly barred by law of limitation. However, the complainant has filed IA-I supported by the affidavit. The complainant Manjappa has stated in is affidavit that, deceased Gopi was his son aged about 12 years and was studying in 7th Standard in Sri Basaveshwara higher Primary School, Bhanuvalli, Harihara Taluk.


He has further stated in his affidavit that, K S T B and K S S W F, Bangalore has insured all School Going Students in the State of Karnataka studying in 1st Standard to 10th Standard (Govt. Aided/Un Aided) under Students Safety Insurance Policy, the op is the Insurance Company. The complainant has further stated in his affiavit that, he had no knowledge of Insurance Coverage, but in the month of April-07 School Head Master informed about the Insurance Coverage and its benefits. On 12-4-07 he furnished all the relevant documents to the op, requesting to settle the claim. However, the op has failed to reply and the complainant being a layman was unable to follow up and had no knowledge of the proceedings untill the Head Master took interest and on 12-12-08 wrote a letter to the op requesting the said Insurance Claim amount.


The op has filed its objections to the said application filed u/s 5 of the limitation Act that, the complainat has not fulfilled legal formalities and requirements made under the provisions of the insurance act and without fulfilment of the said legal formalities and requirements, the op has unable to settle the claim and the complainant has failed to fulfill the legal formalities and requirements within the stipulated time of 180 days. Further, the op has contended that, it is bounden duty of the complainant to approach the School authority of Head Master only within 180 dyas from the date of accident and the claim may be entertained upto 180 days. Death claim may be settled on compliance of policy, FIR reports, Post Mortem Report and other relevant certificates only. No-doubt, the complainant has filed this complaint beyond the period of 180 days.


The complainant ought to have filed his complaint within 2 years as per sec. 24(a) of the Consumer Protection Act 1986. There is delay of 5 months 14 days in filing the complaint. The complainant has very specifically stated in his affidavit filed in support of IA-I that, he is an illiterate and layman and the complainant has no knowledge of Insurance Coverage. Further, it is clear from the affidavit filed by the complainant that, the complainant came to know about the Insurance Coverage only when the Head Master of the said School informed about the Insurance Coverage and its benefits. From this fact it can be stated that, the complainant had no knowledge about the said policy coverage, and that he had not taken any steps to file the complaint within the period of limitation. It is clear from the material placed on record that, all the policies and other relevant documents were with the School authorities. When the Head Master came to know about the death of the said boy, he ought to have taken immediate action informing the parents of the said Gopi about the policy coverage and to comply for the said policy amount.


But the Head Master informed the complainant only in the month of April-07. When the complainant is illeterate and village rustic and when he had no knowledge about the policy coverage, then it is impossible for him to file the complaint or to claim the amount within the period of 180 days. From this fact, it can be stated that, the complainant was prevented by sufficient cause in not filing the complaint or to submit his claim form along with necessary documents. As we have already stated above that, all the documents in connection with the said insurance were with the school authority. The Head Master ought to have taken immediate action by informing the complalinant as the School authorities were in possession of the policy and other documents. In view of the same we have no hesitation to hold that, the complainant was prevented by sufficient cause in not filing the complaint or put his claim. In the above said circumstances we feel it just and proper to condone the delay of 5 months 14 days in filing the complaint. Accordingly, the delay condoned. We answered the point no.1 accordingly in affirmative.


Point No. 2 & 3:-



8. It is undisputed fact, that even till today, the op has not settled the claim. Ofcourse, the complainant has not filed claim petition immediately within 180 days and on account of said reason, the op has not settled the claim of the complainant. Now this forum has allowed the IA-I filed by the complainant and condoned the delay in filing of this complaint, i..e. from the date of knowledge about the policy coverage. It is not in dispute that, the S/o the complainant namely Gopi died on 10-9-06 at 3-45 PM, due to drowning while he was swimming in Thungabhadra River. It is also not in dispute that, the complainant is the father of said Gopi. It is clear from the material placed on record that, the complainant had no knowledge of Insurance Coverage.


It is also clear from the material placed on record till April-07, he was not aware of any such policy coverage. If the complainant came to know about the policy coverage, when the Head Master of the School informed him about the policy coverage. It is also clear from the material placed on record that, the complainant has obtained relevant documents and requested the op to settled the claim and the op has not settle the claim. It is also clear from the documents that, the Head Master took interest on 12-12-08 and wrote a letter to the op requesting to settle the insurance claim amount.


The complainant has produced the said letter written by the Head Master to the op- Insurance Company. The learned Counsel for op has submitted in his arguments that, there is policy coverage only to the extent of Rs.15,000/-. Further, he has submitted that, the complainant has not filed his claim petition before the op within the period of limitation and has not followed the requirements to claim the policy amount. Even till today, the op neither settled the claim nor repudiated the claim made by the complainant. However, the Learned Counsel for the op has submitted in his arguments that, in the month of April-07, School Head Master informed about the Insurance Coverage and its benefits. According to the complainant and on 12-4-07, the complainant furnished all the relevant documents to the op requesting to settle the claim , however the op failed to reply to the said claim made by the complainant. The complainant has reiterated the averments and the allegations made in the complaint in his affidavit evidence.


The op-1 Aravinda Deshapande has filed his affidavit evidence of reiterating the contentions taken by the op in its version. In his affidavit evidence, the op has not denied the claim of the complainant. The only contention taken by the op is that, the complainant has not followed the procedure and necessary requirements, and legal formalities. We have gone through the affidavit evidence filed by the complainant and op and also written arguments submitted by the both party’s Counsel. The complainant has produced Ex.P-1 copy of FIR. From this FIR it is found that, the Harihar Rural Police received the complaint and registerd as crime no.23/06 and submitted FIR.


The complainant has produced Ex.P-2 Inquest Report, Ex.P-3 the statements of the witnesses recorded by the police, Ex.P-4 is the Post Mortem Report of the deceased-Gopi. The Dr. who conducted Post Mortem examination has opined that, the death of the deceased was due to Asphyxia as a result of drowning. Ex.P-5 the claim Form submitted by the complainant. Ex.P-6 is the death certificate, as per the certificate the deceased died on 10-9-06. The complainant has produced the register extract of the said School to show that, the said boy Gopi was studying in Basaveshwara Higher Primary School, Bhanuvalli.


It is also mentioned in the Ex.P-8 that, the deceased died due to drowning while he was swimming in Thungabhadra River. Ex.P-9 is the complaint filed by the complainant before police. Ex.P-10 is the Postal Receipt, Ex.P-11 is the letter written by the Head Master of the said school on 12-12-08. It is clear from this letter that, the Head Master requested the op to settle the claim, but the op has not settle the claim and on account of the said reason, the Head Master of the School wrote a letter on 12-12-08 to pay the compensation, i.e. policy coverage amount. It is clear from this letter that, the said Head Master submitted all the relevant documents in conneciton with the policy coverage and put the claim. Ex.P-12 is the postal receipt. From the affidavit evidence of Pw-1 and relevant documents stated above that, the S/o the complainant namely Gopi died on 10-9-06.


It is also clear from the evidence on record that, the father of the deceased had no knowledge about the policy coverage. It is also clear from the material placed on record that, the Head Master of the School informed the complainant about the policy coverage and the complainant submitted his claim form to the op. The op-Insurance Company not settled the claim. The non settlement of the claim though the father of the complainant is entitled to receive is nothing but deficiency of service on the part of the op. Counsel for the op has produced Ex.R-1, renewal of Student safety insurance for the School going children from 1st Standard to 10th Standard including teaching staff covered by Government of Karnataka, KSTDF and KSSWF, “Shikshaka Sadana”, K G Road, Bangalore. Now the relevant portion of the said policy reads thus;

We thank you for your extended service in respect of above policy and claim settlement. We have pleasure to inform you that, the captioned policy has been renewed by the Government of Karnataka for the period from 1-6-2005 to 31-5-2006 at Shimoga Branch.

a) Death due to accident


15,000/-

b) Permanent Total Disablement

(Loss of two Limbs, Eyes, hands, Legs)


25,000/-

c) Permanent Partial disablement

(Loss of one limb/eye)


12,500/-

d) Medical Expenses due to accident 1,000/-

e) Operation resulting due to accident with sufficient proof/Doctors certificate/ Hospital/ Medical bills


5,000/-

f) Loss of Books due to accident 250/-


9. Now the S/o the complainant is no more and he died due to drowning while swimming in Thugabhadra River. As per this policy terms and conditions, the complainant is only entitled to Rs.15,000/- incase of death due to accident.



10. In para(2) of Ex.R-2, the relevant portion reads thus;

2. Proof satisfactory to the Company shall be furnished of all matters upon which a claim in based. Any medical or other agent of the company shall be allowed to examine the person of the Insured on the occasion of any alleged injury or disablement when and so often as the same may reasonaby be required on behalf of the Company and in the event of death., to make postmortem examination of the body of the Insured. Such evidence as the Company may from time to time require shall be furnished and a postmortem examination report, compulsory be furnished within the space of fourteen days after demand in writing and in the event of a claim in respect of loss of sight the insured shall undergo at the insured’s expense such operation or treatment, as the company may reasonably deem desirable provided that in the case of claim by death or permanent total or permanent partial disablement, all sum payable hereunder shall be payable only on submission of completed claim form, P.M. Report for death, Doctors Certificate, X-ray, Bills and fitness certificate for injury claims.

No sum payable under this policy shall carry interest.



11. After considering the facts and circumstances of the case the non-settlement of the claim of the complainant is nothing but deficiency in service. The father of the deceased boy is entitled to receive the policy coverage of Rs.15,000/- from the op. In view of the terms and conditions mentioned above no interest is payable on the said amount. In view of the same, the complainant is entitled to a sum of Rs.15,000/- , i.e. the policy coverage amount. However, the complainant lost his son and now he is at great grieve. The said boy was aged about 12 years and was brilliant studen as grief by his father. After taking into consideration of the above said facts and circumstances of the case, we feel it just and proper to direct the op to pay a sum of Rs.1,000/- towards litigation expenses.



12. In view of our foregoing discussion, the op is liable to pay the policy coverage amount of Rs.15,000/- and Rs.1,000/- towards litigation expenses. The ends of justice would be adequately met with the above said compensation is paid to the complainant. Accordingly, we answer the point no.2 in affirmative, point no.3 as entitled.

COMPLAINANT:

Sri K. Ramanna, S/o Kariyanna,

Aged about 55 years, Agriculturist,

Gunavanthi Road,

KOPPA,

CHIKMAGALUR.



V/s

OPPONENT:

The Oriental Insurance Co. Ltd.,

T.A.P.C.M.S. Complex,

K.M. Road,

CHIKMAGALUR.

(Sri T.R. Harish, Adv.)




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

1. The complainant has filed this complaint u/s 12 of the Consumer Protection Act against the opponent for deficiency of service in not granting compensation as per the policy and prays for the compensation of Rs.10,000/- along with the assured amount of Rs.1,00,000/- and court costs as detailed in the complaint.

2. The facts of the case in brief are as follows:-

The complainant’s son died in the accident on 20.05.2007. During the accident he has obtained vehicle insurance policy vide bearing No.7353/07 to his T.V.S. Victor which is valid from 21.03.2007 to 20.03.2008 and he has paid the premium towards the personal accident benefits. Apart from this policy, the deceased son of the complainant also obtained Individual Nagarik Suraksha Policy from the opponent, which is valid from 31.05.2007 to 30.05.2008. Such being the case, the opponent not settled the claim of the complainant. He claimed the compensation against the opponent under the capacity of nominee to the said policies, but the opponent has repudiated without any valid reason. Hence, they are at deficiency of service and prays for the reliefs as prayed above.

3. After the service of the notice, the opponent has appeared through their counsel and filed version wherein they have contended that they have issued insurance policy relating to the vehicle bearing No.KA-34-Q-9311 for the period of 21.03.2007 to 20.03.2008 in the name of R. Santhosh Kumar, who is son of the complainant.


The liability of opponent, if any, is governed by the terms and conditions of the policy. During the accident, the rider of the vehicle i.e., deceased Santhosh Kumar had no valid driving licence to drive such vehicle and he has violated the terms and conditions of the policy. Therefore, the complainant is not entitled to get the compensation. After the accident, the complainant made a claim for compensation under personal accident benefits. Thereafter, they called the complainant to produce driving licence and other details, but the complainant has not complied the required documents and filed this false complaint against them. Therefore, the complainant is not entitled to get any benefit under personal accident cover.

4. Further they contended that they have issued Nagarik Suraksha Policy bearing No.109/2008 for the period of 31.05.2007 to 30.05.2008 but the said policy holder i.e., Santhosh Kumar died earlier to taking this policy i.e., on 18.05.2007. Therefore, they are not liable to pay any compensation to the complainant and contended that there is no deficiency of service. Hence, prays for the dismissal of the complaint.

5. The complainant has filed his affidavit evidence as PW.1 along with the documents and the same have been marked as Exs.P1 to P11.

6. The opponent has also filed his affidavit evidence as RW.1 and produced the documents, which have been marked as Exs.R1 to R4.

7. We heard the arguments advanced by both the parties’ counsels.

8. 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 opponent?

ii) If so, whether the complainant is entitled to the

reliefs as sought?

iii) What Order?

9. Our findings on the above points are as follows:-

i) Point No.1: In the Negative

ii) Point No.2: In the Negative

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

- ::: R E A S O N S ::: -

10. Point Nos.1 & 2: The case of the complainant is that he being a nominee to the policies taken by his deceased son, made a claim against the opponent, but the opponent has not settled the claim and repudiated without any valid grounds. Hence, prays for the reliefs as prayed above.

11. On contrary, the opponent has taken a contention that they have issued policies to the deceased son of the complainant. But in order to claim personal accident benefit, the driver must possess valid driving licence to drive such type of vehicle, whereas in this case insured had no valid driving licence to drive. Hence, the complainant is not entitled to get any compensation under the head of personal accident benefit and further contended that the complainant obtained policy in the name of deceased person after the death of insured. Hence, they are not liable to pay any compensation to the complainant under the said policy and submit no deficiency of service.

12. The complainant has produced charge-sheet at Ex.P3 to show that the accident was occurred on 18.05.2007 as a result one Santhosh Kumar succumbed to death, who is a son of the complainant and also produced Post Mortem Report at Ex.P7, Death Certificate at Ex.P8 and further produced a policy bearing No.7353/07 to the vehicle bearing No.KA-34-Q-9311 at Ex.P9 and also produced another policy called Individual Nagarik Suraksha bearing No.109/08. On perusal of the said documents, we are of the opinion that the complainant has failed to produce the driving licence of the deceased insured.


As such, we believe that the said deceased son of the complainant had no valid driving licence to drive such vehicle at the time of the accident. If at all he had a valid driving licence, then there was no trouble to produce the said D.L. by the complainant before this Forum. As such the statement given by the complainant stating that he was unable to trace out the D.L. will not be acceptable and as observed in the policy i.e., Ex.P9, we noted that in order to claim personal accident benefit, the insured must possess valid driving licence. As such there is a clear violation of the terms and conditions of the policy by the deceased son of the complainant.


