1. M/S HP Autocade Shimla

Bye Pass NH-22

Below Brockhurst, Shimla (HP)

Through its Proprietor Shri Amit Nand.



2. Shri Amit Nand

Proprietor,

M/S HP Autocade Shimla

Bye Pass NH-22

Below Brockhurst, Shimla (HP).





… Complainants.

Versus





M/S Oriental Insurance Company Ltd.,

Mythe Estate, Kaithu, Shimla-171003,

Through its Divisional Manager.





…Opposite Party





O R D E R:




This complaint has been filed by the complainant, by invoking the provisions of Consumer Protection Act, 1986. The complainant avers that he is proprietor of M/S Autocade Shimla and is insured with the OP-Company for cash in transit from his petrol pump Shimla Bye-pass NH-22 to his residence at Phagli and then to the Bank, i.e. State Bank of India, New Shimla vice versa. It is averred that on 24.11.2004, the salesman was carrying cash to the tune of Rs.3,35,685/- and when he opened the bag, he found that one packet of Rs.500/-, i.e. Rs.50,00/- in all was missing. He promptly reported the matter to the police, as also the OP-Compamy and thereafter lodged the insurance claim with the OP-Company. It is further averred that the OP-Company instead of settling the claim, repudiated the same. 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, and non-submission of copy of FIR. On merits, it is contended that the complainant had taken the matter in a casual manner and did not take alternative remedy for lodging the FIR and further investigation of the incidence. As such, the action of the OP-Company, in repudiating the claim, of the complainant, was valid and justified. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

5. The complainant had purchased an insurance policy from the OP-Company covering the risk of theft of cash, in, transit carried by the complainant or his authorized agent from his petrol pump, Shimla Bye-pass NH 22 to his residence and then to his banker, i.e. State Bank of India, New Shimla. On the risk as covered by the insurance policy as purchased by the complainant from the OP-Company, having occurred, the, official of the complainant who was carrying the cash in his bag, on, the opening of the same, having discovered that there was a short fall in the amount, as, had been kept by him inside the bag, when he had departed from the petrol pump, inasmuch, as, one bag containing currency notes of Rs.500/- was missing. The official having noticed the shortfall, to the above extent in the currency kept by him in the bag at the time he departed from the petrol station, for its onward transmission, to, complainant at his residence, had, immediately reported the matter, to, the Police under Annexure A/2.

6. The OP-Company repudiated the claim of the complainant on the ground, that, since the complainant had not furnished to them the attested copy of the FIR, nor the untraced report, hence, with the insurance policy necessitating the production by the complainant of the copy of the FIR, in proof of the theft having occurred, its, non-submission, has, been hence contended, to be, justifying, its, stand of repudiating the claim of the complainant.

7. The fact of Annexure A/2, is, not disputed. Besides, even after the intimation, as, was contained in Annexure A/3, the complainant under Annexure A/5, had, beseeched the Station House Officer of the concerned Police Station, to, lodge an FIR in the matter. However, to no avail. With the non-denial by the OP-Company of the fact that the official of the complainant was carrying cash in his bag, had, not, promptly reported the incident, to, the Officer Incharge of the concerned Police Station, as, such, with his having promptly reported the matter to the Police, the same portrays, his, bonafide and as a consequence thereof, it, would be inappropriate, to, countenance the contention of the OP-Company that the said official may have misappropriated the sum carried by him in his bag, qua which fact, also, there exists, no, material on record.


Hence, renders unsubstantiated the contention of the OP-Company that the official of the complainant as a matter of fact had embezzled the amount carried by him in his bag and to camouflage the said act he had reported the incident to the police, as also, the same being, in conflict with the conduct of the official, of, the complainant demonstrated by his reporting the incident promptly to the Police.

8. Moreover, with Annexure-A/2 having come to be recorded, by, the concerned official of the concerned Police Station within whose jurisdiction occurrence of the theft took place, on, intimation provided by the employee of the complainant, its, existence on the file demonstrates the, fact, that, hence, the requisite intimation/information was provided by the official of the complainant, to, the official of the concerned police Station qua the incident of theft as had taken place and qua which incident, as had, occurred, in, the manner during the course of the cash being carried, by, the official of the complainant from the petrol pump owned by the complainant, to, his residential premises, the, OP-Company was obliged to indemnify the complainant.


The fact of intimation having been provided by the salesman of the complainant, is, in our considered view amplificatory of abundant and satisfactory overt steps taken by the salesman of the complainant, to, apprise the official of the concerned Police Station to take action in the matter, on, receipt, of, which information as provided by the salesman of the complainant, the concerned official of the concerned Police Station was obliged under law to enter the information initially recorded, in, the daily diary register, in, the register maintained for the recording of First Information Reports and then proceed to order, for, the investigation of the case. The inaction on the part of the officials of the concerned Police Station or omission on their part to register a case on intimation having been received by them from the salesman of the complainant qua the incident of theft as had occurred, cannot, baulk the claim of the complainant.

9. Moreover, the proof of incident as had taken place, is, provided by the entering of the incident in the daily diary register, hence, does not preclude, the, complainant from asserting the claim against the OP-Company for indemnifying to him the loss as was caused to him arising from the misplacement of currency and which theft was reported to the concerned Police Station and reproduced in the daily diary register merely, on, the plea that, no, FIR was lodged qua the theft, when, for reasons aforesaid the act of registering a case on the strength of the intimation/information provided, by, the complainant to the officer of the concerned Police Station, was, not within the domain or jurisdiction of the complainant, rather was the result of a lapse, on the part of the officer Incharge of the concerned Police Station. Moreover, proof of theft, as afforded by Annexure A/2 and the same, is, in satisfaction of the condition of the insurance policy requiring proof, of, theft.


Besides, also, when the untraced report could have been filed only on completion of investigation, which could have been carried out only on the recording of the FIR by the concerned official of the concerned Police Station, however, with, no, FIR having been recorded by the concerned officer of the concerned Poise Station, as such, no untrace report could be filed solely, on, account of omission and lapses on the part of the officer of the concerned Police Station, as a sequitor, hence, insistence on the part of the OP that the complainant tender an untraced report before, his, claim could be honoured by it, is, for reasons aforesaid an untenable objection raised by the OP.

10. Therefore, in, the OP-Company having repudiated the claim of the complainant for non-submission of FIR is, in our considered view untenable and is to be discountenanced. On this point we are supported by the case law as laid down in 2007(1) Parkash Singh Badal and another vs. State of Punjab and others, Supreme Court of India, decided on 06.12.2006.

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

i) That the OP-Company shall indemnify the complainant, to the extent of Rs.50,000/-;



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.26.09.2005, till making entire payment of the awarded sum;



iii) That the litigation cost is quantified at Rs.2000/- 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;



12. 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.

1.

Rupan Matharu aged 42 years S/o Late Ranjan Matharu R/o B-25, MCH 308, Deep Nagar, Phagwara Road, Hoshiarpur.
2.

Renu Phull aged 47 years D/o Sh. Ranjan Matharu now W/o Sh. Charanjit Singh Phull R/o House No. 94, Street No. 4-A, Bank Lane, Shankar Nagar, Fatehgarh Road, Hoshiarpur.


......... Complainants

versus


1. The Oriental Insurance Company Ltd., 32 GT Road, Jalandhar-144001, through its Branch Manager.


2. The New India Assurance Company Ltd., Bus Stand, Hoshiarpur, through its Manager.


........ Opposite Parties

1. The complainants namely Rupan Matharu and Renu Phull have filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act. Put briefly, the facts of the case are that on 19.3.2007, late Swaran Lata slipped from the stair case and suffered hip dislocation. She was immediately taken to Sardar Karam Singh Memorial Satnam Hospital, opposite party No. 1 by complainant No. 1 and one Satpal Matharu, where she was admitted. The history of the patient was got recorded by OP No. 2 – Dr. Tarlochan Singh. The complainant No. 1 was asked to deposit Rs. 10,000/-.
2.

It is the case of the complainants that OP No. 2 advised the complainants that the patient needs hip transplantation. That the vital sign chart was prepared after examining pulse, blood pressure, temperature etc. It is the grouse of the complainants that the patient remained unattended till next day. The patient was examined by the doctor on 20.3.2007. The abnormality of the left ventilator of the heart was found and the patient was advised Eco-cardiography. It was found that there was 49% disfunction of the left side of heart. The patient was advised the tablet “Nitercotin”. The patient was also cleared for surgery.
3.

It is the allegation of the complainants that since there was 49 disfunction of the left side of heart, therefore, in such a situation the patient could not be cleared for surgery. The patient should have been referred to some heart specialist institution, whereas she was kept in hospital of OP No. 1 for two days.
4.

It is further the case of the complainants that there is no full time heart specialist in the hospital of OP No. 1. That OP No. 2 – Dr. Tarlochan Singh is unqualified doctor. The laboratory tests were conducted by opposite parties No. 1 and 2, though there is no pathologist/technician in the hospital. It is further the allegation of the complainants that Dr. Sukhnandan Singh, who was to operate Swaran Lata for hip transplantation is not ortho surgeon, as he is merely a diploma holder.
5.

It is further the case of the complainants that on 20.3.2007, the patient was referred by Dr. Sukhnandan Singh to Raj 3D Scan- OP No. 5 for certain tests. The OP No. 5 charged Rs. 2,500/- from complainant no. 1, and thereafter, directly sent the report of tests to the Hospital of OP No. 1. That no receipt of payment was issued. That OP No. 5 also told the complainant that since the patient was referred by Dr. Sukhnandan Singh, therefore, the details of the report will be explained to him and not to the patient or complainant No. 1.
6.

It is further the case of the complainants that uptil the evening of 20.3.2007, the condition of the patient went on deteriorating. The blood pressure of the patient was low and the heart beat was fast. That at about 1 a.m. (on the intervening night of 20.3.2007 and 21.3.2007), the patient was referred to BBC Heart Care Pruthi Hospital, Lajpat Nagar, Jalandhar, where she was admitted. The Bio-chemcal profile of Swaran Lata was got investigated from the laboratory of OP No. 4. The test of UREA CREATINIE was reported as normal, but the doctor of the BBC Heart Carre Pruthi Hospital, Jalandhar diagnosed it as a case of Chronic Renal Failure.
7.

It is further the case of the complainants that on 20.3.2007, the test of UREA and S.CREATININE was found normal by the technician of Sainik Clinical Laboratory. It is the allegation of the complainants that the lab tests recorded by OPs No. 3 and 4 were contradictory. Had the condition of the patient been explained by the Doctors of OP No. 3, the patient must have been taken to DMC, Ludhiana or PGI.
8.

It is further the case of the complainants that the doctors of OP NO. 1 had given INSULIN injection to the patient, who was not suffering from any sugar problem. The authorities of Pruthi Hospital charged about Rs. 75,000/- from the complainant.
9.

It is further the case of the complainants that the opposite parties are jointly and severally liable for the death of Swaran Lata. The complainant has claimed the amount of Rs. 20.00 lacs as compensation, hence this complaint.
10.

The opposite parties No. 1 and 2 filed the reply. The preliminary objections vis-a-vis mis-joinder and cause of action were raised. On merits, the claim put forth by the complainants has been denied. However, it is admitted that Swaran Lata suffered hip problem on 19.3.2007. She was brought to OP No. 1. Dr. Sukhnandan attended upon the patient at about 1.30 p.m. The patient was immediately shifted for X-ray of right hip joint lumber spine. After examination of X-ray reports, the patient and her attendants were informed about her neck femur right side fracture.


They were also told that the patient requires surgery-Hemiarthoplasy. The daughter of the patient approached Dr. Sukhnandan with the request that she want to have second opinion. However, at about 5.30 p.m., the daughter of the patient gave a consent for surgery and thereafter, investigations/tests required for the surgery were conducted. It was found that the patient was suffering from Diabetes Mellitus with random blood sugar level 400 mg/d, thus Dr. Sukhnandan advised medical fitness at 6.30 p.m., and thereafter, Dr. Ravjot (Medical Specialist) examined the patient at about 7.30 p.m., who advised Echocardiography.
11.

That the attendants of the patient told Dr. Sukhnandan that they would get the echocardiography next day, as the surgery is to be performed in the evening. Thus, after echocardiography on 20.3.2007, the patient was declared fit for surgery by Dr. Ravjot, M.D. (Medicines). However, on 20.3.2007, the surgery was postponed as desired by the attendants and at about 8.30 p.m., the patient became drowsy and Hypotensive, as such was put on pulse oxymeter to monitor vitals. Again, the medical specialist was called at 8.40 p.m., who examined the patient and advised to start Dopamine infusion. However, the patient was immediately referred to higher centre for further management, as desired by the attendants. The attendants shifted the patient at 10.30 p.m., to Jalandhar. There was no lapse on the part of the concerned doctors of OP No. 1.
12.

It is further replied that after investigations and tests, the patient was attended upon by the competent and capable doctors. No test was ever done or performed by OP NO. 2. Dr. Sukhnandan Singh is a qualified Ortho surgeon. It is further replied that the attendants of the patient told that they want to get the tests conducted from Raj 3 D Scan Centre.
13.

Opposite Party No. 3 filed a separate reply. The preliminary objections vis-a-vis concealment of facts, jurisdiction and maintainability were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the primary history of the patient is with opposite parties No. 1 and 2, therefore, it might be correct that on 19.3.2007, Swaran Lata slipped from the stair case and suffered hip dislocation. It might also be correct that the patient was taken to the hospital of opposite parties No. 1 and 2. The patient became unconscious during the stay in the hospital of OP No. 1 and also showed abnormality of the left ventricle of the heart on 20.3.2007, thus the patient was advised Eco-cardiography which showed 49% dis-functioning of the let side of the heart.
14.

It is further replied that the patient was brought to the answering OP in Shock with Low Blood Pressure and Low Urine Output. The seriousness of the condition of the patient was discussed with the relatives of the patient. The patient was admitted to ICCU and proper treatment was started immediately. The monitoring of the patient was done regularly and continuously. ABG (Arterial Blood Gas) samples of the patient were also sent. The Potassium levels of the patient were normal. The routine investigations were also normal except Renal function tests which included blood urrea and serum creatinine. It is denied that the replying OP got the chemical profile of the patient from OP No. 4, rather the investigations were conducted in the hospital of the replying OP. The presence of high levels of blood Urea and S. Creatinine in the presence of low Urine output, shock and hypotension confirmed the diagnosis as Acute Renal Failure. The primary life threatening problem was shock and hypotension, which was responsible for the serious condition of the patient. The replying OP gave specific treatment, which was needed to the patient.
15.

It is further replied that an additional diagnosis of severe LV dis-function was also made at the hospital of the answering opposite party. The Blood Urea and S.Creatinine showed moderate increase and Potassium levels were normal, which showed that the patient did not need dialysis or referral to a Kidney Hospital. The Nephrologist also endorsed the treatment of hypotension. After the treatment in the hospital of the replying OP, the blood pressure of the patient started improving and stabilized around 90 mmHg. Urine output, which was nil, when the patient came, also showed mild improvement, which indicated that the treatment was in the right direction. However, the blood pressure did not improve beyond 90 mmHg and Urine output also remained low. Persistent hypotension had weakened the heart, as such it did not respond to the treatment and blood pressure remained low, despite of ionotropes and fluid therapy. Due to weak heart and damaged Kidneys, the blood pressure dropped further leading to cardiac arrest and death of the patient, despite of the best efforts by the doctors to save the patient. The cause of death of the patient was cardiac arrest, which occurred due to the hypotension of prolong standing. The cause of death was fully explained in writing to the relatives.

It is denied that the replying OP did not disclose the real and true cause of death. It is denied that the replying OP did not maintain the proper record of the treatment of the patient or did not explain the condition of the patient to the attendants. The condition of the patient was so critical that the relatives had voluntarily consented for the treatment of the patient in the hospital of the replying OP. It is denied that the replying OP charged Rs. 75,000/-. That only the amount of Rs. 14,000/- plus charges for the medical tests i.e. Rs. 2020/- were charged. There is no professional incompetency or negligence on the part of the replying OP.
16.

It is further replied that the life of the patient could not be saved, as she refused to respond to the treatment of the expert doctors, who did not fall short in their competency. The hospital and the doctors attending upon the patient were trained and experienced doctors, having post doctoral degree of DM and had been treating such cases.
17.

OP No. 4 was proceeded against exparte on 4.6.2008.
18.

OP No. 5 filed a separate reply. The preliminary objections vis-a-vis cause of action, the complainant is not a consumer and locus-standi were raised. On merits, the claim put forth by the complainants has been denied. It is replied that the present complaint has been filed to tarnish the clean image of the replying OP. That there is no element of any negligence in the services rendered by the replying OP. The patient had not paid any amount to the replying OP for tests/scan. It is denied that the complainant has paid Rs. 2,500/- for the tests. The replying OP always hand over the original reports to the patient or to his/her attendants. The complainants are not entitled for any compensation.
19.