Hence, the repudiation made by the opponent will not amounts to deficiency of service and as far as another policy is concerned, the opponent has produced the said policy and the same is marked as Ex.R2 and a receipt for having paid the premium towards the said policy marked as Ex.R3. On observation of the said receipt, we noted that the amount of Rs.101/- was paid on 30.05.2007 and policy issued on the same day, whereas the insured was died in an accident earlier to the issuance of the policy i.e., on 20.05.2007, this goes to show that the complainant has obtained a policy in the name of the deceased son after the death. Therefore, the claim of compensation will not arise and repudiating the said claim also will not amounts to deficiency of service. Hence, the complaint is liable to be dismissed. For the above said reasons, we answer the above point Nos.1 and 2 in the negative.

13. Point No.3: In view of our findings on above points the complaint filed by the complainant has to be dismissed. In the result we pass the following order.



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



1. The complaint filed by the complainant against the opponent is hereby dismissed.

2. Having regard to the facts and circumstances of the case there is no order as to costs.

3. Send the copies of this order to the parti

COMPLAINANT:

Sri L. Prakash, Hindi Teacher,

Vishwa Vidyalaya High School,

CHIKMAGALUR.



V/s

OPPONENT:

1. The Manager,

Oriental Insurance Co., Ltd.,

T.A.P.C.M.S. Complex,

Near Hanumanthappa Circle,

CHIKMAGALUR.



2. M/s. E-Meditech Solutions Ltd.,

No.36/1, Dickenson Road,

BANGALORE.




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



1. The complainant has filed this complaint u/s 12 of the Consumer Protection Act to resolve the dispute against the opponents for deficiency of service in repudiating his legitimate claim of Rs.15,603/- and to give directions to pay compensation along with such other reliefs as prayed for in the complaint.

2. The facts of the case in brief are as follows:-

The complainant has purchased one Individual Mediclaim Policy from the 1st opponent on 15.02.2008 covering the risk for his family members and he averred in his complaint that he is continuously taking the same type of policy since three years. Further he has alleged that on 18.08.2008 his elder dependant daughter viz., Somyashree was admitted to Deepa Nursing Home, Chikmagalur for medical treatment and she was discharged on 26.08.2008 after taking proper treatment.

3. Subsequently, the complainant has sent medical claim in Form No.3 along with medical bills and reports to the 2nd opponent on 05.09.2008. As per the directions of the 2nd opponent directing him to send the original discharge certificate and accordingly the same were sent on 11.09.2008. As the complainant has failed to receive the reimbursement of medical expenditure, he sent reminders to the 2nd opponent on 05.11.2008, 02.12.2008 and finally wrote a letter on 31.12.2008 alleging deficiency of service in not effecting the timely payment. He has further alleged that when he has obtained same type of policy for the first time, the terms and conditions of clause 4.12 was not disclosed. At the time of renewal of the present policy also the opponents have failed to communicate the same. After submitting the claim to the opponents, they have repudiated the claim and refused to make the payment as a result they have rendered deficiency in service. Hence, this complaint for the above referred reliefs.

4. After the service of the court notice, the 1st opponent has appeared through their counsel and filed version. But the 2nd opponent did not choose to appear before the Forum or to file the version on his side to contest the case. Hence, the 2nd opponent is placed exparte.

5. The 1st opponent has taken contention in his version that the policy in dispute was issued to the complainant covering the risk period from 15.02.2008 to 14.02.2009 as against the risk period mentioned in the policy from 05.03.2008 to 04.03.2009 and the liability of this opponent, if any, is governed by the terms, conditions, exceptions and limitations of the insurance policy etc., Further they have contended that the daughter of the complainant Smt. Soumyashree was admitted to Deepa Nursing Home for the treatment of ECTOPIC ABORTION and as per the condition of the policy any expenses incurred towards abortion is not payable. Hence, the claim was repudiated as per the terms and conditions of the clause No.4.12 of the insurance policy, which reads as hereunder:

“Treatment arising from or traceable to pregnancy child birth, mis-carriage, abortion or complications of any of this including ceaserian section”

6. Further he has taken a defence that as per the said provision the claim has been repudiated and the same is in accordance with the insurance contract. Hence, there is no deficiency of service for which they are not liable to pay any amount or compensation and prayed for the dismissal of the complaint with costs in the interest of equity and justice.

7. The complainant has filed sworn affidavit evidence as PW.1 along with the documents and the same have been marked as Exs.P1 to P9.

8. The 1st opponent has also filed sworn affidavit evidence as RW.1 and produced documents, which have been marked as Ex.R1 to R11.

9. The 2nd opponent has not chosen to file his sworn affidavit inspite of service of notice.

10. We have heard the arguments advanced by both the parties’ counsel.

11. 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?

12. Our findings on the above points are as follows:-



i) Point No.1: Established



ii) Point No.2: Yes, he is entitled.



iii) See, as per order below



- ::: R E A S O N S ::: -

13. Point No.1(a): There is no dispute raised by both the parties regarding the procurement and issuance of Individual Mediclaim Policy. The main altercation raised by the insured that he has spent huge amount towards the medical expenditure of his dependant elder daughter and the same was sent to the insurer for reimbursement, which was ultimately rejected on flimsy grounds. The main grouse that has been taken by the insurer that the insured has violated certain exclusion clauses, which existed in the contract of insurance and therefore uprightly they have repudiated the claim, on the facts and circumstances of the case as there is no deficiency of service.

(b) The defence that has been taken by the learned advocate representing the 1st opponent contending that the insured has spent Rs.15,503/- towards the medical expenditure is hereby denied and he is put to strict proof is not a valid ground for consideration, in view of the fact that the complainant has submitted certain documents, which have been taken on record and marked as Exs.P1, P2, P4 and P9 and the exhibits submitted by the opponents themselves from Ex.R1 to R12 in support of their contentions are well nigh and plausible evidences, which will bespeak and spell out that the insured has provided the treatment to the dependant daughter and incurred expenditure as stated above and therefore the argument advanced by them is void abinitio and do not hold water.

(c) The learned advocate representing the opponent has vehemently argued that the treatment of ECTOPIC ABORTION is not covered under the terms and conditions of the policy and as per clause 4.12 of the insurance policy, “Treatment arising from or traceable to pregnancy child birth, mis-carriage, abortion or complications of any of this including ceaserian section”, which does not find a place in the insurance policy itself issued to the complainant at all.


In order to buttress his contention the 1st opponent has submitted one document, which is marked as Ex.R1, wherein it is noticed that the opponent has formulated copious of terms and conditions and contended that the same prospectus was duly intimated and enclosed to the insured at the time of renewal of the policy. If you ponder over on the said prospectus, it will reveal to the extent that certain portion has been earmarked in page No.10 for the signature of the insured, wherein the complainant has to affix his signature with date duly confirming the terms and conditions are viable to him and accepted, a copy of which must be preserved in their office for record and reference at the time of payment. We are concerned only relating to a contract of insurance and interpret the words in which the contract is signed by the parties. But it is strange to observe here that the 1st opponent has not produced any iota of evidence to prove that the same has been duly signed by the complainant, before this Forum for perusal.


The learned advocate for the opponent while rebutting the allegation that the insured has not received such prospectus along with the renewed policy, what prevented the insurer to produce such signed valid document before the Forum for adjudicating the dispute, which they have utterly failed? At the outset, by no stretch of imagination, we can hold on the prima-facie that the insurer has not communicated the terms and conditions said to have been enclosed at the time of renewal of policy and the repudiation of reimbursement is unjustified.

(d) When no document was produced before the Forum by the opponent the burden of proof shift from the insured to the insurer and therefore in the absence of any such valid document, we hold that the insurer has not discharged his rightful duty properly. The complainant in his candid admission in the dock box during the cross examination has confirmed that he has not received such condition. During the cross examination, 1st opponent has also confirmed that he has not obtained the signature of the insured in the prospectus i.e., Ex.R1.


As a general rule, the violation of public duty enjoyed by law or through statutory provisions for the protection of person or the property would constitute responsibility and any violation in this regard would amounts to negligence perse. It is appropriate to mention here that before renewing the policy, the concerned file will be processed from the level of the dealing assistant to the level of issuing authority. At any point of time the insurer could have noticed that the insured has not at all affixed his signature in the prospectus said to have been enclosed and marked as Ex.R1 and withheld the insurance policy.


For the mistake done by the insurer, why the insured should suffer in getting his legitimate reimbursement. The format submitted by the Insurance Company which is marked as Ex.R1 is the only piece of evidence and this piece of unauthenticated record cannot be accepted by this Forum for adjudication of the dispute. Interalia, it is well settled principles of law that Uberrima fides (principles of good faith) must be applied to the insurance company as well. The consistency of good faith is the corner stone of the contract while signing, which creates confidence of both the parties to achieve tangible results without any violation.


The consumer Protection Act will surely supplements and not supplants the very interest of the consumer. By going through the documents submitted by the opponents and their plea that the insured was aware of the stipulated terms and conditions of the policy is far from truth. Be that as it may, why a prudent man will enter into a contract, when such contract is non-lucrative to his interest and he will never voluntarily assents to such risk by adopting the doctrine of Volenti Non-Fit Injuria (voluntarily assumption of risk), merely because he knew it and he will surely annul such contract, if it has come to his knowledge.


Therefore, the repudiation of the claim is unjustified and the insured is fully entitled to get reimbursement of medical expenditure in the absence of non-communication of terms and condition. The very purpose of the scheme was to confirm the benefit on person, who has purchased the policy and not with a view to promote their business interests is wholly fallacious and tantamount to logic-chopping and unfair trade practice. Therefore, argument put-forth as above by the opponent is much against to the essence of the insured interest.

(e) In view of the opinion expressed in the foregoing paragraphs, it is proved beyond doubt that the insurer has never brought about the terms and conditions and informed to the complainant as a result of which the insured has no knowledge about the same. Therefore, the insurer has no logic underlying in his arguments. In the circumstances and in the absence of any material placed before this Forum on behalf of the insurance company to establish that there was no negligence or deficiency in service communicating the terms and conditions. Then the doctrine of Res-ipsa lo-quitor will get attracted and we hold that the insurer is held liable to pay compensation.

14. Point No.2(a): The insurer has taken shelter under the exclusion clause and said clause was not brought to the notice of the insured at the time of proposal or renewal of the policy then the insured would be entitled to get reimbursement. In case of ambiguity arises in the contract of insurance, the benefit thereof has to be given to the insured. It is reiterated here that there is no automatic renewal of policy on payment of premium and will be done with mutual consent as the insured is in the habit of purchasing the policy since 3 years to cover the risk.


When the opponents have pre-empted rights of the complainant by slamming the doors against him, then the insurer cannot claim the relief under exclusion clause, so the Consumer Forum will stepin to salvage the situation in favour of the insured to award required compensation uprightly. As a result, it is inevitable to hold that the opponents have rendered deficiency in service.

(b) It is worthwhile to quote the following decisions of the Hon’ble Supreme Court in the case of 1) United India Insurance Co., Ltd., V/s M.K.J. Corporation III, vide 1996 C.T.J. (8) S.C. wherein the said exclusion clause, the dictum of ruling given has definite bearing in the present case on hand, as they have not communicated the terms and conditions to the insured at any point of time as held by the Hon’ble Supreme Court. It is the duty of the insurer in the contract of insurance to disclose all facts known to him and non-communication of exclusion clause to the insured debars the insurer to take any advantage of the exclusion clause (supra) and if his plea is accepted, it is nothing but subversion of justice.

(c) To corroborate our views on the lines stated above, we quote the principles laid down in the case No.26/2005 dtd.15.07.2008 of Oriental Insurance Co., V/s Bashier Ahamed M.I.R. of the Hon’ble State Commission of Jammu & Kashmir is as under:

Insurance – Exclusion Clause – Applicability – Shelling made by Foreign enemies hit nearby electric station – short circuit caused in electric supply. Fire broken out which engulfed insured stock- Report of concerned Police Station produced in support of exclusion clause existed in contract of insurance – never communicated to insured. Complaint allowed by Forum – order upheld in appeal.

(d) The learned advocate of the complainant has submitted one reported judgement of the Hon’ble Supreme Court in Appeal No.6895 of 1997 dtd.22.02.2000 in respect of M/s. Modern Insulator Ltd., V/s Oriental Insurance Co., Ltd., and argued that the principles laid down in the above case is aptly applying to the present case. Now adverting to the facts of the present case on hand, we are of the opinion that the ratio decidendi of the above case will certainly applicable to the case on hand. Accordingly, we are of the opinion that the exclusion clause cannot be applied in the present case when the terms and conditions were not at all communicated to the insured and hence we undoubtedly hold that the insurer are deficient in rendering prompt service.

15. Point No.3: In view of our findings on above points, the insurer is required to extend prompt settlement, which is a part of their statutory service and the claim of reimbursement must be settled within a reasonable time. In the instant case, the repudiation of the claim for reimbursement of genuine medical expenditure is held to be invalid and unjustified, we do not find any favour as a result they are non-est in the eyes of law. Hence, the complaint filed by the complainant has to be allowed as we found nexus between negligence and deficiency in service and the complainant is entitled to avail the benefit of insured amount to the extent of Rs.15,000/- as per the prescribed limit in the insurance policy and it is upright and appropriate to award Rs.3,000/- as compensation towards delay and deficiency of service and Rs.1,000/- as litigation expenses. In the result we inclined to pass the following order.

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

1. The complaint filed by the complainant is partly allowed.

2. The 1st opponent is hereby directed to reimburse the medical expenditure incurred by the complainant to the extent of Rs.15,000/- as per the limit in the insurance policy and Rs.3,000/- towards the deficient act done by them in not rendering the prompt service and Rs.1,000/- as court costs, amounting to Rs.19,000/- to the complainant, within one month from the date of receipt of this order, failing which the amount shall carry interest at the rate of 9% P.A. from the date of default till realisation.

3. The 2nd opponent is hereby directed to assist the complainant to get the awarded amount from the 1st opponent.

5. Send the copies of the order to the parties.

Rajagopal.Y.P.

S/o Putte Gowda,

Major, aged about 28 yrs,

R/at No.30, I Main,

I Stage, Parimalanagar,

Nandini Layout,

Bangalore – 560 010.

…. Complainant.

V/s



The Oriental Insurance Company Ltd.,

Rep. its Manager,

D.O.XII Jayalakshmi Mansions,

II Floor, 1001/56, Dr.Rajakumar Road,

IV Blk, Rajajinagar, Bangalore-10.





…. Opposite Party







-: ORDER:-



This complaint is for a direction to the Opposite Party to pay Rs.52,500/- with interest at 18% Per Annum from the date of complaint on the following grounds:-

On 10/11/2006 the complainant purchased TVS APACHE motorcycle bearing No.KA-02 – EX-802 and got the same insured with Opposite Party for the period from 09/11/2006 to 08/11/2007. On 30/03/2007 at about 3.30 p.m. he parked the said vehicle near LIC office, Yeshwanthpur and went away to attend his personal work; when he came back, he noticed that the vehicle was not found at the place where he was parked. After searching for the vehicle, he lodged complaint with police on 31/03/2007 and also sent information to the Opposite Party.