OP No. 6 filed a separate reply. The preliminary objections vis-a-vis that the complainant is not a consumer, misjoinder and cause of action were raised. On merits, the claim put forth by the complainants has been denied. It is denied that Smt. Swaran Lata received any treatment at Paruthi Hospital,and if it is so, even then there was no error or omission on the part of the Paruthi Hospital in the performance of its professional duties. There is no professional error or omission on the prt of the OP No.3. The liability of the replying OP is limited, as per terms and conditions of the policy of insurance. The replying OP is not liable to pay any compensation.
20.

OP No. 7 filed a separate reply. The preliminary objections vis-a-vis maintainability and jurisdiction were raised. On merits, the claim put forth by the complainants has been denied. That as per terms and conditions of the insurance policy, the complaint is not maintainable against the replying OP. Moreso, no insurance policy was issued by the replying OP to cover the allegation of para No. 3 of the complaint to indemnify OP No. 5. However, as per policy, the maximum liability of the insurance company is Rs.10,00,000/- only.
21.

In order to prove the case, the complainants tendered in evidence affidavit of Rupan Matharu-complainant – Ex. C-1, prescription slip dated 19.3.2007 – Mark C-2, vital sign chart – Mark C-3, lab report dated 19.3.2007 – Mark C-4, consent letter dated 19.3.2007 – Mark C-5, receipt – Mark C-6, prescription slip dated 9.12.2007 – Mark C-7, scan report – Mark C-8, receipt dated 29.3.2007 – Mark C-9, certificate of Pruthi Hospital – Mark C-10, prescription slip of Pruthi Hospital – Mark C-11 (2 sheets), receipt dated 22.3.2007 – Mark C-12, receipts dated 22.3.207 – Mark C-13 (3 in nos.), receipts dated 21.3.2007 (10 in nos.) - Mark C-14, bill dated 22.3.2007 – Mark C-15, bill of Rs. 14,000/- - Mark C-16, prescription slip – Mark C-17, receipt dated 22.3.2007 – Mark C-18, photographs – Mark C-19, Mark C-20, affidavit of Satpal Malhotra – Ex. C-21 and closed the evidence.
22.

In rebuttal, the opposite parties No. 1 and 2 tendered in evidence affidavit of Dr. Sukhnandan Singh – Ex. OP-1, payment slip – Mark OP-2, prescription slip – Mark OP-3 (2 sheets), treatment record – Mark OP-4 (3 sheets), and consent – Mark OP-5. The OP No. 3 tendered in evidence affidavit of Dr. Raman Deep Singh – Ex. OP-A, certificate of BBC Heart Care – Mark OP-B, copy of Nurses Chart – Mark OP-C (4 sheets), treatment chart – Mark OP-D (2 sheets), copy of chart dated 21.3.2007 and 22.3.2007 – Mark OP-E & F, copy of consultation form – Mark OP-G (4 sheets), lab reports – Mark OP-H, progress note – Mark OP-J, ECG report – Mark OP-K, treatment chart – Mark OP-L, consent form – Mark OP-M, undertaking – Mark OP-N, and treatment chart – Mark OP-O. The OP No. 5 tendered in evidence affidavit of Dr. Raj Kumar – Ex. OP-5/I. The OP NO. 6 tendered in evidence affidavit of Dr. Ajay Garg – Ex. OP-6/I, and attested copy of insurance policy – Ex. OP-6/2. The OP No. 7 tendered in evidence affidavit of Parminder Singh – Ex. R-1, insurance policy – Ex. R-2, professional indemnity policy – Ex. R-3. The opposite parties closed their respective evidence.
23.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
24.

The point for consideration before this Court is whether the opposite parties were negligent in treating the patient ? The answer to this is in the negative.
25.

It has been held by the Hon'ble State Consumer Disputes Redressal Commission: Punjab: Chandigarh in case, Bimla Devi versus Doctor Davinder Kaur and Another, 1999(1) CPC 455 that where no expert is produced to prove the assertion of complainant-negligence, the mere affidavit of the complainant is not sufficient to prove the negligence. Likewise, the Hon'ble Supreme Court in re case Yacob Metheiv vs. State of Punjab and another, 2005(2) CPC 515 SC has held that a professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case,the skill which he did possess.


The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field, therefore, the standard is that of the reasonable average.
26.

It follows that a practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that particular art. To establish medical negligence, it must be shown, (1) that there is a usual and normal practice; (2) that the doctor has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken, had he been acted with ordinary care. Reliance placed on Dr. Sushil Tripathi and another vs. Ghanshyam Khatik, 2006(2) CPC 214 (NC).
27.

The Hon'ble Supreme Court in re-case Indian Medical Association vs. V.P. Shantha and others, 1995(6) SCC 651, wherein Bolam's case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Mathew vs. State of Punjab and another, 2005 SCC (Crl.) 1369, wherein it has been held that the negligence has to be established and cannot be presumed, merely because a medical procedure fails it cannot be stated that medical practitioner is guilty of negligence, unless it is proved that he did not act with sufficient care and skill and in absence of any proof of negligence on the part of doctor, the compensation cannot be granted.
28.

Now, it is clear that the negligence has to be established and cannot be presumed. Admittedly, in the present case, the complainants have not examined any doctor or expert to prove medical negligence on the part of the opposite parties. The self-serving affidavit of the complainants – Ex. C-1 and the affidavit of Satpal Malhotra – Ex. C-21 are not sufficient to prove the medical negligence on the part of the opposite parties. On the contrary, the opposite parties No. 1 and 2 have filed the affidavit of Dr. Sukhnandan Singh – Ex. OP-1, OP No. 3 has filed the affidavit of Dr. Raman Deep Singh – Ex. OP-A, the OP No. 5 has produced the affidavit of Dr. Raj Kumar – Ex. OP-5/I, the OP No. 6 has filed the affidavit of Dr. Ajay Garg – Ex. OP-6/I and OP No. 7 and filed the affidavit of Parminder Singh – Ex. R-1.
29.

The law is settled that deficiency against the doctor has to be proved by expert evidence. In this case, as no expert has been examined by the complainants to prove medical negligence on the part of the opposite parties, as such it is held that the opposite parties were not negligent of rendering deficient services to the complainants. Reliance placed on 2004(2) CLT 68, Ashok Kumar Choudhary vs. Shashi Bhushan Singh. The burden of proving the negligence by way of expert evidence or medical literature is always upon the complainant and in the absence of such evidence, the doctor cannot be held negligent, as the negligence has to be established and it cannot be presumed.
30.

As it has been held in para supra's that the complainants have failed to produce any evidence to prove medical negligence on the part of the opposite parties, therefore, they cannot be held liable for rendering either deficient services or medical negligence.
31.

As a result of the above discussion, it is held that there is no deficiency or medical negligence on the part of the opposite parties, therefore, the complaint is ordered to be dismissed. Keeping in view the facts and circumstances of the case, no order as to costs. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Rakesh Kumar son of Sh. Dhani Ram, Sole Proprietor of M/s Karan Traders, Chandla Market, Khanna, Distt. Ludhiana.

(Complainant)

Vs.



Oriental Insurance Company Limited, G.T. Road, Khanna through its Manager.

(Opposite parties)







O R D E R



1. Indica car of the complainant bearing registration no. PB-10-AX/2005/5316(Temp) was insured for Rs.3,25,000/- vide policy no. 233605 dated 17.2.2005, with OP-Insurance Company. The policy was valid upto 16.2.2006. On 24.2.2005 at 7 p.m., car was delivered by the complainant to his driver Sh. Surjit Singh with the instructions to report along with car in the morning on 25.2.2005. But driver failed to report along with car in his house, on 25.2.2005. Consequently, went to house of the driver but his where abouts could not be made known to the complainant.


Apprehending that driver had himself stolen and misappropriated the car, lodged report in P.S. Khanna on 26.2.2005. After investigation, police found that car was not misappropriated by the driver, rather it was stolen by some unknown persons, as such FIR no.68 of 2005 registered earlier was changed into section 379 IPC. Immediately on coming into notice of theft of the car, claim was lodged with the opposite party who assured to settle the same, but failed to do so despite repeated representations. Subsequently, opposite party sent a letter to the complainant to furnish non traceable report, which letter was received by him on 28.5.2005.