After investigation, police filed ‘C report. On 12/10/2007 he sent a letter to the Opposite Party requesting to settle the claim as early as possible. As per terms and conditions of the policy, the Opposite Party is liable to pay the declared value of the insured vehicle, as the policy was in force at the time of the incident. Instead of settling the claim, the Opposite Party sent a vague reply. The inaction on the part of the Opposite Party amounts to deficiency of service. Hence, the complaint for a direction to the Opposite Party to pay the declared value of the vehicle.





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

The vehicle in question was insured for the period from 09/11/2006 to 08/11/2007. The policy so issued is subject to various terms, conditions exceptions and limitations thereof. The liability of the insurer under the insurance policy is on observations of statutory provisions terms and conditions of the contract of insurance. The declared value of the vehicle is Rs.52,500/-. The Opposite Party has no knowledge about the theft of the vehicle on 30/03/2007 as alleged. The complainant intimated about the alleged loss only on 12/10/2007 more than six months after the alleged loss. The statement that the complainant intimated about the theft of the vehicle on 31/03/2007 is false. The complainant has got the said document forged so as to make it appear that he had intimated the Opposite Party about the theft of the vehicle on 31/03/2007. If the complainant had submitted the letter dated 31/03/2007, the Opposite Party would have immediately issued the claim intimation letter and claim form to be submitted by the complainant duly filled up.


The complainant has created a false document to facilitate the claim. After the police submitted final ‘C' report on 10/10/2007 stating that the vehicle is not traced, the complainant took steps to inform the Opposite Party about the theft of the vehicle as per letter dated 12/10/2007. As per letter dated 23/10/2007, the claim was repudiated on the ground of delay in intimation to the insurer as per Condition No.1 of the policy. The complainant was to intimate the insurance company immediately after the theft of the vehicle which he failed to do and he intimated the Opposite Party only after the police filed ‘C' report on 10/10/2007. There is no deficiency or negligence in service as alleged by the complainant and therefore the complainant is not entitled to the relief prayed for.


The complaint dated 31/03/2007 given to policy clearly indicates that the complainant had left the key in the vehicle itself. This negligent act of the complainant shows that the complainant had not taken reasonable steps to safeguard the vehicle from loss or damage and the complainant cannot be compensated for his own negligence. As per condition No.4 of the insurance policy, the complainant was required to take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition. Therefore, the complainant is not entitled to any relief.

4. In support of the respective contentions both parties have filed affidavits. We have heard arguments on both side.





5. The points for consideration are:-

1. Whether the complainant has proved deficiency in service on the part of the Opposite Party?



2. Whether the complainant entitled to the relief prayed for in the complaint?



6. Our findings are:-

Point No(1) : In the Affirmative

Point No(2) : As per final order,

for the following:-



-:REASONS:-

7. The fact that the complainant had insured his vehicle with Opposite Party for the period from 09/11/2006 to 08/11/2006 is admitted. The contention of the complainant that on 30/03/2007 at about 3.30 p.m. the said vehicle was stolen from near LIC Office, Yeshwanthpur and on the complaint given in that regard, police filed ‘C' report is also not seriously disputed. The complainant claims that he gave intimation to Opposite Party on 31/03/2007, on which date he gave complaint to police also. But this fact that the complainant had intimated the Opposite Party about theft on 31/03/2007 is denied. At Annexure – D, Ex.C-4, the complainant has produced the copy of the letter dated 31/03/2007 addressed to the Opposite Party. Through this letter the complainant intimated the Opposite Party about the theft of the vehicle on 30/03/2007.


This letter also bears the seal of the Opposite Party for having received the same. Therefore, we are unable to uphold the contention of the Opposite Party that the letter dated 31/03/2007 is concocted document. Both parties have not produced the copy of the letter dated 23/10/2007 through which the Opposite Party repudiated the claim of the complainant. However, it is admitted by the Opposite Party that the claim was repudiated on the ground of delay in giving intimation to the insurer. If we consider the letter dated 31/03/2007 it goes to indicate that on the very next day of the incident itself, the complainant sent the letter intimating the Opposite Party about the theft of the vehicle. Assuming that the said letter is not received by the Opposite Party, the next intimation given to the complainant is on 12/10/2007.


Therefore, if the intimation regarding the theft of the vehicle was on 12/10/2007, there is delay of about six months in giving intimation to the insurance company. But in our opinion the delay in giving intimation itself cannot be made the ground to repudiate the claim. As per condition No.1 of the terms and conditions extracted in para-12 of the version, the insured is required to give notice in writing to the insurance company immediately upon the occurance of any accidental loss or damage. But no period is prescribed in condition No.1 within which such intimation is required to give to the insurer.


When no period is prescribed to give intimation, the delay in giving intimation cannot be made a ground to repudiate the claim. In the decision reported in IV 2008 CPJ 211 in the case of ORIENTAL INSURANCE COMPANY LIMITED VS. PARVESH CHANDER CHADHA, on which the learned counsel for complainant relied upon in similar circumstances, the claim was allowed directing payment of 75% of the insured amount. That was also a case where there was delay of about four months in giving intimation to the insurance company regarding theft of the insured vehicle. It is in those circumstances, the District Forum directed the insurance company to settle the claim on non standard basis at 75% and Hon’ble National Commission upheld the order passed by the District Forum.


In the case on hand also having regard to the facts and circumstances of the case in our opinion it is just and proper to direct the Opposite Party to settle the claim of the complainant on non standard basis at 75% of the loss. In our opinion, repudiation of the claim on the sole ground of delay in giving intimation to the insurance company amounts to deficiency in service. In the insurance policy, the declared value of the vehicle is given as 52,500/-. Therefore, on non standard basis, the complainant is entitled to 75% of the declared value of the vehicle. In the result, we pass the following:-



-:ORDER:-



1. The complaint is ALLOWED.
2. The Opposite Party is directed to settle the claim of the complainant on non standard basis at 75% of the declared value of the vehicle and to pay the same with interest at 9% Per Annum from the date of the complaint till the date of payment.
3. The Opposite Party shall also pay costs of Rs.2,000/- to the complainant.
4. The complainant is directed to surrender the vehicle documents to Opposite Party.
5. Compliance of this order shall be made within eight weeks from the date of communication.
6. Send a copy of this order to both parties free of costs, immediately.
7. Pronounced in the Open Forum on this the 09th Day of JULY 2009.

Sri.K.Isaq,

S/o. Ibrahim,

Aged about 57 years,

R/A. Kottigeri House,

Farangipete, Mangalore. …….. COMPLAINANT



(Advocate: Sri.S.K. Ullal).



VERSUS



The Divisional Manager,

The Oriental Insurance Co. Ltd.,

Divisional Office,

Vishnu Prakash Building,

2nd & 3rd Floor, Post Box No.35,

Court Road, Udupi. ……. OPPOSITE PARTY








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

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

The Complainant is the owner of mechanized fishing boat bearing registration No.F-MNG 950 and the boat was insured with the Opposite Party as per terms and conditions of the policy bearing No.422700/MH/20006/070 valid as on 13.5.2006.

It is submitted that, on 13.5.2006 at about 1.00 a.m., when the Complainant’s boat was engaged in fishing off Panambur Mangalore in about 6 fathoms of water, the bottom part of the hull of said boat was accidentally broken, as a result sea water gushed into the boat. The tindel and the crew of Complainant’s boat tired their level best to pump out and empty the water but it went vain and the sea water gushed to the engine room and fishhold of the boat and the engine was abruptly stopped and with great difficulties the damaged boat was towed to Sandspit, Bengre, Mangalore at about 10 a.m., and salvaged. The insured and his men had taken all possible steps to save the vessel from the total loss but the hull and the engine of the boat suffered extensive damage which required repairs. The boat was hauledup at Sandspit and M/s.Vailankanni Enterprises estimated the cost at Rs.5,06,500/- to make the boat seaworthy. In order to get his boat repaired the Complainant entrusted the work to the said repairer.

It is submitted that immediately after the mishap he had lodged claim with the Opposite Party and submitted necessary documents for settlement of the claim. It is submitted that on one or the other pretext ever since the date of lodging of the claim the Opposite Party not settled the claim but postponing the same. Since they have postponed the settlement the Complainant has no other option but to pay the entire cost of the repair of the said boat i.e., Rs.5,18,140/-. Thereafter submitted the bills to the Opposite Party and the Opposite Party contended that the bills submitted by them does not reveal the payment of registration of the dealer of spare parts and repairer under VAT and payment of VAT.

It is also submitted that the Opposite Party had engaged the service of 2nd surveyor to assess the loss but the Opposite Party without reimbursing the amount paid by the Complainant deliberately not settled the claim till this date amounts to deficiency in service and hence the Complainant caused legal notice to the Opposite Party by demanding the insurance amount but the Opposite Party failed to comply the same and hence it is contended that the repudiation is bad at law and filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party to pay a sum of Rs.5,18,140/- along with interest at 18% p.a. from 13.5.2006 and also to pay Rs.1.00 lakh as compensation and cost of the proceedings.



2. Version notice served to the Opposite Party by RPAD.

Opposite Party appeared through their counsel filed version admitted the policy and the said policy is valid from 09.08.2005 to 08.02.2006 and extended upto 8.8.2006.

The Opposite Party submits that the Complainant has submitted the bills of repair without supportive of documents the claim could not be settled by the Opposite Party and it is denied that the Complainant got repaired his boat by spending Rs.5,18,140/- through M/s.Vailankani Enterprises.

It is submitted that the Opposite Party written a letter to the Complainant on 16.4.2007 to produce the bills issued by the repairer/dealer registered under VAT or if not registered under VAT to produce such bills supported by all the concerned material purchase bills but the Complainant not complied the same. The Opposite Party submits that they have done an independent investigation at their end and as per the investigation report the repairer only attended the labour or the spares and materials supplied by the Complainant himself.


And it is contended that M/s.Delta Marine Services got the survey reports for an exorbitant amount without enclosing the detailed photographs and the Opposite Party Company put certain queries that surveyor’s initial word as to loss around Rs.1.00 to 1.50 lakhs and the 1st surveyor has evaded the letter dated 16.4.2007 sent by the Opposite Party and submitted that there is collusion between the Complainant, agent, repairer and surveyor in foisting false estimate, bills and survey report. The Opposite Party therefore referred the matter for 2nd survey by a competent Surveyor TIM Ashraf who assessed the actual loss at Rs.94,500/-. Therefore the liability of the Opposite Party would be Rs.94,500/- and not more than that. The Complainant concocted the bills and contended that there is no deficiency and prayed for dismissal of the complaint.



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

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



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













(iii) What order?

4. In support of the complaint, Sri.K.Isaq (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. One Sri.K.J. Antony (CW2) – witness of the Complainant filed affidavit and answered the interrogatories served on him. Ex C1 to C8 were marked for the Complainant as listed in the annexure. One Mr.Sharath Kumar (RW1), Divisional Manager of the Opposite Party, one Sri.S.P. Hegde (RW2) – working as Investigation of Insurance Claims – witness of the Opposite Party, one Mr.Ravindra (RW3) – working as Administrative Officer of the Opposite Party – witness of the Opposite Party and one Mr. TIM Ashraff (RW4) – working as Surveyor, Loss Adjuster and Claims Investigator – witness of the Opposite Party filed counter affidavits and answered the interrogatories served on them. Ex R1 to R13 were marked for the Opposite Party as listed in the annexure. Both parties have produced notes of arguments along with citations.

We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.

Point No.(ii) & (iii): As per the final order.
Reasons



5. Point No. (i) to (iii):

In the instant case, the facts which are not in dispute before the FORA is that, the Complainant obtained insurance policy for the mechanized fishing boat ‘summer’ bearing registration No.F-MNG 950 for a sum of Rs.10,00,000/- bearing policy No.422700/MH/2006/070 and the said policy is valid as on 13.5.2006 (as per Ex R1). It is also not disputed that the said mechanized fishing boat while engaged in fishing off Panambur Mangalore met with an accident on 13.5.2006 at about 10.00 a.m. and the boat was damaged and the same has been towed to Sandspit, Bengre, Mangalore and salvaged. One M/s.Delta Marine Services Surveyors appointed as a surveyor to assess the damage of the boat.

Now the point in dispute between the parties before the FORA that according to the Complainant to repair the said boat for making seaworthy he has spent Rs.5,18,140/- and the same has been paid to the repairer i.e., M/s.Vailankanni Enterprises Boat Building and Repairers Mangalore and produced the bills but the Opposite Party not considered the claim of the Complainant contending that the bills are not genuine and the same has not been issued under KST and CST. Further the Opposite Party to reduce the amount appointed a 2nd surveyor i.e., one TIM Ashraff Surveyor Cochin and offered the amount of Rs.94,500/- which is not acceptable hence came up with this complaint.

We have heard the learned counsels for the parties, perused the entire documents placed on record.

As we discussed herein above, after the accident the Opposite Party i.e. Insurance Company admittedly deputed the matter for assessment of damages to the surveyor called M/s. Delta Marine Services i.e., Marine Surveyors and Loss Assessors at Mangalore. The above said surveyor submitted the report on 4.1.2007 (as per Ex R2). We have perused the Ex R2 wherein, the surveyor proceeded and attended the above such spot on 13.5.2006 in order to investigate the damaged MFV fishing boat and assessed the damages.


While assessing the damages, the surveyor has taken note that the above said fishing boat met with an accident at about 10 hours, on 13.5.2006 the boat was reached Bengre, the said boat was almost ¾ filled with water and the boat grounded close to the shore due to low tied and further noted that on 13.5.2006 the vessel was filled with ¾ portion of water and the vessel was secured by rope to the shore to avoid sinking of the vessel and subsequently on 15.5.2006 once again he has inspected the boat and the surveyor noticed following damages:-

1) Two numbers of holes with rough edges, one hole located at forward – below Fishhold and one hole located at underneath the Hull. The size of the hole about 1” in dia.

2) General weakening of joints due to Holes being at the joints.

3) Fishhold insulation rendered wet and unfit, warranting complete dismantling and renewal.

4) Wooden planks and ribs damaged around the holes.

5) Due to flooding of engine room, major overhauling of engine and gear box warranted.



After noting the above damages, the surveyor recommended 250 cft. wood for the Hull repairs and other items i.e., copper fastenings recommended - 130 kgs. total loss recommended for Hull repairs Rs.3,99,000/-. For engine gear box repair recommended Rs.34,738/-, for overhauling charges recommended Rs.8,072/-. After deducting as per policy the net loss recommended by the surveyor i.e., of Rs.4,11,829/- less salvage Rs.3,500/-. Since the Opposite Party is not being satisfied with the report of the 1st surveyor issued a letter dated 16.4.2007 seeking certain clarifications:

It is worthwhile to reproduce in verbatim as under:

1. You have informed the undersigned in the presence of Mr.Ravindra (A.O.) on 13.05.2006 when we both visited the spot of accident on 13.05.2006 for inspection that the approximate liability of the company would be between Rs.1 lakh to 1.50 lakhs. There afterwards, we have vide our letter dated 22.5.2006 requested you to keep us informed about the developments of the claim. You have neither replied our said letter nor discussed about the claim before you finally despatched your captioned survey report. Surprisingly, the loss assessment is nearly 3 times more than your initial estimation as stated above.

2. The report was released by you after a delay of over 9 months and the cause of delay was not substantiated in your report.

3. You have allowed 250 cft of wood and other accessories for the hull repair amounting to Rs.3,99,000/- without any photographs of the dismantled hull and its stage by stage reconstruction. In the absence of photographs, we fail to understand how the assessment could be justified.

4. The report does not contain anything about the re-inspection of the repaired vessel and the photographs of the repaired vessel also not furnished.



From the above letter one can make out that the Opposite Party is not satisfied with the assessment made by the above said surveyor and sought clarification that the surveyor has verbally told Mr.Ravindra i.e., staff of the Opposite Party Company, the liability of the company approximately it may come to Rs.1.00 to 1.50 lakhs. Just because it has crossed Rs.1.50 lakhs the Opposite Party Company is doubting the surveyor’s report is proved. However, the surveyor gave a clarification on 24.5.2007 by stating that on 13.5.2006 the liability of the Company is about Rs.1.00 to 1.50 lakhs is only an approximate value and it is not the definite figure.


It is undisputed that on 13.5.2006 the vessel was sub-merged in the water and subsequently the boat was hauledup on shore only on 14.5.2006. The Opposite Party Company not disputed that on 14.5.2006 the vessel was hauledup. It is the definite case that on 13.5.2006 the vessel was submerged in the water how one can expect definite figure. The clarification sought by the Opposite Party Company is baseless as far as this point is concerned.

As far as delay of nine months are concerned, surveyor has clearly stated that there was no written instruction or surveyor’s appraisal form and the policy was not sent and there was no specific entry since he was engaged in some other work he could file the report on time. Nine months delay is though considered to be a late but we can make out that it is not deliberate.

As far as 250 cft. wood is concerned, the surveyor had given clear clarification that, “the assessment of wood is round logs. When round log is made into sizes, there will be huge wastage depending upon the size and shape of the structure to be made. Wastage will be very much on the higher side, when the ribs at the aft. of the vessel is made as it is almost has to be shaped in large curved shape. Large quantity of wood has to be used for repairs because when the holed planks are removed number of ribs/frame get damaged. Also when he Fishhold is dismantled for reconstruction, deck beams and stringers also has to be dismantled. When an old vessel is opened up for repairs, consequential damages are more. Hence more wood is required for carrying out repairs”.

The above clarification we do consider because the above assessment of wood is round logs, when round log is made into sizes there will be huge wastage depending upon the size and the shape of the structure.

Further we have observed that the above surveyor while giving clarification for the recommendation of the wood is concerned is not acceptable because the surveyor has reduced the 250 cft., wood into 215 cft., but while reducing the said wood he had noted that for good order sake he has reduced the wood required for the Hull. It is significant to note that the assessment of the loss should not be as per the wish of the Opposite Party Company or in other words the surveyor should not submit the report to satisfy the Insurance Company. The surveyor always should not forget that they are the expert and the independent surveyor to assess the loss. In view of the above, we do not agree with the surveyor as far as recommendation of 250 cft., wood is concerned.

In the present case, the 1st surveyor had gone to the spot and inspected the boat and has given the extent of damages.


The said report placed on record. When the 1st surveyor had already given the report and assessed the damages there is no question of reassessment of the same damages by the another surveyor when there is no malafide intention on the part of the 1st surveyor while issuing the report. The reason given by the Opposite Party is uncalled for and deprecated. If reassessment of any particular item was necessary, then it could be referred back to the same surveyor who had reported about the damages. However, in the present case the Opposite Party Company had confusion which existed in the 1st report has been clarified by the 1st surveyor. Even though the Opposite Party Company is not satisfied appointed another surveyor which is not justifiable.

As a matter of fact, we have gone through the 2nd surveyor report, firstly our attention was drawn towards the views expressed by the 2nd surveyor in page No.10 with bold letter by stating that the court of law who always take a sympathetical view to the vessel owners and also in another page No.18 he has expressed his view that the insured take undue advantage of the kindness and humane attitude of the courts, when it comes to and they know that if the false claim with bills fabricated is not settled by the insurance company the best way is go before FORAS and Civil Courts under a false pretext of a grievance. The above view of the surveyor is unwarranted and uncalled for. The surveyor has gone beyond his limit. The duty cast on the surveyor to assess the loss as an expert and submit the report and not more than that. But in this case the surveyor has gone beyond his purview such practice is hereby deprecated.


The surveyor has got no authority to express his personal view in his report that itself shows that he is more anxious to curtail the claim of the Complainant by satisfying the Insurance Company by using unwarranted and uncalled views. No court of law passes order/judgment on sympethetical view. It is not possible to any court of law to draw an order or judgment other than the material/cogent evidence available on record. The insurance company should see that the survey report should not contain surveyor’s personal view about court of law and see that surveyor deputed by them should submit their report only on the subject.

However, we have noticed that the 2nd surveyor not visited the spot nor personally investigated the Hull and the same was prepared after lapse of two years without conducting any spot investigations which is not acceptable in the interest of justice. The appointment of 2nd surveyor without being any justifiable ground the company cannot brushed aside a report of the 1st surveyor.

It is significant to note that the appointment of 2nd surveyor is to be deprecated because the insurance company wants that it should not pay the due amount but tries to manipulate the amount which it wants to pay by appointing surveyor after surveyor unless a report which suits it is submitted. The 2nd survey report of TIM Ashraff was liked by the insurance company because the amount calculated by the Ashraf is less or otherwise they could have appointed another surveyor to suit them. Similar question cropped up before the Hon’ble Jaipur State Commission in a case of Veerendra Chowdary Vs United Insurance Company, the Jaipur State Commission held that the Insurance Company cannot appoint one surveyor after the another. The decision was rendered and reported in CPJ (1998) Volume-III Page 154 is self explanatory.

As a matter of fact it is a primary duty of the insurance company to repair the Hull. If the insurance company does not get the Hull repaired then only the claimant gets the Hull repaired.

In this case the 1st survey report will go to show that the Hull was damaged to the extent indicated by the surveyor in his report and he had made a detailed discussion and clarified the points sought by the company. We do not find any discrepancies in 1st report. Hence the survey report of the 1st surveyor dated 4.1.2007 is acceptable.

The another dispute came up before this FORA with regard to the claim of the repair bill. That the Complainant claimed Rs.5,18,140/- for the repair of the Hull. It is contended by the Opposite Party that the bills of repair without supportive documents, the bare bills on letter heads issued by the repairer dealers not registered under VAT cannot be entertained and contended that the Opposite Party being a Public Limited Company dealing with the public money has repudiated the money of the Complainant only after considering all relevant facts and points and by applying their mind. We do consider if at all the Opposite Party Company has been inserted the above said rule in their policy conditions. There is no rule or condition in the policy that the damaged Hull required to be repaired only through any repairer who pays KST or CST or VAT.


Further the RW1 in interrogatories No.33 answered that as per the Karnataka Value Added Tax Act, it is mandatory for the dealer to get VAT registration if his turn over crosses Rs.2.00 lakhs, as a public sector company cannot entertain the bills on letter heads and without VAT registration leading to tax evasion. We are very surprise to point out here that when the public sector company claims that they are not entertaining the bills without VAT registration then what prevented the public sector company to add such clauses in the policy conditions to avoid the above complications. Just because the dealer is not registered under the VAT the claim of the insured cannot be overlooked. As we discussed herein above in preceding paras the primary duty of the insurance company to repair the Hull/vessel/boat/vehicle etc. etc.


If the insurance company does not get the Hull repaired then only the claimant gets the Hull repaired. In our opinion to avoid the disputes between the Opposite Party Company i.e., Insurer and the Insured, the Opposite Party Companies can very well authorize some of the VAT registered repairer dealers in their jurisdiction to avoid the fabricated bills or false claim. But no such attempt has been made by the companies so far. Under such circumstances, the Opposite Party Company cannot insist the parties to produce KST and CST repair bills without there being any conditions in the policy.

However, the bills produced by the Complainant before the FORA issued by M/s. Vailankanni Enterprises for Rs.5,18,140/- to repair the Hull cannot be accepted in full. The surveyor i.e., Delta Marine Services recommended 250 cft., wood and copper items 130 kgs., but the cash bill given by M/s.Vailankanni Enterprieses is varies. There is no explanation/evidence on record in order to show that the 250 cft., wood and 130 kgs., of copper items are not sufficient. In the absence of the same, we hold that the 1st surveyor’s report dated 4.1.2007 is acceptable.

In view of the above discussions, we are of the considered opinion that the 2nd survey report is of no value. The assessment of loss by the 1st surveyor should be accepted and by not doing so the Insurance Company has committed deficiency in service. Hence we hereby direct the Opposite Party Company to pay Rs.4,11,829/- to the Complainant along with interest at 8% p.a. from the date of claim till the date of payment.

However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation. And further Rs.1,000/- awarded as cost of the litigation expenses. The payment shall be made within 30 days from the date of this order.



6. In the result, we pass the following:


ORDER

The complaint is allowed. Opposite Party is hereby directed to pay to the Complainant Rs.4,11,829/- (Rupees four lakh eleven thousand eight hundred twenty nine only) along with interest at 8% p.a. from the date of claim till the date of payment. And further Rs.1,000/- awarded as cost of the litigation expenses. The payment shall be made within 30 days from the date of this order.

Shri Chaman Lal S/O Shri Sohan Lal,

Resident of Village Jubbar, P.O. Barog,

Tehsil and District Solan, H.P.



… Complainant.

Versus





The Oriental Insurance Company Ltd.,

The Mall Solan,

Through its Branch Manager.



…Opposite Party




O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant, avers that he is owner of vehicle Tata bearing registration No.HP-14A-5181, which was insured with the OP-Company vide policy bearing No.263103, commencing from 24.01.2005 to 23.01.2006. It is averred that the aforesaid vehicle met with an accident on, 30.12.2005 and fell into a deep river causing extensive damage to the vehicle, as well, as, the goods, which were being carried in it.


The complainant, further, proceeded to aver, that, the aforesaid incident, was brought to the notice of the OP-Company, and thereafter, insurance claim was lodged with it. The OP-Company, it is averred, dilly-dallied the settlement of insurance claim, on one pretext or the other. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, inasmuch, as, lack of deficiency in service, status of the complainant as a consumer and their being intricate question of law and facts. On merits, it is contended that the accident took place on account of overloading and hence, there was breach of terms and conditions of the insurance policy. However, it is contended that Surveyor and Loss Assessor Mohinder K. Sharma assessed the loss on net of salvage basis to the tune of Rs.3,49,500/- and since, there was breach of terms and conditions of the insurance policy, the OP-Company was well within its right to repudiate the claim of the complainant. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

5. The vehicle of the complainant, met with an accident on, 30.12.2005 and an FIR qua the said accident was lodged with the concerned Police Station. The OP-Company, has, repudiated the claim, as asserted by the complainant, merely on the strength of the provisions of the insurance cover, having come to be infracted inasmuch, as, the vehicle, at, the relevant time, was over loaded, which fact of overloading, hence, begot the accident.

6. The OP-Company, has not, adduced any proof qua the fact that the overloading of the vehicle, was the prima dona or the preponderant cause of the vehicle having met with an accident, especially when the mandate of law as laid down in Latest Himachal Law Judgment 2009 (HP) 422, envisages that, in, case the insurer seeks to exculpate its liability on the plea of the provisions of the insurance cover having come to be infracted inasmuch, as, the vehicle insured at the relevant time was carrying passengers beyond the permissible limits, the breach of the said salient canon of the insurance cover, is, not only required to be contended, but, is, also required to be proved to be the prima dona or preponderant cause of the accident. Given the parameters, of, the judgment as reported in HLJ 2009 (HP)422, the, OP-Company, hence has failed to accomplish the mandate of the parameters as enshrined in the afore-mentioned judgment inasmuch, as, when it has failed, to, adduce evidence both satisfactory and cogent that the carrying of passengers beyond the permissible limit in the vehicle at the relevant time, was the prima-dona or preponderant cause of the accident, as, a natural corollary, then, for lack of such proof, the OP-Company, cannot, hence, seek to, exculpate its liability to defray to the complainant, the amount of the sum insured.

7. Since, the vehicle was insured for an amount of Rs.4.60 lacs on IDV, and the and the surveyor vide its report Annexure OP-3 has assessed the loss, on net of salvage basis at Rs.3,49,500/- and the report of the surveyor having remained unrebutted and un-controverted and the surveyor being an expert in his field hence, being an impartisan person, his report, is liable to be accepted to assess the loss caused to the insured vehicle.

8. In the light of the above, the complaint is allowed and OP-Company is hereby directed to indemnify the complainant, on net of salvage basis to the extent of Rs.3,49,500/- along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 20.07.2007, till making full payment of the amount aforesaid. In addition to this, the OP-Company is also held liable to pay to the complainant, the litigation cost, which is quantified at Rs.3000/-.


These payments shall be made to the complainant, by the OP-Company, within a period of forty five days, after the date of receipt of copy of this order. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Manoj Kumar S/O Shri Hem Raj,

R/O Village Jammodhar,P.O. Jassal,

Tehsil Karsog, District Mandi, H.P.





… Complainant.

Versus





M/S Oriental Insurance Company Ltd.,

Mythe Estate, Kaithu, Shimla-171003,

Through its Divisional Manager.





…Opposite Party





O R D E R:

Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainant, by invoking the provisions of Sections 11 & 12 of the Consumer Protection Act, 1986, against the OP-Oriental Insurance Company Ltd. “in short OP-Company”. The complainant avers that he is registered owner of Swaraj Mazda “in short vehicle” bearing registration No.HP-63-0661, insured with the OP-Company, for a sum of Rs.4.40 lacs, for a period of one year commencing from 16.06.2005 to 15.06.2006. He further avers that the aforesaid vehicle, unfortunately, met with an accident, on, 01.04.2006, during the existence of the insurance policy and suffered extensive damage. It is further averred that, the factum of having met the vehicle, with an accident, was report to the OP-Company, as also, to the Police, upon which, a surveyor was appointed by the OP-Company who inspected the spot and carry out the spot survey. Thereafter, he, complied with the requisite formalities, and requested the OP-Company, to settle and make the payment of the insurance claim, but the OP-Company instead of settling the insurance claim, vide communication dated 10.05.2006 asked him, to explain as to why the claim, be not repudiated for want of valid and effective driving licence. Hence, feeling aggrieved and dissatisfied, it is averred that, there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, lack of deficiency in service, and breach of terms and conditions of the insurance policy. On merits, it is contended that at the time of accident, the driver of the afflicted vehicle was not having valid and effective driving licence, to drive the same and the licence possessed by him, was only valid for LMV (Non-transport), whereas, the vehicle is categorized as truck falling in the category of medium Goods Vehicle or Medium commercial Vehicle. As such, the action of the OP-Company, in repudiating the claim, vide communication referred to above, cannot be held to be unlawful. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

5. The vehicle of the complainant met with an accident, on, 01.04.2006. An FIR with regard to the accident came to be registered in the Police Station and is appended as Annexure A-4. On the vehicle of the complainant meeting with an accident, the, complainant lodged a claim before the OP-Company, for, indemnifying to him the expenses incurred by him, in, repairing the vehicle.