The police in report under section 379 IPC, submitted untraceable report, which was sent to opposite party and despite receiving the same, opposite party vide letter dated 12.12.2005 required to furnish non traceable report submitted by the Court for settlement of the claim. Complainant, for deficiency in service had filed a complaint in this Fora which was decided directing the complainant to make available non traceable report duly attested by Illaqa Magistrate to the opposite party. In compliance, non traceable report approved by the illaqua Magistrate was given to the opposite party, who again repudiated the claim vide letter dated 20.11.2008 on the ground that previously complainant had lodged complaint under section 408/420 IPC.


It was not a case of theft. This repudiation is assailed to be wrong, null, void and illegal by instituting this complaint under section 12 of the Consumer Protection Act, 1986. it is averred that the complainant has incurred huge loss as he had got the vehicle financed from HDFC Bank and is paying huge interest to the bank. Non settling of the claim and rejecting the same on lame excuses amounts to deficiency in service. He sought damages of Rs. 3,25,000/- under the insurance policy from the opposite party with 18% interest and in addition Rs.2,00,000/- damages by way of compensation for mental pain and agony.

2. OP-Insurance Company in reply claimed that complaint is barred under section 26 of the Consumer Protection Act, 1986, this Fora has no jurisdiction to try the complaint. Because immediately on receipt of the claim, it was duly registered, entertained, processed and as per directions of the Fora on scrutinizing, the claim was found not tenable in terms of the insurance policy. After adopting proper procedure for settlement of the claim, it was repudiated as No Claim vide letter dated 20.11.2008.


Because, the vehicle in question was not lost or snatched by unidentified persons, rather it was misappropriated by the driver of the complainant Sh. Surjit Singh who was not having good previous record. He was history sheeter. For that reason, complainant failed to take reasonable steps to safeguard the interest and committed breach of condition no.4 of the insurance policy. Sh. Surjit Singh was employed as driver without verifying his previous history and allowed him to get the vehicle with him at night. The loss occurred due to infidelity of the employee of the complainant, which is not covered under terms and conditions of the policy.


The complaint is not maintainable. As per investigation report of the investigator engaged by the opposite party, made out that the vehicle was not snatched by unidentified person. Investigator Sh. D.S. Chadha had made thorough investigation and gave his report dated 8.5.2005 that vehicle was misappropriated by driver Sh. Surjit Singh. Consequently, claimed that there is no deficiency in service on their part and the complainant not entitled for any relief. It was in view of such defence that insuring the vehicle of the complainant and filing present complaint by him are not disputed by the opposite party.

3. Parties led their evidence by way of affidavits and documents in view of their respective contentions.

4. We have heard the arguments addressed by the ld. counsel for the parties and have gone through the file, scanned the documents and other material on record.

5. It is admitted that qua theft of this very vehicle, complainant had earlier filed complaint bearing no.24/2006 against the opposite party which was decided by this Fora on 23.10.2008. In compliance with the order, complainant furnished to opposite party non traceable report duly attested by the Judicial Magistrate and again lodged the claim, which has been repudiated by opposite party vide letter Ex.C.7 (R15). Repudiation is under following three grounds:

I. The vehicle has not been lost or snatched by unidentified persons. Rather it has been misappropriated by the driver, Shri Surjit Singh, who was not having a good previous record and as per the police record, is a history sheeter.

II. Clause-4 of the terms and conditions of the Insurance Policy, which stands supplied to you, provides that the insured shall take all reasonable steps to safeguard the vehicle from loss r damage or to maintain it in efficient condition. In your case, it is observed that there is a breach of the above terms and conditions of the policy in as much as you had employed the driver without verifying his back history record and allowed him to keep the vehicle with him at night.

III. The loss has occurred due to in-fidelity of the employee of the insured and the same is not covered under the policy.



6. The ground of repudiation vide letter dated 20.11.2008 was passed within the period required by this Fora vide order dated 23.10.2008 to decide claim of the complainant, after furnishing non traceable report duly verified by the Judicial Magistrate. Repudiation of the claim was based upon report Ex.R.22 of Surveyor Sh. D.S. Chadha engaged by the opposite party. He in last para of his report in page mentioned as under:

“The insured has been found shear negligent in employing the driver, who was having criminal record and did not get his previous record/reputation before doing so. More-over, he believed him straight-way and allowed him to keep the vehicle at his place and thus taking risk simply on faith of the driver and thereby causing loss of the vehicle”



7. Then the conclusion drawn by surveyor in this report is as follows:

“In view of the discussions at pre-page and record available on file, it has been found that vehicle of the insured has not been lost/snatched by unidentified person. Rather it has been misappropriated by its driver Sh. Surjit Singh, who is not having good previous record and is a history sheeter criminal in the police record. The insured is also found negligent in employing such a person without taking his back history and record and believed such a criminal person and allowed him to keep the vehicle with him during night. Thus, the loss of vehicle is due to negligence of the insured and misappropriation by the driver. Thus, the claim of the insured be treated keeping in view this aspect and also on receipt of police investigation report.”



8. Basing such report and conclusion of its surveyor in his report Ex.R.22, opposite party vide communication Ex.C.7 repudiated the claim.

We are to adjudge legality of such repudiation. But before we actually come to decide such question, would prefer to high light relevant material qua it , which has come on the record.

9. Initially when FIR Ex.C.9 was lodged, complainant lodged it under section 408/420 IPC apprehending that his driver misappropriated the vehicle as was found missing along with vehicle from his house. He reiterated his such version in his letter Ex.R.31 dated 2.4.2005 and Ex.R.32 dated 26.2.2005 sent to S.S.P. Khanna. It appears from these letters as well as letter Ex.R.49 dated 14.4.2005 of the complainant sent to S.S.P. Khanna that his driver on 3rd day of incident got himself admitted in the hospital of Khanna and never came back with the car. He apprehended that driver was concocting story of snatching the car by force from him by some unknown persons. On such apprehension, he claimed that driver had misappropriated his vehicle.

10. However, it appears that version of the complainant qua misappropriation of his car by his driver did not satisfy the investigating agency who subsequently converted the case from misappropriation to theft by converting the FIR into section 379 IPC. It is apparent from Ex.C.8, copy of the order dated 13.9.2008 passed by Sub Divisional Judicial Magistrate, Khanna on application of the police for cancellation of the FIR. Complainant initially apprehended and suspected his employee i.e. driver for mis appropriating his car to whom it was interested.


But such apprehension proved false and the police concluded about theory of theft of the vehicle. Even otherwise, in view of the illustration (d) of section 379 IPC taking away the vehicle, by the driver would amount to theft. Because, the vehicle in such circumstances would amount to have been removed out of possession of the person entitled for its lawful possession and without his consent. So, if the complainant lodged report of misappropriation of the vehicle by his driver, would make no difference as driver also could commit theft in view of illustration (d) of section 379 IPC if police during investigation satisfy that it was a case of theft and not mis appropriation, so, converted the FIR to u/s 379 IPC.

11. Hon’ble National Commission in case United India Insurance Co. Ltd. & Anr. Vs. Ravi Kant Gopalka reported in IV (2007) CPJ 32 (NC) in such like situation where the vehicle was taken by driver for servicing and not returned nor driver was traceable, non settlement of claim by Insurance Company of the vehicle was held not justified as taking of the vehicle by driver was held amounting to theft.

12. Similar view was taken in earlier case by the Hon’ble National Commission reported in 1 (1994) CPJ 196 (NC) titled as The oriental Insurance Co. Ltd. & Anr. Vs. Rohit Kumar Gupta & Ors. In that case, complainant had insured his car including the risk of theft. Driver did not appear with the car and claim lodged was repudiated by the Insurance Company. It was held that it was case of theft covered under the policy risks.

13. Therefore, in the light of these authorities, it is apparent that even theft by servant would be covered under the Insurance Policy.

14. Whereas Sh. Rajiv Abhi advocate, ld. counsel for the Insurance Company contended that theft by servant, of the insured vehicle, would not be payable by the insurance company. In support he referred us to a case Surinder Singh Chauhan Vs. United India Insurance Company Ltd. reported in 1 (2003) CPJ 163 decided by Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla. But this authority is on different lines pertaining to theft committed by domestic servant from the house. Whereas facts of the case in hand are different. So, this authority is not attracted at all.