6. The OP-Company has come to repudiate the claim of the complainant on the ground that the vehicle owned by the complainant, being registered as an open truck, as reflected by Annexure A-1, hence, a “goods vehicle” was driven by, a, driver, named Bhola Ram, who, as, divulged by Annexure A-3, had, a, driving licence to drive a non-transport vehicle, hence, with the vehicle falling in the category of a transport vehicle, necessitating, its, being driven by a driver whose licence is required to contain a specific endorsement of his being authorized to drive a transport vehicle, which endorsement does not exist, in, Annexure A-3, hence, the holder of Annexure A-3, who was driving the vehicle at the relevant time, while, not, holding a valid and effective driving licence to drive the category of the vehicle, owned, by, the complainant. Therefore, he was driving it, unauthorisedly, consequently the claim, as, lodged by the complainant before the OP-Company, came to , be, justifiably discountenanced.

7. Be that as it may, the, learned counsel appearing on behalf of the complainant has placed on record the decisions rendered by the Hon’ble HP State Consumer Commission, in F.A. No.110 of 2006 decided on 15.07.2008 in case M/S Oriental Insurance Company Ltd., versus Munish Rohal and First Appeal No.520/2007 decided on 02.12.2008 in case Kaushal Kumar Bhardwaj versus.


The Oriental Insurance Company Ltd., wherein, the Hon’ble HP State Consumer Commission, while, considering the fact of the driver of the vehicle being not authorized to drive a specified category of the vehicle, inasmuch, as, their being no endorsement, in, his driving licence, as, ordained by the provisions of the Motor Vehicle Act and Rules framed there under, to, drive a transport vehicle, had, held while considering and distinguishing Judgments of the Hon’ble Apex Court rendered in 2007 CTJ 445 (Supreme Court) (CP), AIR 2008 Supreme Court 1408 and 2008 ACJ 1307 on which judgments, reliance, has, been placed by the counsel for the insurer, in, repudiating the claim of the complainant, on, the score, that, their being an infraction of a solemn condition, as, spelt out in the insurance policy, necessitating the driver driving the vehicle at the relevant time, to, hold a valid and effective driving licence, inasmuch, as, when he comes to drive a transport vehicle, it, concomitantly necessitates an, endorsement by the competent Motor Licensing Authority of his being authorized to drive a transport vehicle, that, since the Rule enjoined in clause 10 of the Procedural Manual of Motor Claims (Own damage and third party), had, not gone, into, by the Hon’ble Apex Court in rendering the decisions as relied upon by counsel for the insurer, as such, when the impact of the aforesaid Rule contained in clause 10 of the Procedural Manual of Motor Claims (own damage and third party) had, been, considered by the decisions rendered by the National Consumer Commission in judgments reported in II (2001) CPJ 53 (NC), 2002 CCJ 64 NC and 2002 NCJ (NC) 632 and with the Hon’ble National Consumer Commission having held in them that when breach of terms and conditions of the insurance policy is occasioned, then, such claims ought, to, be treated as non-standard claims and had further, directed that, for, breach of conditions of policy, as, has been occasioned in this case, where breach, is, comprised in the holder of a licence, not holding a valid and effective driving licence to drive the same, it, should be processed, as, a, non-standard claim, inasmuch, as, the insurer should be directed to pay 75% of the amount.

8. While following the mandate of the decisions, as referred to hereinabove, we are of the considered view that where the holder of the driving licence did not for the reasons ascribed hereinabove possess, a, valid and effective driving licence, to drive, a, vehicle, nonetheless, his claim ought not to have been repudiated by the OP-Company and should have been processed on, a, non-standard basis, as done by the Hon’ble National Commission, on whose judgment, we rely. Obviously, in, the OP-Company repudiating the claim of the complainant has erred in law, which not only amounts to deficiency in service, but, also constitutes an indulgence in an unfair trade practice.

9. The report of the surveyor as contained in Annexure R-2, while assessing the loss to the vehicle has reduced the amount, as reflected in the bills, which have been appended by the complainant and bear Annexure A-7. The act on the part of the surveyor to reduce the amount of expenses detailed in Annexure A-7 appears to be result of non-application of mind, as, no sufficient and good reasons have been ascribed by him in coming to do so. Hence, for the aforesaid reasons, the loss, as, assessed by the loss assessor, while discarding the expenses as detailed in Annexure A-7, and that, too, without any reasons, hence, vitiates his report, whereas, Annexure R-2, ought not to have, so, discarded.

10. In the light of the above discussion, the complaint is allowed in the following terms:-

i) That the OP-Company shall indemnify the complainant, on non-standard basis, i.e. to pay 75% of the amount of Rs.2,20,000/-;



ii) That the aforesaid amount to be paid to the complainant, by the OP-Company, shall carry interest, at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e.30.05.2006, till making entire payment of the awarded sum;



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



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



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

M/S Yashpal Paint and Ply Store Adda Saran, VPO Kandhala Jattan, Tehsil Dasuya, District Hoshiarpur through its Prop. Taran Kaushal, aged 29 years, S/o Yashpal Rai, R/o VPO Kandhala Jattan, Distt. Hoshiarpur..


........Complainant

VERSUS

1.

P.N.B Adda Saran, VPO Kandhala Jattan, Tehsil Dasuya, District Hoshiarpur through its Manager.
2.

The Oriental Insurance Company Ltd., Divisional Office SCO No.18-19, Near Mini Secretariat, Chandigarh Road, Hoshiarpur, through its Divisional Manager.

......Opposite Party


1.

The complainant namely M/s. Yashpal Paint has filed the present complaint through its Proprietor, Sh. Taran Kaushal, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) "hereinater referred as the Act". In short, the facts of the case are that the complainant was having Cash Credit Account No.871318 with OP No.1 – PNB, Village and Post Office Kandhala Jattan, Tehsil Dasuya, District Hoshiarpur to the tune of Rs.14,00,000/-. The Complainant was availing the said cash credit facility. The OP NO.1 to cover the risk got insured all the articles lying in the store of the Complainant with OP No.2 – Oriental Insurance Company Limited, Hoshiarpur on dated 1.11.2006, valid upto 31.10.2007. The required premium was paid by OP No.1 to OP No.2 after adjusting the same in Cash Credit Account of the Complainant.
2.

It is the case of the Complainant that on 2.11.2007, the previous Insurance Policy in the name of the Complainant was got renewed by OP No.1 from OP No.2. It was specifically mentioned in the cover-note dated 2.11.2007 (renewed 20-3791), meaning thereby that the earlier Insurance Policy in the name of the Complainant was duly renewed.
3.

It is the allegation of the complainant that on the intervening night of 21/22-7/2008, the theft occurred in the store of the Complainant, causing the loss of Iron/steel. The matter was reported to police, consequently FIR No.118 Dated 28.7.2008 was recorded in Police Station Tanda, District Hoshiarpur Under Section 457/380 IPC. However, the police failed to effect the recovery of the stolen goods.
4.

It is further the case of the complainant that the claim was lodged with OP No.2. It was confirmed by the surveyor that theft had been committed. However, vide letter dated 28.1.2009, the OP No.2 informed the Complainant that stock of Iron allegedly stolen by unknown persons was not covered under the Insurance Policy. The complainant approached OP No.2, but the Insurance Company refused to accept his request. The reputation of the claim by OP No.2 is illegal, hence this complaint.
5.

OP NO.1 filed the reply. The Preliminary Objections vis-a-vis maintainability, estoppal, cause of action, the complainant is not a consumer and non-joinder of necessary and proper parties were raised. On merits, the claim put forth by the complainant has been denied. It is replied that as per the terms of the loan documents, it was for the complainant to get his articles insured at his own cost, failing which, the Bank had the right to get the article insured, though it is not mandatory for the Bank to do so. In the case in hand, the replying OP got insured all the Hypothecated goods and paid the premium, out of the amount of the Complainant to OP No.2, who in return issued cover-note NO.203791, valid upto 31.10.2007. It is further replied that OP No.2 renewed the Policy No.203791 and issued cover-note NO.289882 dated 2.11.2007, valid upto 1.11.2008.
6.

It is further replied that the dispute is between the complainant and OP No.2, as it is for the Insurance Company to settle the claim and answering OP has nothing to do with it. The replying OP is not responsible in any manner for the loss sustained by the complainant on account of theft and repudiation of claim by OP No.2.
7.

OP2 filed a separte reply . Preliminary objections vis-a-vis cause of action, maintainability, jurisdiction, non-joinder and mis-joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is denied that the replying OP issued the insurance policy in the name of the complainant. The insurance policy was issued in the name of M/S Pal Paint and Ply store . It is further replied that the complainant had cooked up a false story regarding the theft of iron/steel. The fact of the matter is that the theft took place on the intervening night of 21/22-07-2008, while FIR pertaining to the alleged theft was registered on 28.7.2008 i.e. after a gap of six days. It is denied that the theft was confimed by the surveyor deputed by the answering OP – Insurance company, rather he raised a doubt about the coverage of the stolen iron/steel. It is further replied that the stock of Iron/steel is not covered under the insurance policy. Thus, the claim was rightly repudiated .
8.

It is further replied that the insurance company had issued a ' Shopkeeper Insurance in the name of PNB Kandhala Jattan A/C M/S Pal Paint and Ply Store , Adda Saran, Kandhala Jattan, Distt. Hoshiarpur . Whereas the present complaint has been filed by Yash Pal Paint and Ply Store, Adda Saran , Kandhala Jattan Distt. Hoshiarpur. It is futher relied that as per terms and conditions of insurance policy, the shop premises insured by the policy must conform to the specifications of the Class 'A' construction, but in the present case, the place where the iron/steel was kept was free to transpass i.e. No gate had been provided. Even as per the FIR, the iron/stel was lying in the open area. As per terms and contions of the insurance policy issued to the complainant, it covers only the Burglary and Housebreaking, as such, it does not cover the theft as alleged in the compaint. It is further replied that the surveyor has assessed the loss of Rs. 2,17,179/-, thus, the amount claimed by the complainant is on higher side.
9.

In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, copy of Cover Note of insurance from 1.11.2006 to 30.10.2007 as Mark-A, cover note dated 2.11.2007 – Mark-B, copy of stock statement of 30.6.200 – Mark -C, copy of FIR dated 28.7.2008 – Mark-D,copy of letter issued by OP No.2 dated 28.1.2009 – Mark-E, photographs – Mark-F and Mark-G and closed the evidence.
10.

In rebuttal, the OP No. 1 tendered in evidence affidavit of A.K. Sharma – Ex. OP-1,whereas, the OP No. 2 tendered in evidence affidavit of Dr. Ajay Garg – Ex. OP-1/A, affidavit of Sham Sunder Sharma – Ex. OP-2/B, survey report – Ex. OP-3/C (12 photos of shop of complainant) – Mark OP-4 to Mark OP-15, letter dated 28.1.2009 – Ex. OP-16, insurance policy – Ex. OP-17, terms and conditions – Ex. OP-18 and closed the evidence on behalf of opposite parties No. 1 and 2.
11.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
12.

The OP No. 2 – Oriental Insurance Company Limited has repudiated the claim submitted by the complainant qua Mark-E and Ex. OP-16 on the ground that the stock of iron allegedly stolen on 21/22.7.2008 is not covered under the policy, hence due to lack of coverage the clam has been filed as "No Claim".
13.

The other facts are admitted. The case of the complainant is that he obtained the Cash Credit Facility from OP No. 1 – PNB. That OP No. 1 got insured the articles lying in the store through the Cover Note No. 203791 on 1.11.2006 valid upto 31.10.2007. The previous policy in the name of the complainant was got renewed by OP No. 1 through Cover Note No. 203791 on 2.11.2007. That unfortunately, on the intervening night of 21/22.7.2008, the iron/steel lying in the premises of the complainant was stolen by some unknown persons. The complainant lodged the claim with OP NO. 2, which was repudiated by the insurance company.
14.

The OP No. 2 had repudiated the claim on the ground that the iron/steel alleged to have been stolen is not covered by the insurance policy. The photo copies of the Cover Notes are Mark-A and Mark-B on the record. Cover Note No. 203791 valid from 1.11.2006 to 31.10.2007 is Mark-A and its close scrutiny makes it clear that "all kinds of paint, ply, hardware, sunmica, glass, cement, iron etc., and/or other related goods linked with the trade are insured."
15.

Cover Note No. 289882 valid from 2.11.2007 to 1.11.2008 is Mark-B. It has been recorded qua Mark-B that "all kinds of paint, ply, hardware, sunmica, glass and/or other related goods linked with the trade are insured."
16.

The learned counsel for OP No. 2 argued that qua Mark-A – Cover Note the word "iron" has been clearly mentioned, whereas, in the Cover Note – Mark-B, the word "iron" has not been mentioned, therefore, the OP-insurance company has rightly repudiated the claim on the ground that the iron/steel alleged to have been stolen is not covered.
17.

Mark-B is a Cover Note No. 289882 valid from 2.11.2007 to 1.11.2008, whereas, the theft took place on 21/22-7-2008 i.e., during the subsistence of the insurance policy. The case of the complainant is that on the intervening night of 21/22-7-2008, the iron/steel lying in the premises of the complainant was stolen by some unknown persons. The close scrutiny of the Cover Note – Mark-B makes it clear that other related goods linked with the trade are covered by the Cover Note – Mark-B, therefore, this Court can take judicial notice that iron/steel is very much linked with the trade of the complainant, as the complainant deals with the hard ware. Besides this, qua Mark-A – Cover Note No. 203791 valid from 1.11.2006 to 31.10.2007, the word "iron etc." had been specifically mentioned. The complainant got insurance policy renewed from 2.11.2007 to 1.11.2008 qua – Mark-B, therefore, it can be inferred that the word iron/steel had been inadvertently omitted from the Cover Note – Mark-B.
18.

The learned counsel for OP No. 2 also raised the arguments that the iron/steel alleged to have been stolen had been kept at a place not conforming to the requirements of the insurance policy, rather the place, where the iron/steel was kept was free from trespass, therefore the condition of forcible entry for committing of theft was not fulfilled. This limb of the argument is not available to the ld. Counsel for opposite party No. 2, as the claim has not been repudiated by the insurance company on this count.
19.

The OP No. 2 has also raised the plea that the replying OP had issued a shopkeepers insurance in the name of PNB Kandhala Jattan A/c M/s. Pal Paint & Ply Store, Adda Saran, Kandhala Jattan, Distt. Hoshiarpur, but the present complaint has been filed by M/s. Yashpal Paint & Ply Store, Adda Saran, VPO: Kandhala Jattan, Tehsil Dasuya, District Hoshiarpur, therefore, M/s. Pal Paint and Ply Store is also a necessary party. The perusal of the cover notes – Mark-A and Mark-B makes it clear that the policy has been issued in favour of PNB Kandhala Jattan A/c M/s. Yash Pal Paint & Ply Store, Adda Saran, Kandhala Jattan, Distt. Hoshiarpur, therefore, M/s. Pal Paint & Ply Store is not a necessary party to the lis.
20.

No other point was argued or urged.
21.

The complainant has lodged the claim with opposite party No. 2 to the tune of Rs. 2,69,596/-, whereas, the surveyor of OP No. 2 qua his report Ex. OP3/C has assessed the loss to the tune of Rs. 2,17,179/-. The complainant to prove the loss has only placed on record the Stock Statement to the tune of Rs. 20,31,160/-. The mere submitting of the stock statement is not sufficient to prove that the complainant has suffered the loss to the extent of Rs. 20,31,160/-. Therefore,the report of the surveyor qua Ex. OP-3/C is to be accepted as the Surveyor is an expert and also an independent person to assess the damage caused to the goods of the complainant, thus, we are of the opinion that the claim of the complainant can be allowed on the basis of the survey report – Ex. OP3/C.
22.

As a result of the above discussion, the complaint is accepted and the opposite party No. 2 – The Oriental Insurance Company Limited is directed to pay Rs.2,17,179/- to the complainant with interest @ 9 % per annum from the date of filing the complaint i.e. 4.3.2009 till realization alongwith litigation expenses of Rs.2,000/- within one month from the date of receipt of copy of the order.. Copy of the order be sent to the parties free of cost. File be consigned to the record.

Mohinder Kumar son of Shri Dewan Chand, resident of House No.101, New Colony, Balmiki Tirath Road, Near Amar Jyoti School, Amritsar, at present r/o. H.No.27, Gali No.2, Gopal Nagar, Haibowal Kalan,, Ludhiana.

….Complainant.

Versus

1. Oriental Insurance Co. Ltd., 222, Industrial Area ‘A’ Cheema Chowk, Ludhiana through its Branch Manager.

2. Paramount Health Services Private Limited, 81, Baroda wali Mension, Dr.Annie Besant Road,. Worli Naka, Mumbai-400 018, through its Managing Director/Secretary.

….Opposite parties.


O R D E R





After purchasing Mediclaim policy No.233905 bearing No.56/2005 from OP1-Oriental Insurance Company Limited valid from 23.02.2005 to 22.02.2006. Wife of the complainant was covered under the policy, fell ill and admitted in Smt. Shanti Seith Hospital, Abbot Road, Amritsar on 28.04.2005. She was treated for Cholelithiasis and discharged from the hospital on 05.05.2005. She spent Rs.13498/- on treatment and claim under the policy, lodged with OP, who subsequently after reminder rejected the same. This repudiation is assailed and challenged to be wrong, null, void, illegal and amounting to deficiency in service by filing this complaint under section 12 of The Consumer Protection Act, 1986 claiming the amount alongwith compensation of Rs.50000/- and litigation cost of Rs.3000/-.

2. OP pleaded in reply that the complaint is not maintainable; barred by limitation and the claim so lodged was not payable under exclusion clause of the policy, as problem of stone was not covered in the first year of the policy. Therefore, claim was rightly and legally repudiated vide letter dated 11.11.2005.

3. Both parties adduced evidence by way of affidavits and documents. We have heard the ld. counsel for the parties and gone through the entire record placed on the file.

4. Objection of OP that claim is time barred. Appears well founded as claim of the complainant was repudiated vide letter dated 11.11.2005, but from the date of repudiation complaint was not filed within two years. Rather was filed on 15.05.2009, so no reason has forthcome to explain delay in filing the complaint. Therefore, we hold and conclude complaint is time barred.

5. Now coming to the ground of repudiation of the claim. It is pleaded by OP that claim was not payable in the first year of the policy, Ex.R1 is copy of policy. Under conditions clause of policy and during the first year of operation of Insurance cover, the expenses of treatment of disease such as cataract, benign prostatic hypertrophy for menorrhagia or fibromyoma, hernia, hydrocele, congenital internal diseases, fistula in anus, piles, sinusitis and related disorders are not payable.

6. Bill for settlement under the policy was submitted to the OP during the first year of the operation of insurance cover. Therefore, under the policy claim was not payable. OP was justified in repudiating the same. Hence complaint found meritless and the same is dismissed. No order as to costs. Copy of order be supplied to the parties free of charge. File be consigned to record room.

M/s Ajay Forgings, E-769, Phase-VII, Focal Point, Ludhiana through its partner Sh. Ajay Garg s/o Sh. Amrit Pal Garg.

….Complainant.

Versus



1- M/s Oriental Insurance Company Limited, Oriental House, A-25/27, Asaf Ali Road, New Delhi through its Managing Director/Chief Manager.

2- M/s Oriental Insurance Company Limited, SCO 109-111, Surendra Building, Sector 17-D, Chandigarh through its Managing Director/Chief Manager.

3- M/s Oriental Insurance Company Limited, having its Branch Office at Loha Bazar, Mandi Gobindgarh through its Branch Manager.



….Opposite parties.

.



O R D E R




1- This order shall dispose of objection of opposite party, raised in their written statement, qua territorial jurisdiction of the Fora.

2- Complainant firm got car no.PB-10CD-3400 insured vide policy no.CHD-C 196057, valid from 24.8.2007 to 23.8.2008 from opposite party no.3 at Mandi Gobindgarh. The vehicle met with an accident and lodged claim with opposite party no.3. The vehicle was got repaired at Ludhiana, by spending Rs.1,31,139/-. But subsequently, opposite party repudiated the claim.

3- It is in these circumstances, claimed in their objection by the opposite party that this Fora has no jurisdiction, to try the complaint, as no cause of action accrued to the complainant at Ludhiana, because policy was issued at Mandi Gobindgarh, claim lodged and repudiated at that place.

4- On this preliminary objection raised by opposite party in their written statement, we have heard counsel for the parties.

5- It is undoubtedly proved that insurance of the vehicle was purchased by the complainant from Oriental Insurance Company Limited, Mandi Gobindgarh (District Fatehgarh Sahib). Accidental claim of the vehicle, was also lodged at Mandi Gobindgarh, who repudiated the claim. It is in these circumstances, to be seen whether this Fora at Ludhiana, has jurisdiction, to try or entertain the complaint or not.

6- Section-11 of the Consumer Protection Act, 1986, deals with question of jurisdiction of the Fora.

As per Section 11(2) (a), “where opposite party or each of opposite parties, at the time of institution of the complaint, actually and voluntarily resides or carries on business, or has a branch office, or personally works for gain”.

Under Sub Clause (b),“ where there are more than two opposite parties, carrying actually and voluntarily business or have a branch or personally works for gain, but provided that in such case, either permission of the District Forum, is given or the other opposite party does not acquiesce in such institution .

Under Sub Clause (c), “where cause of action wholly or in part, has arisen”.



7- In the instant case, no cause of action accrued to the complainant at Ludhiana. Neither Ludhiana branch of Oriental Insurance Company Limited, is a party to the proceedings. However, it is not disputed that Oriental Insurance Company Limited, has branch at Ludhiana. Therefore, question is whether simply for the reasons that insurance company has branch at Ludhiana, complainant can file complaint at Ludhiana.

8- Hon’ble National Commission in National Insurance Co. Ltd. Vs Sonic Surgical III (2003) CPJ-144(NC), in such circumstances, held that Forum where cause of action accrued, would have the jurisdiction, to try the complaint. In that case, fire had broken in godown in Ambala Cantt and policy was obtained at Amabala. Claim was lodged at Ambala branch and compensation was also accepted at Ambala. The claim was only dealt at some stage by Regional Office at Chandigarh. So, concluded that due to such reason, cause of action could not have arisen at Chandigarh. Therefore, concluded that they have no territorial jurisdiction over the matter.

9- Whereas, complainant referred some earlier authorities of the Hon’ble National Commission reported in Manager, Air India Vs A. Moideen Kutty, 2003 (1) Juridical Reports Consumer-17(NC). But facts of that case, being distinct, would have no application to the case in hand. In that case, confirmed air ticket was purchased by the complainant in Kerala and Air India had its head office in State of Tamil Nadu. Hon’ble Kerala State Commission, concluded that it had jurisdiction, which order was affirmed by the Hon’ble National Commission. So, Hon’ble Kerala State Commission was held, having jurisdiction, because cause of action had accrued in Kerala, where air tickets were purchased.

10- The next authority referred by the complainant, to clothe this Fora with jurisdiction, is reported in Manoj Kumar Vs National Insurance Co. Ltd. 1999 Judicial Reports Consumer-241(Punjab State Commission). In that case, Bathinda Forum was held entitled, to receive and decide complaint, for the reason that insurance company had branch at Bathinda. This ratio was given by the Hon’ble State Commission on 15th October, 1998, whereas the Hon’ble National Commission decided otherwise on 10.7.2003 in National Ins. Co. Ltd. Vs Sonic Surgical, supra.

11- It is contended that as opposite party has branch at Ludhiana, so Ludhiana Forum would be competent and in support, referred us to Pal Peugeot Limited & Anr. Vs M/s Abdul Majid & Bros. & Ors. 1999 Judicial Reports Consumer-704 (UP State Commission). But the branch at Ludhiana, is not a party in the complaint.

12- Having regard to all these aspects, we are of the view that no cause of action accrued to the complainant at Ludhiana, opposite party is carrying on business at Mandi Gobindgarh, from where policy was purchased. Branch at Ludhiana never dealt the case, nor are party to the proceedings. Therefore, it is concluded that this Fora has no jurisdiction, to entertain and decide the complaint. Therefore, such preliminary objection of the opposite party, is allowed.

13- As we have no territorial jurisdiction, to decide the complaint, so the same ordered to be returned to the complainant, for presentation in proper Fora, having jurisdiction. Copy of order be supplied to the parties free of charges.

Superintendent to return the file after making necessary endorsement.

Harish Khurana aged 46 years, son of Sh. Dhanna Ram, resident of 323/7-A, Sujan Singh Street, Benjamin Road, Ludhiana.



…..Complainant.

Versus



1- Oriental Insurance Company Limited, White House Commercial Complex, near General Bus Stand, Ludhiana, through its Divisional Manager.

2- Oriental Insurance Company Limited, Surindera Building, SCO 109-11, Sector 17-D, Chandigarh, through its Zonal Manager.

3- Oriental Insurance Company Limited, C.P.O. 146, Industrial Area-Am above Allahabad Bank, Cheema Chowk, Ludhiana through its Branch Manager.

…..Opposite parties.




O R D E R




1- Complainant for the first time purchased for self and family, including daughter Mehak, health insurance policy, effective from 22.4.2005 to 21.4.2006, vide cover note no.752247 for Rs.50,000/- each. The same policy was renewed from 11.5.2006 to 10.5.2007 vide cover note no.753250 for Rs.50,000/- each. The policy was again renewed for the whole family, for the period 11.5.2007 to 10.5.2008 vide policy no.233400/48/2008/050 for Rs.50,000/- each. During continuance of the policies, no claim qua daughter Mehak Khurana, was lodged. But his minor daughter Mehak Khurana fell ill and consequently, was admitted in CMC & Hospital, Ludhiana, where remained admitted from 1.10.2007 to 6.10.2007. She was diagnosed of Myoneuronal Junction Disorder and Miled Anaemia. Again, was admitted in the same hospital on 19.11.2007 and discharged on 26.11.2007. Rs.50,000/- were spent on treatment.


Claim qua such treatment was lodged with opposite alongwith proper proof. But opposite party, illegally, arbitrarily and illegally, repudiated the claim on assertion that claim pertained to pre-existing disease, which falls under exclusion clause 4.1 of the policy. The ground taken for repudiation is illegal and wrong. Because Mehak was never admitted in CMC & Hospital, for the above disease. Rather, from 7.11.2005 to 20.11.2005, she was admitted with the problem of Chicken Pox. The earlier problem of Chicken Pox had no link with disease of Myasthenia Gravis. Therefore, opposite party liable to honour the policy and pay the claim alongwith compensation of Rs.25000/- for causing harassment.

2- Opposite party contested the claim, by disputing obtaining of insurance policies for family by the complainant, as alleged. Claimed that first policy was purchased effective from 11.5.2006 to 10.5.2007 by the complainant. Admitted that he had lodged claim for treatment of his daughter Mehak Khurana, which was repudiated. They claimed that repudiation is just and valid, as Mehak Khurana for such disease, had got treatment in 2004 in CMC, Ludhiana. While purchasing policy for the first time, she suppressed her previous ailment and hospitalization. This such aspect became apparent, when opposite party engaged Dr. B.C. Singla, as investigator, who vide report dated 8.12.2007, reported getting treatment for the same disease by Mehak Khurana in CMC, Ludhiana, in 2004 and subsequently. On the basis of such report, claim was rightly and legally rejected. Thus, there is no deficiency in service on their part.

3- To support their respective contentions, both parties led evidence by way of affidavit and documents and stood heard through their counsels.

4- Ex.R1 is the repudiation letter issued by opposite party to the complainant, filing his claim as “no claim”, on the ground that case was covered under exclusion clause 4.1 of the insurance policy (Ex.R3). It was conveyed that “Mehak Khurana was suffering from Myosthenia Gravis with Global Profound Muscles movement and Seizure Disorder for which, took treatment in CMC from 21.3.2004 to 24.3.2004 and 7.11.2005 to 20.11.2005. The policy for the first time commenced from 11.5.2006. Hence, case was of pre-existing disease, which the insured had suppressed while purchasing the same”.

5- However, despite denial by opposite party, complainant is able, by tendering cover note Ex.C1, to show that insurance policy commenced for the first time on 22.4.2005, valid upto 21.4.2006. This policy was renewed by him from 11.5.2006 to 11.5.2007 vide cover note Ex.C2. So, it means policy, for the first time, was purchased by the complainant for self and family w.e.f. 22.4.2005 and not 11.5.2006, as is defence of opposite party.

6- Repudiation of claim by opposite party, is based upon report Ex.R2 of Dr. B.C. Singla of Singla Clinic & Clinical Lab., engaged by opposite party, as investigator. He reported in this report that visited CMC & Hospital, Ludhiana, to study record of the patient Mehak Khurana, where she had taken treatment from 1.10.2007 to 6.10.2007, due to Seizure Disorder, Myasthenia Gravis, Global Profound Muscles movements. He reported in report Ex.R2 that Mehak Khurana is the known case Seizure Disorder for the last 6 months. Earlier on 21.3.2004 to 24.3.2004, had taken treatment for the same disease. Had also taken treatment from K.G. Hospital, Panipat in February, 2004. Again, was admitted in the hospital on 7.11.2005 till 20.11.2005 for the same Seizure Disorder, with problem of brain fever. Again, was admitted in CMC & Hospital, Ludhiana, on 1.10.2007 due to gradual increase, Global Muscular weakness of whole body. She was discharged from the hospital on 6.10.2007. He then opined that the patient had this disease since 2004, which progressively is increasing.