15. The next ground taken by the opposite party to repudiate the claim was that he failed to take reasonable steps to safe guard vehicle from loss or damage and had employed driver without verifying his back history record and allowed him to take the vehicle with him at night. This version of opposite party also owes allegiance to report Ex.R22 of its investigator Sh. D.S. Chadha who after making investigation reported that driver of the complainant Sh. Surjit Singh was history sheeter against whom between 1977 to 1997, 8 FIRs in different police stations of Punjab, Chandigarh were registered for committing theft etc. and other offences. But without making enquiry qua his back ground or character, was engaged as a driver by the complainant and thereby infringed clause 4 of the Insurance Policy. Condition no.4 of the Insurance Policy Ex. R.5 is as under:

“The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the even of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”

16. But we are of the view that while engaging the driver, employer expected to verify the driving silence of such person and to know as well as understood his driving skill. Once, the owner of the vehicle has verified license of the driver to be engaged and also about his skill to drive, he fulfills requirement of the law as has been held by the Hon’ble Supreme Court in case United India Insurance Company Vs. Sohan Singh, reported in 2004 (3) Supreme Court Cases, 297.

17. In the present case, driving license of Sh. Surjit Singh was valid. No law makes it incumbent upon the prospective employer to know or investigate criminal past of his proposed employee. Therefore, if the complainant failed to know qua past criminal conduct or activities of Sh. Surjit Singh, no blame can be made to the complainant nor he can be termed guilty of not taking reasonable steps to safe guard the vehicle from loss or damage. Therefore, he was wrongly held to have infringed condition no.4 of the Insurance Policy Ex.R.5.

18. The next reason conveyed to the complainant to repudiate the claim was infidelity of the employee. But while discussing point no.1 of the repudiation letter, we have already cleared that on apprehension, complainant had lodged report regarding misappropriation of the car by his driver but in fact it was stolen. Hence, there was no infidelity by driver of the complainant. Resultantly, repudiation of the claim on that ground is also not tenable.

19. In view of the discussions, we are of the clear view that opposite party was not justified and legal in repudiating the claim of the complainant and made him to knock the doors of the Fora twice for such legitimate claim under the Insurance Policy. Therefore, we allow this complaint and as a result direct opposite parties to pay the insurance amount on account of theft of the vehicle of the complainant under the insurance policy in terms thereof and also directed to pay him compensation of Rs.25,000/-(Rs. Twenty Five Thousands only) and litigation cost of Rs.2000/-(Rs. Two Thousands only) within 45 days of the receipt of copy of the order, failing which shall be liable to pay interest 9% per annum on the amount found payable to the complainant under the policy excluding the amount of compensation and cost. Copy of the order be made available to the parties free of costs. File be completed and consigned to record.

Manjit Kaur aged 68 years wife of late Sh. Rajinder Singh, resident of 25-BX-Model Town, Extension, Ludhiana.

(Complainant)

Vs.



1. The Oriental Insurance Company Limited, 146, Industrial Area-A, Opposite Allahabad Bank, Cheema Chowk, Ludhiana branch through its Branch Manager.



2. Diverse Agro, 48-B, Tagore Nagar, Ludhiana (Franchisee of Nanda Biomatirx), through its Manager.



3. Nandan Biomatrix 6-31113/2, Points of View Towers, Begumpet, Hyderabad-500016 (India) through its Managing Director.

(Opposite parties)









O R D E R





1. Complainant an agriculturist purchased 1400Kg. Safed Musli seed @Rs.390/- per Kg. from Diverse Agro-OP No.2 vide invoice dated 21.7.2005. She got the soil of her farm in village Hambran tested from opposite party no.2 and after receiving satisfactory reports qua soil and water, sown Safed Musli crop on 21.7.2005. Crop was got insured for Rs.8,99,500/- with the opposite party no.1-Insurance Company vide cover note no. 3026 dated 27.10.2005 and paid premium of Rs. 34,694/-. Consequently, opposite party no.1 issued insurance policy no.19. Insurance policy was issued by opposite party no.1 after properly and physically verifying and inspecting the crop and after going through reports of opposite party no.2. But opposite party no.1 illegally charged premium of 3.5% against prescribed 3%.


Opposite party no.2 issued germination certificate on 28.8.2005 after inspection by their inspectors who also inspected her fields on 14.8.2005, 28.8.2005, 29.9.2005, 23.10.2005, 18.11.2005, 15.12.2005, 12.1.2006, 18.2.2006, 29.3.2006 and 12.4.2006. As per these reports, her crop was growing satisfactorily. But subsequently, when on 3.5.2006 opposite party no.2 inspected the fields of the complainant, they found the crop heavily effected of pests (root grub). Immediately claim was filed on 5.5.2006 with opposite party no.1 who engaged surveyor Sh. Suresh Vashishat, who inspected her farm on 2.6.2006.


On advice of the surveyor, the crop was harvested so that rest of the crop may not be effected by pests. All documents required by the surveyor were made available. Thereafter, she repeatedly approached the opposite party no.1 to settle her claim, but was astonished to receive letter dated 14.8.2007 from the opposite party no.1 intimating repudiation of her claim. She claimed in this complaint under section 12 of the Consumer Protection Act 1986, that had spent huge amount to grow the crop, but suffered loss @ Rs.16,500/- per acre amounting to Rs. 10.86 lacs.


Opposite party no.1 wrongly repudiated the claim on the ground that there was only low yield which was not covered under the policy. Whereas her crop was attacked by pests causing loss and after harvesting received only Rs. 98,000/-. Repudiation of the claim by opposite party no.1 is arbitrary, wrong, null, void and illegal. Therefore, complainant has sought direction against opposite party no.1 to pay Rs. 8,01,500/- along with 18% interest and Rs.50,000/- as compensation for harassment and litigation costs.

2. Opposite party no.1-Insurance company in reply have admitted insuring Safed Musli crop of the complainant, lodging claim and repudiating the same. They have justified repudiation. It is averred that the matter of the complainant was got investigated from M/s Royal Associates. Crop was damaged not due to pests or disease, but it was a case of low yield of the crop, which was not covered under the policy. Hence, there was no liability of opposite party no.1 to make good loss due to low yield of the crop. Also averred that complainant has played fraud with the Insurance Company by procuring false inspection reports of her crop, in connivance with opposite party no.2. Reports of inspection from opposite party no.2 are wrong. Because employee of opposite party no.2 had visited farm of the complainant only three times. More than three inspection reports are manipulated. There was no damage to the crop due to pests.

3,. Opposite party no.2-Diverse Agro vide separate reply has taken plea that complaint is not maintainable against them and complainant has no locus standi to sue them. They have admitted sale of Safed Musli seed to the complainant. Claimed that as per memorandum of understanding dated 22.6.2005 with the complainant, they were under obligation to provide medicinal plants of Safed Musli to the complainant and also to provide technical assistance along with know how and to buy back the produce from the complainant. They complied in entirety with terms and conditions of memorandum of understanding. Under that agreement they are not liable for direct or indirect damage. Sowing of crop took place on 21.7.2005, which germinated will at 90%. Upto April,2006, the crop was good but suddenly in May,2006 there was heavy attack of pests found in the farm on 18 out of 20 plants checked, which is apparent from report dated 3.5.2006. Pests were beyond their control and hence there was no fault on their part and they are not liable to pay any compensation. There is no liability to be met.

4. Opposite party no.3-Nandan Biomatrix failed to file any written statement and as such was preceded against ex-parte.

5. Parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

6. We have heard the arguments addressed by the ld. counsel for the parties, have gone through the file, and scanned the documents and other material on record.

7. Under the insurance policy Ex.C.13, damage to Safed Musli crop by pests and disease including fire, lightning, riot with strike, storm, cyclone, earthquake and inundation was covered. It is also case of the complainant that she suffered loss when the insured crop was effected by pests and disease. Whereas, opposite party-Insurance Company denied damage to insured crop of the complainant due to pests and claimed that it was a case of low yield, which was not covered to be compensated under the insurance policy by opposite party. There is no dispute that no insurance coverage on account of low yield to the crop of the complainant was provided by opposite party. Therefore, without wasting time and material, we straight way would come to the question whether crop of the complainant was effected by pests, so as to entitle him for compensation from Insurance Company-OP No.1.

8. It is established that complainant when purchased seeds from opposite party no.2, had entered into a memorandum of understanding Ex.R.1 with them. Under that memorandum Ex.R.1, opposite party no.2 was to render technical assistance and know how to the complainant. Under such memorandum opposite party no.2 bound themselves to visit the farm of the complainant at any time during crop and during continuation of memorandum of understanding. The crop was sown on 21.7.2005 as per sowing certificate Ex.R.2 and R3. Seeds of Safed Musli were purchased vide invoice Ex.C.2 and Ex. C6 and sown after obtaining soil sample report Ex.C.4.

9. Complainant has also placed on record inspection reports by officials of opposite party no.2 Ex.C.8 to C10 and Ex.C.12, Ex.C14 to C21. In earlier reports Ex.C.8 to C10 , Ex.C12 to C20 plants of the crop were found in good condition. Ex.C.20 is the report dated 12.4.2006 and rest of the reports are prior to that date. However, the things changed vide inspection report Ex.C.21 dated 3.5.2006. On that date, at the time of inspection by Inspecting Officer of OP No.2, they found the crop having attack of pests (root grub). 18 out of 20 plants were found effected by pests and recommended sprinkle method and harvesting of the crop within 10 days after the spray. But according to ld. counsel for opposite party no.1, these inspection reports have been manipulated by the complainant in connivance with opposite party no.2. Because, they had carried out not more than three inspections and there is no proof that the crop was at all damaged by pests.

10. This argument of opposite party no.1 can not be permitted to stay, as complainant from the beginning vide letter Ex.C.22 dated 5.5.2006 reported to opposite party no.1 that her crop has been effected by pests and disease and required them to appoint the surveyor at the earliest. In this case, opposite party no.1 engaged M/s Royal Associates as Investigator and Sh. Suresh Vashishat as surveyor and loss assessor qua claim lodged by the complainant.


M/s Royal Associates had submitted the inspection report Ex.R.5 and to prove the same affidavit Ex.RW1/B of Sh. Kashmir Singh of M/s Royal Associates is relied. Similarly, report Ex.R.7 of the surveyor Sh. Suresh Vashishat is relied and to prove the same its author Sh. Suresh Vashishat is examined by placing his affidavit Ex,. RW1/C on the record. Perusal of these reports of the investigator and surveyor would show us, whether the crop of the complainant was damaged by pests or it was a case of low yield and she in connivance with officials of opposite party no.2 manipulated the inspection reports and only three inspections were conducted by them and not more than three.

11. M/s Royal Associates in their inspection report Ex.R.5 dated 20.6.2007 in finding no.4 has clearly mentioned that Diverse Agro persons Sh. Bharpur Singh and Sh. Sukhbir Singh used to inspect the crop every month in routine as per agreement. But according to him, both of them were simply graduate and not technical experts. At point no.5 of the report, reported that crop was sown in July 2005 and plants came out from seeds. After plantation, there was heavy rain and due to this crop was destroyed. He at point no.7 of the report referred to statement of complainant that representative of opposite party no.2 inspected her fields only three times. First during sowing, 2nd during germination and 3rd during taking out the musli. So, inspection reports made thereafter have been manipulated and are just on paper and procured without inspecting the crop. The investigator qua it has referred to statement of complainant.


But it can not be said in view of this statement made by the complainant that representative of the opposite party no.2 inspected her crop only thrice. It may be that in presence of the complainant such representative of the opposite party no.2 visited her farm only thrice, but under obligation of memorandum of understanding Ex.R.1, they had been visiting the crop every month and prepared inspection reports, which we have referred at earlier part of the order. Consequently, it can not be said that only three inspections were carried by representative of opposite party no.2 and inspection reports beyond three are forged or fabricated.

12. Then in para 8 of the report Ex.R.5, investigator has reported that experts also told that safed musli crop get damaged due to root grub. As contents of para 8 are material, so, the same is reproduced as under:

“As per opinion of Punjab Agriculture University Experts whether and soil of Punjab is not suitable for safed musli and they do not advise farmers for growing of safed musli. Experts also told that safed musli crop get damaged due to root grub that found in the soil in the month of July/August or November/December.”



13. So, it means when investigator consulted Agricultural Experts of Punjab Agricultural University, came to know that safed musli crop can be damaged due to root grub found in the soil in the month of July/August or November/December. It was in such scenario investigator reported that it was a case of low yielding and not effecting the crop by pests.

14. Respectively validity of the report of the investigator dated 20.6.2007 is to be seen and adjudge in the light that his report is subsequent to the surveyor’s report ex.R.7 dated 28.5.2007. It means M/s Royal Associates were engaged by opposite party no.1 after availing the services of the surveyor Sh. Suresh Vashishat & Company. Cause of loss in note 28 of his report Ex.R.7 is mentioned by him as under:

“The cause of loss as per Insured’s statement, Physical verifications, consultant’s verifications, Inspection report of Technical Agency Diverse Agro & Claim form is developing of Pest & disease, i.e. Root Grub and disease”

15. He by his own inspection found safed musli crop infected and made second visit to the fields with expert and found safed musli infected. So, when there was a clear report by the surveyor of opposite party no.1 that crop was infected and then they engaged the investigator, who gave twist to the facts by reporting that it was a case of low yield and not damage by pests. Whereas, damage by pests was concluded by surveyor in his report Ex.R.7. This report Ex.R.7 is in conformity with inspection report Ex.C.21 dated 3.5.2006 of employees of opposite party no.2 that crop was attacked by pests. Whereas, prior to such inspection crop was not found damaged by pests, as is apparent from earlier inspection reports Ex.C.8 to C.20. Sh. Sukhbir Singh partner of opposite party no.2 in his affidavit Ex. PW2/A has also authenticated the inspection reports by their representatives.

16. In these circumstances, contention of opposite party no.1 that there is no expert evidence qua damage to the crop by pests deserves to be rejected, in view of the discussions made above. As surveyor of opposite party no.1 was considered expert engaged by opposite party and he also took help of other experts while making his report Ex.R.7. There was no need to have referred the matter for further inspection.

17. In these circumstances, it is established that crop of the complainant was damaged or infected by pests attack and it was not a case of low yield, so as to exonerate the insurance company from their liability of compensation. Hence, repudiation of the claim by opposite party no.1 in these circumstances is not at all justified and proper. In such circumstances, this complaint deserves to be allowed.

18. Now is question that what was the loss suffered by the complainant when her safed musli crop was damaged by pests and how much loss he suffered? Sh. Suresh Vashishat surveyor in his report Ex.R.7 has assessed total loss of Rs. 2,71,251.16, but assessed the loss after applying excess and deduction clause, to the tune of Rs.73,500.31p.

19. It is also settled that surveyor report being an important document can not be brushed aside in absence of specific reasons. Reliance placed on case Bhim Singh Vs. national Insurance Company Limited & Anr. reported in 1 (2009) CPJ 106 (Union Territory Consumer Disputes Redressal Commission, Chandigarh; Prem Chand Sadana Vs. New India Assurance Co. Ltd. 1 (2009) CPJ 229(Uttrakhand State Consumer Disputes Redressal Commission, Dehradun; National Insurance Company Limited & Anr. Vs. Rajesh Kumar 1 (2009) CPJ 292 (Jharkhand State Consumer Disputes Redressal Commission, Ranchi and Netrananda Behera Vs. New India Assurance Co. Ltd. & Anr. 1 (2006) CPJ 416 (Orissa State Consumer Disputes Redressal Commission, Cuttak)

13. It is a settled law that report of the surveyor is an important document which can not be brushed aside without specific reason. As such, report of surveyor can be bases to assess the loss suffered by the complainant.

14. Sequel to above discussions, complaint allowed and as a result opposite party no.1 ordered to pay under the Insurance Policy, compensation of Rs. 73,500.31p to the complainant on account of loss suffered by her crop of safed musli due to pests attack and also to pay her compensation of Rs. 20,000/-(Rs. Twenty Thousands only) and for thrusting this unnecessary litigation ordered to pay litigation cost of Rs.2500/-(Rs. Two Thousands and Five Hundreds only). Order be complied within 45 days of receipt of copy of the order failing which opposite party no.1 shall be liable to pay interest @9% per annum on the amount of Rs.73,500.31p from the date of complaint till payment. Copy of the order be made available to the parties free of costs. File be completed and consigned to record.

Ajinder Singh son of Sh. Rajinder Singh, resident of 25-BX-Model Town, Extension, Ludhiana.

(Complainant)

Vs.



1. The oriental Insurance Company Limited, 146, Industrial Area-A, Opposite Allahabad Bank, Cheema Chowk, Ludhiana branch through its Branch Manager.