7- Aforesaid report leaves no doubt in mind that treatment which insured Mehak Khurana obtained in October, 2007 from CMC & Hospital, Ludhiana, for the disease, she was already suffering with the same disease in the year 2004 and was hospitalized for treatment from 21.3.2004 to 24.3.2004. But contended on behalf of complainant that this report of the investigator alone, would not be sufficient, without medical record of the hospital. No doubt, record of the hospital in support of survey report Ex.R2, has not been produced. But surveyor Dr. B.C. Singla in his affidavit Ex.RW2/A, has supported his averments, contained in report Ex.R2. He says that he had gone to inspect record of CMC & Hospital, Ludhiana, and after investigation, found that Mehak Khurana was a known case of Seizures Disorder, for which purpose, had taken admission in the hospital from 21.3.2004 to 24.3.2004.


Non production of the record of CMC Hospital, in support of report Ex.R2, in our view, is not going to make any difference. Because the complainant in Para no.2 of the complaint, has admitted taking earlier treatment in CMC. But claimed that it was not for the disease of Myasthenia Gravis with Global Profound Muscle movement, but was for Chicken Pox. It was consequently for the complainant, to prove that earlier treatment taken was for Chicken Pox and not for Myasthenia Gravis with Global Profound Muscle movement, as reported by Dr. B.C. Singla, in his report Ex.R2. We have no reason to disbelieve that report of Dr. Singla.


Therefore, it is established that Mehak Khurana daughter of complainant in 2004, had obtained treatment for the disease Myasthenia Gravis with Global Profound Muscle movement. But while purchasing policy for the first time on 22.4.2005, withheld such information from the opposite party. By suppressing information, certainly complainant would be guilty of committing breach of faith with the insurance company. Therefore, under exclusion clause 4.1 of the policy (Ex.R3), opposite party was justified in repudiating the claim, as he suppressed pre-existing disease, when policy commenced for the first time.

8- In these circumstances, we find that opposite party was not deficient in rendering services to the complainant. Therefore, finding no merits in the complaint, the same is dismissed, leaving the parties to bear own costs. Copy of order be supplied to the parties free of costs. File be consigned to record room.

Sri.K. Amarnath Singh, S/o V.B. Chandra Bhan Singh, aged 30 years, Owner of Swaraj Mazda, R/o D.No.38-13-10/1, Andhra Keswari Nagar, Marripalem, Visakhapatnam

… Complainant



And:

1. The Branch Manager and Authorized Signatory, The Oriental Insurance Company Limited, Divisional Office II, 4th Floor, Pavan Towers, Dwarakanagar, Visakhapatnam – 16.

2. The Branch Manager, Shrachi Infrastructure Finance Ltd., D.No.47-7-24, 2nd Floor, Seshu Apartments, Besid Gruha Priya Pindivantalu, Dwarakanagar, Visakhapatnam – 16.

… Opposite Parties




: O R D E R :



1. The factual matrix of the dispute between the vehicle owner and its insurer 1st opposite party is: The complainant purchased Swaraj Mazda Vehicle bearing No. AP 31 X 1280, having transport permit through out Andhra Pradesh, Madyapradesh, Maharastra and Orissa, with the finance provided by 2nd opposite party.

2. The 2nd opposite party which has got tie up with 1st opposite party obtained insurance for the vehicle from 1st opposite party bearing policy No.2007-8793 valid from 05-11-2006 to 04-11-2007 for an amount of Rs.4,00,000/- under Ex.A.3. While so, on 06-05-2007, at around 11.30pm the vehicle met with accident opposite to Mushroom Factory, Near Raghu College, Bheemili Police Station Limites. In that accident, the vehicle sustained the following damages, cabin was completely damaged, engine, gear box, radiator and its accessories are damaged and so also electrical cables and the body was completely damaged. On a report by the complainant, the 1st opposite party deputed its Surveyor, Purnachandra Rao, who made spot inspection and noted the damages.


The authorized dealer Kesar Motors estimated the damages to the vehicle by its estimate Ex.A.6 dated 18-05-2007 of Rs.6,95,176/-. It is claimed that another surveyor, deputed by the 1st opposite party, also inspected the vehicle on 20-07-2009 and prepared 2nd surveyor report. Though a claim was made by the complainant, it was not settled. Further, another surveyor by name Ramana deputed by Insurance Company also inspected the vehicle.


This deputation of Surveyor Mr. Ramana by 1st opposite party was subsequent to the filing of the complaint on 07-01-2008, preceded by notice Ex.A.9 and Ex.A.10 and also legal notice Ex.A.11 dated 08-10-2007. The complainant claimed Rs.4,00,000/- the policy amount towards the damages caused to the vehicle and another Rs.2,00,000/- as compensation for its failure to process the claim and rendering him liable to sustain loss of Rs.24,000/- per month by way of salary to the staff without running the vehicle.

3. The opposite party pleaded that the complaint is premature and took up a stand that earlier reports of the surveyors deputed by it are only preliminary reports and only final report of surveyor Ramana to be submitted, the claim cannot be settled. It also pleaded that the vehicle Number is not tallying with the number mentioned in the policy. Evidently, it relied upon surveyor Ramana’s letter unless the vehicle is stripped off the estimate of damages cannot be properly done in order to settle the claim.

4. At the time of enquiry both parties filed affidavits in support of their respective contentions for the complainant. Ex.A.1 to Ex.A.17 are marked, which include correspondence with opposite parties as well as Insurance Policy. For opposite party Ex.B.1 & Ex.B.2 marked.

5. It is the contention of the counsel for the complainant that only after spot inspection by the surveyor, the vehicle was moved to authorized showroom and got the damages estimated thereon and the opposite party is not justified, at a later stage to demand stripping off of the vehicle for the so called observation of the damages caused to the vehicle. The learned counsel vehemently urged that unless a specific order given by the surveyor to strip off the vehicle, it cannot be done by the garage people and without doing it the opposite party is not justified in not settling the claim and this conduct amounted to deficiency in service and the complainant is entitled for the amounts claimed.

6. On the other hand it is the contention of the counsel for the opposite party Insurance Company there is discrepancy with regard to the vehicle number in the Insurance Policy and apart from that unless the vehicle, which is kept on the road instead of in the garage is stripped off to make total inspection of the parts to assess the damage by the surveyor and basing on the final report of the surveyor only, the claim can be settled and it is the duty of the complainant to take proper steps and to co-operate with the surveyor in this regard. He urged that the complaint is premature one and the claim was never repudiated and hence there is no cause of action by the complainant to file the complaint.

7. In view of the respective contentions the point that would arise for determination is :

Whether there is any deficiency in service on the part of the 1st opposite party in not settling the claim of the complainant and the complainant is entitled for the amounts claimed?

8. The fact that vehicle of the complainant was insured with 1st opposite party by the financier 2nd opposite party is not in dispute. Though there is discrepancy in noting vehicle as AP31 X 1180 in the policy instead of AP 31 X 1280. It is evidently mistake in noting down the vehicle number in the policy Ex.A.3 issued by the Calcutta Office of 1st opposite party. Similarly there is no dispute that the vehicle met with an accident and the same was intimated. For a specific assertion by the complainant that two surveyors Purnachandra Rao of Visakhapatnam and another Tirupathi Rao, from Hyderabad inspected the vehicles and submitted their survey reports were not denied by the opposite party. The fact remains that those reports did not see the light of the day till today.


Infact in Ex.B.2 letter dated 04-11-2007, the opposite party categorically admitted that Purnachandra Rao, Surveyor was deputed but took up a stand it was not final survey report and they are awaiting report from Sri. Ramana, said to be a final Surveyor. The 3rd surveyor Sri Ramana evidently refused to give his estimation of damage on the ground that the vehicle was not with the Authorized garage and it was not stripped off part by part in order to enable him to assess the loss, as can be seen from Ex.B.1 dated 20-03-2008, equivalent to Ex.A.15.

9. The accident occurred on 06-05-2007, spot survey was done by authorized surveyor and only after their inspection, the vehicle was moved to the authorized dealer for assessment of the loss which gave its estimate on 13-05-2007. It is not explained why the earlier reports of the surveyor, who made inspection on the spot were not filed. It is not explained as to why Mr. Ramana, final surveyor, who evidently was appointed even prior to 14-11-2007 did not inspect the vehicle till March 2008. Even then also he is not prepared to assess the loss. Secondly he did not mention in Ex.A.3 letter as on what date he made inspection of the vehicle.


The complainant pleads that the dealer refused to keep the vehicle in his premises for long time and so he was forced to take out the vehicle to a private garage and in our view the inspection floated by him is probable and possible.

10. It is to be noted here itself in the complaint after receipt of summons from this Forum the 1st opposite party failed to entered appearance on 15-02-2008. Only on 22-02-2008, it got the exparte order set aside and later filed the counter. The letter issued by the surveyor Sri.Ramana was dated 20-03-2008.


Thus it is quite evident that after receiving notice from this Forum and while contesting the complaint, the 1st opposite party got issued this Ex.B.1 letter finding fault with the complainant for removing the vehicle from the showroom premises and took up a lame cause for not assessing the damage, namely that vehicle should be stripped out. As can be seen from Ex.A.10 letter by the complainant dated 27-08-2007, which was not disputed, the surveyor Sri.Ramana inspected the vehicle on 20-07-2007. So only after complaint was filed the surveyor Sri.Ramana, choose to issue Ex.B.1 letter dated 20-03-2008, offering lame excuses for not giving report.


If the Insurance Company is not satisfied with the earlier reports given by its own surveyor, who made the spot inspection it should have promptly taken steps to get the damages assessed and settle the claim, and in our view the 1st opposite party miserably failed in this regard. Having waited for more than 7 months, the complainant approached this Forum for redressal of his grievance. In these circumstances it cannot be termed as premature claim and failure of the opposite party settle the claim, in our view definitely amounts to deficiency in service.

11. Basing on the estimate made by the authorized showroom in Ex.A.6 dated 18-05-2007, which was put at Rs.6,95,176/-, in the absence of any other material by the opposite parties to show that this estimate given by the authorized dealer is exaggerated or on high side, in our view it has to be accepted. Hence the 1st opposite party is liable to pay Rs.4,00,000/- to the complainant being the policy amount treating it as of total damages. The opposite party would naturally be liable to pay interest @ 9% p.a., on this amount atleast from the date of issue of legal notice dated 08-10-2007 i.e., Ex.A.11.

12. With regard to compensation claimed of Rs.2,00,000/- there cannot be any doubt that the complainant who purchased the vehicle under finance from the 2nd opposite party is liable to discharge that debt and he is also deprived of the income, he would have got from the vehicle due to the damage in the accident and failure of settlement of claim. In our view assessing the compensation for the loss sustained by the complainant at Rs.50,000/- would be just and proper in the circumstances of the case. Accordingly this point is answered in favour of the complainant finding that 1st opposite party has to pay the policy-amount of Rs.4,00,000/- with interest @ 9%p.a., from 08-10-2007 the date of legal notice till payment and another amount of Rs.50,000/- as compensation.

13. In the result, complaint is allowed, directing the 1st opposite party to pay the policy amount of Rs.4,00,000/- (Rs. four lakhs only) with interest @ 9% p.a. from 08-10-2007 till payment and to pay another amount Rs.50,000/- towards compensation. 1st Opposite party is further directed to pay Rs.5,000/- towards costs. Advocate fee Rs.2,000/-. The complaint against the 2nd opposite party is dismissed.

COMPLAINANT:

Sri. H.S. Sheshadri,

S/o. Late Srikanta Jois,

Aged about 63 years,

R/o. Nrisimha, 1st Cross –

Tilak Road, Koppa Town,

CHIKMAGALUR DISTRICT.

Represented by the Power of –

Attorney Holder his son,

S. Girish, S/o. H.S. Sheshadri,

R/o. Nrisimha,

1st Cross Tilak Road,

Koppa Town,

CHIKMAGALUR DISTRICT.





V/s

OPPONENT:

The Oriental Insurance Co. Ltd.,

Lakshmi Shopping Complex,

Subash Road,

Koppa Town,

CHIKMAGALUR DISTRICT.


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



1. The complainant has filed this complaint u/s 12 of the Consumer Protection Act against the opponent for the deficiency of service in repudiating the mediclaim of the complainant and prays for compensation of Rs.10,000/- as damages and settlement of the mediclaim along with court costs as detailed in the complaint.

2. The facts of the case in brief are as follows:-

He has availed a mediclaim policy from the opponent since 2004, which was renewed till this day without any break and the policy is now in force, which is valid from 19.07.2008 to 18.07.2009. Such being the case, the complainant was admitted to Kasturba Hospital on 18.06.2008 for the treatment of neurogenic claudication and he underwent a surgery for the above said complication on 28.06.2008, subsequently discharged on 21.07.2008. During that period, the complainant has spent Rs.43,174/- towards the medical expenses.


Being the insured to the opponent, he claimed for reimbursement of the said expenses on 23.07.2008. But the opponent issued a repudiation letter stating that the complainant has suppressed the material facts of the diseases and he has neurogenic claudication since 2003. But the complainant was not suffering from the said diseases earlier to the commencement of the policy. He was only suffering from the said diseases since two years and there is no break in renewal of the policy. Therefore, they have repudiated the claim without any valid reason. Thus, the opponent is at deficiency of service. Hence, prays for the reimbursement of the medical expenses along with the compensation as prayed above.

3. After service of the notice, the opponent has appeared through their counsel and filed version and contended that they have issued Individual Mediclaim Policy for the period of 19.07.2008 to 18.07.2009 and the liability, if any, is governed by the terms and conditions of the policy. M/s. Medi-Assist India Pvt. Ltd., Bangalore is the authorized agent for the settlement of the claim of the policy. The first policy was issued on 06.07.2004 and it was renewed after a lapse of 14 days. The complainant was admitted to Kasturba Hospital, Manipal on 18.06.2008 for treatment of Lumbar Canal Stenosis with Intra-vertibral disc prolapse (IVDP) L4-5 and discharged on 21.07.2008. The authorized agent has received a request from the Hospital for cashless facility on 19.06.2008. On the same day, the authorized agent sought additional information from the Kasturba Medical Hospital, wherein it was stated that the complainant is having low back-ache with neurogenic claudication since December 2003. As such, the cashless facility was denied.


Thereafter, he submitted hospitalization papers for reimbursement of the medical expenses and the same was repudiated on the ground that the complainant had pre-existing illness for which he has taken treatment and the document produced by the complainant itself discloses that the complainant is having low back ache with neurogenic claudication since December 2003.