2. Diverse Agro, 48-B, Tagore Nagar, Ludhiana (Franchisee of Nanda Biomatirx), through its Manager.



3. Nandan Biomatrix 6-31113/2, Points of View Towers, Begumpet, Hyderabad-500016 (India) through its Managing Director.

(Opposite parties)









O R D E R




1. Complainant an agriculturist purchased 1400Kg. Safed Musli seed @Rs.390/- per Kg. from Diverse Agro-OP No.2 vide invoice dated 21.7.2005. He got the soil of his farm in village Hambran tested from opposite party no.2 and after receiving satisfactory reports qua soil and water, sown Safed Musli crop on 21.7.2005. Crop was got insured for Rs.8,99,500/- with the opposite party no.1-Insurance Company vide cover note no. 3025 dated 27.10.2005 and paid premium of Rs. 34,694/-. Consequently, opposite party no.1 issued insurance policy no.20. Insurance policy was issued by opposite party no.1 after properly and physically verifying and inspecting the crop and after going through reports of opposite party no.2. But opposite party no.1 illegally charged premium of 3.5% against prescribed 3%. Opposite party no.2 issued germination certificate on 28.8.2005 after inspection by their inspectors who also inspected his fields on 14.8.2005, 28.8.2005, 29.9.2005, 23.10.2005, 18.11.2005, 15.12.2005, 12.1.2006, 18.2.2006, 29.3.2006 and 12.4.2006.


As per these reports, his crop was growing satisfactorily. But subsequently, when on 3.5.2006 opposite party no.2 inspected the fields of the complainant, they found the crop heavily effected of pests (root grub). Immediately claim was filed on 5.5.2006 with opposite party no.1 who engaged surveyor Sh. Suresh Vashishat who inspected his farm on 2.6.2006. On advice of the surveyor, the crop was harvested so that rest of the crop may not be effected by pests. All documents required by the surveyor were made available. Thereafter, he repeatedly approached the opposite party no.1 to settle his claim, but was astonished to receive letter dated 14.8.2007 from the opposite party no.1 intimating repudiation of his claim.


He claimed in this complaint under section 12 of the Consumer Protection Act 1986, that had spent huge amount to grow the crop but suffered loss @ Rs.16,500/- per acre amounting to Rs. 10.86 lacs. Opposite party no.1 wrongly repudiated the claim on the ground that there was only low yield which was not covered under the policy. Whereas his crop was attacked by pests causing loss and after harvesting received only Rs. 98,000/-. Repudiation of the claim by opposite party no.1 is arbitrary, wrong, null, void and illegal. Therefore, complainant has sought direction against opposite party no.1 to pay Rs. 8,01,500/- along with 18% interest and Rs.50,000/- as compensation for harassment and litigation costs.

2. Opposite party no.1-Insurance company in reply have admitted insuring Safed Musli crop of the complainant, lodging claim and repudiating the same. They have justified repudiation. It is averred that the matter of the complainant was got investigated from M/s Royal Associates. Crop was damaged not due to pests or disease but it was a case of low yield of the crop, which was not covered under the policy. Hence, there was no liability of opposite party no.1 to make good loss due to low yield of the crop. Also averred that complainant has played fraud with the Insurance Company by procuring false inspection reports of his crop, in connivance with opposite party no.2. Reports of inspection from opposite party no.2 are wrong. Because employee of opposite party no.2 had visited farm of the complainant only three times. More than three inspection reports are manipulated. There was no damage to the crop due to pests.

3,. Opposite party no.2-Diverse Agro vide separate reply has taken plea that complaint is not maintainable against them and complainant has no locus standi to sue them. They have admitted sale of Safed Musli seed to the complainant. Claimed that as per memorandum of understanding dated 22.6.2005 with the complainant, they were under obligation to provide medicinal plants of Safed Musli to the complainant and also to provide technical assistance along with know how and to buy back the produce from the complainant.


They complied in entirety with terms and conditions of memorandum of understanding. Under that agreement they are not liable for direct or indirect damage. Sowing of crop took place on 21.7.2005, which germinated will at 90%. Upto April,2006, the crop was good but suddenly in May,2006 there was heavy attack of pests found in the farm on 18 out of 20 plants checked, which is apparent from report dated 3.5.2006. Pests were beyond their control and hence there was no fault on their part and they are not liable to pay any compensation. There is no liability to be met.

4. Opposite party no.3-Nandan Biomatrix failed to file any written statement and as such was preceded against ex-parte.

5. Parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

6. We have heard the arguments addressed by the ld. counsel for the parties, have gone through the file, and scanned the documents and other material on record.

7. Under the insurance policy Ex.C.13, damage to Safed Musli crop by pests and disease including fire, lightning, riot with strike, storm, cyclone, earthquake and inundation was covered. It is also case of the complainant that he suffered loss when the insured crop was effected by pests and disease. Whereas, opposite party-Insurance Company denied damage to insured crop of the complainant due to pests and claimed that it was a case of low yield, which was not covered to be compensated under the insurance policy by opposite party.


There is no dispute that no insurance coverage on account of low yield to the crop of the complainant was provided by opposite party. Therefore, without wasting time and material, we straight way would come to the question whether crop of the complainant was effected by pests, so as to entitle him for compensation from Insurance Company-OPNo.1.

8. It is established that complainant when purchased seeds from opposite party no.2, had entered into a memorandum of understanding Ex.R.1 with them. Under that memorandum Ex.R.1, opposite party no.2 was to render technical assistance and know how to the complainant. Under such memorandum opposite party no.2 bound themselves to visit the farm of the complainant at any time during crop and during continuation of memorandum of understanding. The crop was sown on 21.7.2005 as per sowing certificate Ex.R.2 and R3. Seeds of Safed Musli were purchased vide invoice Ex.C.2 and Ex. C6 and sown after obtaining soil sample report Ex.C.4.

9. Complainant has also placed on record inspection reports by officials of opposite party no.2 Ex.C.8 to C12 and Ex.C.14 to C21. In earlier reports Ex.C.8 to C12 , Ex.C14 to C20 plants of the crop were found in good condition. Ex.C.20 is the report dated 12.4.2006 and rest of the reports are prior to that date.


However, the things changed vide inspection report Ex.C.21 dated 3.5.2006. On that date, at the time of inspection by Inspecting Officer of OP No.2, they found the crop having attack of pests (root grub). 18 out of 20 plants were found effected by pests and recommended sprinkle method and harvesting of the crop within 10 days after the spray. But according to ld. counsel for opposite party no.1, these inspection reports have been manipulated by the complainant in connivance with opposite party no.2. Because, they had carried out not more than three inspections and there is no proof that the crop was at all damaged by pests.

10. This argument of opposite party no.1 can not be permitted to stay, as complainant from the beginning vide letter Ex.C.22 dated 5.5.2006 reported to opposite party no.1 that his crop has been effected by pests and disease and required them to appoint the surveyor at the earliest. In this case, opposite party no.1 engaged M/s Royal Associates as Investigator and Sh. Suresh Vashishat as surveyor and loss assessor qua claim lodged by the complainant. M/s Royal Associates had submitted the inspection report Ex.R.5 and to prove the same affidavit Ex.RW1/B of Sh. Kashmir Singh of M/s Royal Associates is relied.


Similarly, report Ex.R.7 of the surveyor Sh. Suresh Vashishat is relied and to prove the same its author Sh. Suresh Vashishat is examined by placing his affidavit Ex,. RW1/C on the record. Perusal of these reports of the investigator and surveyor would show us, whether the crop of the complainant was damaged by pests or it was a case of low yield and he in connivance with officials of opposite party no.2 manipulated the inspection reports and only three inspections were conducted by them and nor more than three.

11. M/s Royal Associates in their inspection report Ex.R.5 dated 20.6.2007 in finding no.4 has clearly mentioned that Diverse Agro persons Sh. Bharpur Singh and Sh. Sukhbir Singh used to inspect the crop every month in routine as per agreement. But according to him, both of them were simply graduate and not technical experts.


At point no.5 of the report, reported that crop was sown in July 2005 and plants came out from seeds. After plantation, there was heavy rain and due to this crop was destroyed. He at point no.7 of the report referred to statement of complainant that representative of opposite party no.2 inspected his fields only three times. First during sowing, 2nd during germination and 3rd during taking out the musli. So, inspection reports made thereafter have been manipulated and are just on paper and procured without inspecting the crop. The investigator qua it has referred to statement of complainant.

But it can not be said in view of this statement made by the complainant that representative of the opposite party no.2 inspected his crop only thrice. It may be that in presence of the complainant such representative of the opposite party no.2 visited his farm only thrice but under obligation of memorandum of understanding Ex.R.1, they had been visiting the crop every month and prepared inspection reports, which we have referred at earlier part of the order. Consequently, it can not be said that only three inspections were carried by representative of opposite party no.2 and inspection reports beyond three are forged or fabricated.