4. The opponent has further contended that Lumbar Canal Stenosis is the narrowing of spinal canal or the tunnels through which nerves and other structures communicate with that canal. The narrowing of spinal canal or the side canals that protect the nerves often results in a pinching of nerve route of the spinal card. The nerves become increasing irritated as the diameter of the canal becomes narrower. Neurogenic Claudication (NC) is a common presentation or one symptom of, spinal stenosis, or inflammation of the nerves eminating from the spinal card. Neurogenic means that the problem is originates with a problem at a nerve and claudication, from latin for limp, means that the patient feel a painful cramping and / or weakness.

5. Since it is a pre-existing illness prior to issue of first policy and the complainant has knowledge that the symptoms, relating to the sickness, had suppressed the facts. Considering these facts, the claim has been repudiated through letter dtd.21.08.2008. Thus, there is no deficiency of service on the part of them and the complainant is not entitled to get any reimbursement of the medical expenses spent. Hence, prays for the dismissal of the complaint.

6. The G.P.A. Holder of the complainant has filed his affidavit evidence as PW.1 along with the documents and the same have been marked as Exs.P1 to P3.

7. One Sri H.N. Mahesh, Advocate was appointed as a Court Commissioner to record the evidence of Dr. Sham Bhat, Asst. Professor of Orthopedic, K.M.C. Hospital, Manipal and the entire case sheet is marked as CW.1.

8. One Sri V.T. Damodhar, Branch Manager of the opponent company has also filed his affidavit evidence as RW.1 along with documents and the same have been marked as Exs.R1 to R9.

9. We heard the arguments advanced by both the parties’ counsels.

10. 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?

11. 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: The case of the complainant is that he was admitted to Kasturba Medical Hospital on 18.06.2008 and discharged on 21.07.2008, wherein he underwent a surgery for neurogenic claudication during that period for which he spent Rs.43,174/- and claimed for reimbursement of the said amount. But the opponent has repudiated his claim without any reason. Hence, he alleges for the deficiency of service and prays for reimbursement of the said amount.

12. On the contrary, the opponent has taken a contention that the complainant had pre-existing diseases earlier to taking first policy and he has suppressed the said facts at the time of taking the policy. Therefore, he is not entitled to get any reimbursement as prayed.

13. On perusal of the Ex.R2 one Dr. S.P. Mohanty, who is a Professor and Head of Department of Orthopedics at Kasturba Hospital, Manipal has stated that the complainant had intervertebral disc prolapse L4-15 with lateral canal stenosis, which was traced out by Magnestic Resonence Imaging, which was done on 19.06.2008. He further gives an opinion that on going through the out-patient records, the complainant having a symptom of low back ache with neurogenic claudication since December 2003, which clearly goes to establish that the complainant had a symptom of low back ache with neurogenic claudication since December 2003. But we are of the opinion that merely symptom of the said diseases cannot be considered as an ailment and it is clearly mentioned in the Ex.R2 that the said disease was traced out only after conducting M.R.I. Test to the complainant, which was done on 19.06.2008 since that M.R.I. Test the complainant had no knowledge about the said disease.


Such being the case, we cannot believe that the complainant has suppressed the material facts and even we cannot say that he had a pre-existing disease prior to taking the policy. Admittedly, the policy is in force on the date of admission to the Kasturba Hospital, Manipal for surgery and repudiation made on the ground of pre-existing disease cannot be justified. In this regard, we quote the following decision reported for reference.



No.11 (2008) C.P.J. 146 Hon’ble National Commission

The policy which state that it is immaterial whether the insured had knowledge of the disease or not, and even existence of symptoms of the disease prior to effective date of insurance enables the insurance company to disown the liability. If this inter-pretation is upheld the insurance company is not liable to pay any claim whatsoever because every person suffers from symptoms or disease without the knowledge of the same. This policy is not a policy at all as it is just a contract entered only for impose of accepting the premium without the bonafide intention of giving any benefits to the insured under the grab of preexisting disease. Most of the people are totally unaware of the symptom of the deceased they suffer from and hence they cannot be made liable to suffer because the insurance company relies on the (exclusionary clause) in a malafide manner to repudiate all claims. No claim is payable under the medi-claim policy as every human being is born to die and diseases are perhaps preexisting in the system totally unknown to him of which, is genuinely unaware.



Following the principles laid down in the above said decision, here also has disclosed by the doctor that the complainant had a symptom of low back ache with neurogenic claudication since December 2003 and we consider that the complainant had no knowledge about the said disease at the time of taking the policy. As such, he is entitled to get the reimbursement of the medical expenses spent. Without considering the material facts, the opponent has repudiated the claim of the complainant, which cannot be justified. Hence, it is just and proper to award Rs.3,000/- for the deficiency of service. Further the complainant is also entitled to get Rs.1,000/- as court costs towards the litigation expenses. For the above said reasons, we answer the above point Nos.1 and 2 in the affirmative.

12. 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 opponent is hereby directed to settle the mediclaim of the complainant by paying a sum of Rs.43,174/-, which was spent by the complainant towards his medical treatment.

3. The opponent is hereby further directed to pay a compensation of Rs.3,000/- towards the deficiency of service in repudiating the rightful claim of the complainant along with costs of Rs.1,000/- towards the litigation expenses to the complainant.

4. The opponent shall comply the order 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.

5. Send the copies of this order to the parties.

Joginder Singh son of Sh. Roshan Lal, resident of VPO Dodhamb Tehsil Shahpur District Kangra (HP)

Complainant

Versus

1. The Oriental Insurance Company Ltd., through its Branch Manager, Branch Office Pines Hotel Palampur, Tehsil Palampur, District Kangra (HP)

2. Himachal Gramin Bank, through its Branch Manager, Branch Office Charri, Tehsil Shahpur District Kangra (HP)









ORDER/



The brief facts of the complaint, as alleged, are that the complainant Sh. Joginder Singh, being an agriculturist, had raised some loan form the opposite party No.2, on 6.10.2006, and had purchased two mules. Both the purchased mules were insured with the opposite party No.1, through the opposite party No.2, for a total sum of Rs.25000/-, vide Insurance Cover Note No.47/07/505 dated 6.10.2006. It is alleged that one of the insured mules, had died on 19.12.2006, due to illness, and the post mortem of this dead mule was got conducted on 20.12.2006. It is alleged by the complainant that he had also informed the opposite party No.1, through opposite party No.2, about the death of this mule, and had submitted all the documents, for the settlement of his claim with the opposite party No.1, through opposite party No.2.


However, the opposite party No.1, vide their letter dated 6.6.2007, had repudiated his claim on the flimsy ground that the mule bearing Ear Tag No.34150 is alive, but the mule bearing ear tag No.34103 has died. The complainant has contended that since the alleged ear tag had already been lost, so he had never handed over it to the opposite party No.1, but they( opposite party No.1) without application of their mind, had repudiated his claim, and it has caused mental, physical and financial harassment to him to the tune of Rs.5,000/-.


The complainant has further contended that the repudiation of the death claim of his insured mule had not only caused mental agony to him, but had also caused loss of his earning to the tune of Rs.30000/-, i.e. Rs.200/- per day, as he had purchased these two mules, after raising the bank loan, for earning livelihood for him, and his family. Hence, the complainant has claimed that the opposite party No.1 be directed to settle the death claim of his mule, and to pay the insured amount alongwith interest from the date of the death of the mule, till it’s final payment. He has also claimed compensation to the tune of Rs.35,000/- ( the loss of his earnings). He has also sought the relief, seeking the directions for the opposite party No.2 to waive off, the interest on the loan amount, from the date of the death of the mule, till the realization of the death claim of the mule in question.

2. The opposite party No. 1 has contested this complaint by filing their reply on 24.5.08, in which they have contended that there was no deficiency in service on their part. The claim of the complainant was duly processed, scrutinized, and got investigated from an independent Investigator. Since, the same was not found in accordance with the terms and conditions of the Insurance Policy, so the claim was rightly repudiated by them, and the complainant was duly informed about it, vide their letter dated 28.2.2007. They have contended that on the basis of the veterinary health certificate, which was signed by the complainant, they had insured two mules vide cover note No.365838. Both the mules were tagged with ear tag Nos.34150, and 34103 respectively. They have contended that they had received an information from the opposite party No.2 on 26.12.2006 to the effect that the cattle insured vide Policy Cover Note No.365838 had died on 19.12.2006. So, they had demanded the papers from the complainant through the opposite party No.2, for the settlement his claim, and after receiving the requisite papers, they had got investigated the claim, from an independent Investigator.


It was revealed from the report of the Investigator that one insured mule bearing ear tag No.34150 is alive, but the other mule was not bearing any ear tag, at the time of it’s death. They had received the post mortem report, and the certificate issued by the Pardhan, but no ear tag was supplied by the complainant to them. So, after considering all the facts, the claim of the complainant was rejected, as “No Claim”, and the complainant was duly informed, but thereafter, they had received one letter dated 15.3.2007 from the opposite party No.2, with the representation of the complainant, from which, it was revealed that the complainant after rejection of his claim, had concocted a false story that while cleaning the cow shed, he had found the token.


The complainant alongwith his representation, had sent an ear tag bearing No.34150, with a request to settle his claim. They have also contended that as per the report of the Investigator, the mule bearing ear tag No.34150, is alive. They have contended that the complainant has not approached this Forum with clean hands, and has suppressed the true material facts. The complaint is not maintainable, and it deserves dismissal with costs.

3. The opposite party No.2 was duly served, but he did not appear before this Forum on 17.12.2007, so he was proceeded against exparte on 17.12.2007 by this Forum.

4. We have considered the arguments of Sh. Pawan Chaudhary, Advocate, learned counsel for the complainant, and Sh. Sanjay A. Gopal, Advocate, learned counsel for the opposite party No.1, and have also carefully gone through the case file, evidence and facts on the record.

5. Ex.CW-1 is the affidavit of Sh. Joginder Singh, in which he has corroborated the facts and version of the complaint, on oath. Annexure C-2, is the copy of the letter dated 28.2.2007, vide which, the opposite party No.1 had repudiated the claim of the complainant. Annexure C-1, is the copy of the letter dated 6.6.2007, written by the opposite party No.1, to the opposite party No.2, in which they had mentioned that the complainant had sent an ear tag No.34150, but as per the report of the Investigator, the mule bearing ear tag No.34150 is alive, whereas the mule bearing ear tag No.34103 had died, and the ear tag of this dead mule, had already been lost.

6. On the other hand, Ex.OPW-2 is the affidavit of Sh. S.K.Walia, Development Officer, on behalf of the opposite party No.1, in which he has deposed that he had insured both the mules of the complainant, and had affixed the ear tag Nos.34103 and 34150 on the ears of both the insured mules. Ex.OPW-1, is the affidavit of Sh.S.S.Pathania, Branch Manager of Oriental Insurance Company. Ex. OPW-3 is the affidavit of Sh. Munish Kumar Rana, Investigator. Annexure OP-2 is the photo copy of the Veterinary Health Certificate, and annexure OP-6 is the report dated 10.1.2007, given by the Surveyor-cum-Loss Assessor Sh. Munish Kumar Rana, and annexure OP-7 is the photo copy of the Post Mortem Report, and annexure OP-9 is the photo copy of the Insurance Policy. Annexure OP-8 is the photo copy of the death certificate dated 19.12.2006 of one female mule belonging to the complainant Sh. Joginder Singh.


7. From the perusal of Annexure OP-2, i.e. Veterinary Health Certificate, vide which, the mule of almond brown colour with white hair, bearing ear tag No.34103, and the other mule white in colour with slight brownish hair bearing ear tag No.34150, belonging to the complainant was medically examined by Dr. Sanjay Sharma, Veterinary Officer. From the perusal of the copy of post mortem report (Annexure OP-7), it is revealed out that one mule of brown colour had died on the evening of 19.12.2006 belonging to Sh. Joginder Singh, but the ear tag was not found. From the perusal of the investigation report dated 10.1.2007,(Annexure OP-6), issued by the Surveyor-cum-Loss Assessor Sh. Munish Kumar Rana, it is revealed out that the mule of Sh. Joginder Singh had died, but it was not bearing any ear tag, at the time of the death, as the ear tag was stated to have been lost, but the other mule of white colour, which was also insured, and was bearing ear tag No.34150, is still alive.


The story as propounded by the opposite party No.1 that the complainant had deposited the ear tag No.34150 with them on saying that while cleaning the cow shed, he(complainant) had found the ear tag, and had submitted it with the opposite party No.2, can be true, because the possibility cannot be ruled out that the ear tag bearing No.34150 of the other insured alive mule of the complainant, might have also separated in the cow shed, and when it was found by the complainant in the cow-shed, it was picked by him, and was deposited with the opposite party No.1. The fact is to be kept in mind that the complainant is a rustic villager. The fact is that the original ear tag bearing no.34103 of the insured mule was lost, and it is also a fact that no tag was found in the ear of the mule, at the time of it’s death/post mortem. As per the comparison/clarification from the Veterinary Health Certificate, and Post mortem report, the identification of the insured mule, and of the alleged deceased animal is established on the file.


The alleged fact that the ear tag No.34150 was supplied by the complainant to the opposite party No.1 may be correct. There is always a possibility of separating the ear tags from the insured cattle due to number of factors. The complainant has not concealed the fact that the ear tag No.34103 was not there at the time of the death of the insured mule. Atleast, it is not said that the complainant had any third mule. It is also not said that the two mules were there at the cow shed/house of the complainant, at the time of the survey. Since, the identification of the insured and deceased mule of brown colour has been established on this file, so, the absence of ear tag is immaterial. The insurance and death of the mule is admitted. There is no doubt about the identification of the dead mule. The Surveyor and Veterinary Doctor had identified the dead mule (belonging to complainant) of brown colour. So, therefore, we are of the firm opinion that the repudiation of the claim of the insured mule of the complainant by the opposite party No.1, was not justified.

8. So, we hold that the complainant is entitled to get Rs.12500/-(the value of the insured cow), alongwith interest @ 9% per annum, from the date of complaint, till it’s final payment. We also feel satisfied that due to deficiency in service on the part of the opposite party No.1, the complainant had also suffered mental agony and harassment. So, we assess Rs.2000/-, as compensation, for his mental agony, and harassment. We also assess Rs.1000/-, as litigation costs.

8. No other point has been argued or urged before us.

9. In view of the discussion made hereinabove, the complaint is partly allowed against the opposite party No.1, but it stands dismissed against the opposite party No.2. We order to the opposite party No.1, to pay Rs.12500/- (the value of the insured cow), to the complainant alongwith interest @ 9% per annum, from the date of complaint, till it’s realization. We also direct to the opposite party No.1 to pay the compensation to the complainant to the tune of Rs.2000/-, for his mental agony, and harassment, and litigation costs to the tune of Rs.1000/-, which will be paid by the opposite party No.1, within 30 days, after the receipt of copy of this order. The copy of this order be sent to the parties, free of costs, by post, and the file after it’s due completion be consigned to the record-room.