12. Then in para 8 of the report Ex.R.5, investigator has reported that experts also told that safed musli crop goet damaged due to root grub. As contents of para 8 are material, so, the same is reproduced as under:

“As per opinion of Punjab Agriculture University Experts whether and soil of Punjab is not suitable for safed musli and they do not advise farmers for growing of safed musli. Experts also told that safed musli crop get damaged due to root grub that found in the soil in the month of July/August or November/December.”



13. So, it means when investigator consulted Agricultural Experts of Punjab Agricultural University, came to know that safed musli crop can be damaged due to root grub found in the soil in the month of July/August or November/December. It was in such scenario investigator reported that it was a case of low yielding and not effecting the crop by pests.

14. Respectively validity of the report of the investigator dated 20.6.2007 is to be seen and adjudge in the light that his report is subsequent to the surveyor’s report ex.R.7 dated 28.5.2007. It means M/s Royal Associates were engaged by opposite party no.1 after availing the services of the surveyor Sh. Suresh Vashishat & Company. Cause of loss in note 28 of his report Ex.R.7 is mentioned by him as under:

“The cause of loss as per Insured’s statement, Physical verifications, consultant’s verifications, Inspection report of Technical Agency Diverse Agro & Claim form is developing of Pest & disease, i.e. Root Grub and disease”

15. He by his own inspection found safed musli crop infected and made second visit to the fields with expert and found safed musli infected. So, when there was a clear report by the surveyor of opposite party no.1 that crop was infected and then they engaged the investigator, who gave twist to the facts by reporting that it was a case of low yield and not damage by pests. Whereas damage by pests was concluded by surveyor in his report Ex.R.7. This report Ex.R.7 is in conformity with inspection report Ex.C.21 dated 3.5.2006 of employees of opposite party no.2 that crop was attacked by pests. Whereas, prior to such inspection crop was not found damaged by pests, as is apparent from earlier inspection reports Ex.C.8 to C.20. Sh. Sukhbir Singh partner of opposite party no.2 in his affidavit Ex. PW2/A has also authenticated the inspection reports by their representatives.

16. In these circumstances, contention of opposite party no.1 that there is no expert evidence qua damage to the crop by pests deserves to be rejected, in view of the discusssions made above. As surveyor of opposite party no.1 was considered expert engaged by opposite party and he also took help of other experts while making his report Ex.R.7. There was no need to have referred the matter for further inspection.

17. In these circumstances, it is established that crop of the complainant was damaged or infected by pests attack and it was not a case of low yield, so as to exonerate the insurance company from their liability of compensation. Hence, repudiation of the claim by opposite party no.1 in these circumstances is not at all justified and proper. In such circumstances, this complaint deserves to be allowed.

18. Now is question that what was the loss suffered by the complainant when his safed musli crop was damaged by pests and how much loss he suffered? Sh. Suresh Vashishat surveyor in his report Ex.R.7 has assessed total loss of Rs. 2,71,251.16, but assessed the loss after applying excess and deduction clause, to the tune of Rs.73,500.31p.

19. It is also settled that surveyor report being an important document can not be brushed aside in absence of specific reasons. Reliance placed on case Bhim Singh Vs. national Insurance Company Limited & Anr. reported in 1 (2009) CPJ 106 (Union Territory Consumer Disputes Redressal Commission, Chandigarh; Prem Chand Sadana Vs. New India Assurance Co. Ltd. 1 (2009) CPJ 229(Uttrakhand State Consumer Disputes Redressal Commission, Dehradun; National Insurance Company Limited & Anr. Vs. Rajesh Kumar 1 (2009) CPJ 292 (Jharkhand State Consumer Disputes Redressal Commission, Ranchi and Netrananda Behera Vs. New India Assurance Co. Ltd. & Anr. 1 (2006) CPJ 416 (Orissa State Consumer Disputes Redressal Commission, Cuttak)

13. It is a settled law that report of the surveyor is an important document which can not be brushed aside without specific reason. As such, report of surveyor can be bases to assess the loss suffered by the complainant.

14. Sequel to above discussions, complaint allowed and as a result opposite party no.1 ordered to pay under the Insurance Policy, compensation of Rs. 73,500.31p to the complainant on account of loss suffered by his crop of safed musli due to pests attack and also to pay him compensation of Rs. 20,000/-(Rs. Twenty Thousands only) and for thrusting this unnecessary litigation ordered to pay litigation cost of Rs.2500/-(Rs. Two Thousands and Five Hundreds only). Order be complied within 45 days of receipt of copy of the order failing which opposite party no.1 shall be liable to pay interest @9% per annum on the amount of Rs.73,500.31p from the date of complaint till payment. Copy of the order be made available to the parties free of costs. File be completed and consigned to record.

The National Oil Company,

Rep. by its Prop.

Md. Showkath Ali,S/o. Gudu Saheb,

R/o. Dr.No.18-14-14, Syed Khan Street,

Opp. To Stadium Mosque, Guntur. … Complainant

AND

The Oriental Insurance Co., Ltd.,

Rep. by its Divisional Manager,

Divisional Office-I,

D.S. Complex, Main Road,

Kothapet, Guntur. …. Opposite party






O R D E R


This complaint is filed U/S 12 of the Consumer Protection Act, 1986 by the complainant praying to pass an award against the opposite party to a tune of Rs.29,000/- towards shop burglary claim compensation with interest @24% p.a., from the date of incident i.e., from 10-07-2000 till the date of realization, for damages of Rs.25,000/- towards pain and mental agony and for costs of Rs.5,000/-.

The averments of the complaint in brief are as follows,

The complainant has been carrying on business in selling all kinds of industrial and automotive lubricants under the name and style of “The National Oil Company” near APSRTC bus stand, Mangalagiri Road, Guntur. The complainant obtained a shop keepers insurance policy with the opposite party under Policy No.1480/2000 valid from 24-03-2000 to 23-03-2001. While obtaining policy the complainant had paid premium under section wise, such as coverage for burglary and house breaking, cash in safe etc.

On 10-7-2000 night at about 9.00 pm after attending the business the complainant locked the shop and went to home. On the next day i.e., on 11-7-2000 morning at about 9.00 am as usual the complainant came to the shop and found that some unknown offenders made a hole to the northern side wall of the shop and on verification he found that a cash of Rs.25,000/- which was kept in the iron almirah (safe) was stolen by breaking open the lock and also some oil tins worth Rs.4,000/- were committed theft. The complainant informed the same to Old Guntur police station who registered the same as Cr.No.513/2000 u/s 461 and 380 IPC.

The complainant immediately informed above incident to the opposite party and on its request he submitted all the relevant documents as required by the opposite party. The opposite party informed the complainant that his claim will be settled at the earliest possible date. The police made enquiries to trace out the accused as well as the stolen property but in vain. At last, the police concerned referred the complaint as ‘undetectable’.

Despite repeated requests and demands made by the complainant, the opposite party did not choose to settle the claim and has not come forward for payment of the amount. On 13-06-06 the opposite party sent a letter to the complainant to submit certain documents to their surveyor to assess the loss. As per its request the complainant submitted all the relevant documents to the surveyor and also to the opposite party once again. Even then, the opposite party did not settle the claim of the complainant and subjecting him to lot of mental agony and financial hardships. The attitude of the opposite party clearly falls under the deficiency of service. Having no other go on 20-07-07, the complainant got issued a registered legal notice to the opposite party, calling them to settle the claim. The opposite party acknowledged the same and got issued a reply with all false and baseless allegations. Due to the attitude of the opposite party the complainant suffered a lot of mental agony. Hence, the complaint.

The opposite party filed its version. The contents in the version in brief are as follows,

The averments of the complaint are neither true nor correct. The complainant is put to strict proof of the averments. The allegations in the complaint that on 10-07-2000 the complainant after attending the business locked the shop and on the next day i.e., on 11-07-2000 he opened the shop and found that some unknown offenders make a hole on the northern side wall, cash of Rs.25,000/- was stolen which was kept in iron almirah, that Rs.4,000/- worth of oil tins were stolen that Old Guntur police station registered the case in Cr.No.513/2000 U/S 416 and 318 IPC are all not admitted by this opposite party and the complainant is put to strict proof of the same. Further averments in the complaint that the opposite party requested to submit all relevant documents for settlement of the claim, that though the complainant fulfilled the request, the opposite party did not choose to settle the claim are all incorrect.

U/S 10 of Consumer Protection Act any complaint before the District Forum shall be filed within two years from the date on which the cause of action arise. As per the pleadings and documents it is very much clear that the offence took place in the year 2000. Hence, the complaint is barred by limitation and it has to be rejected on this count alone.

Inspite of the letters sent by this opposite party to the complainant for production of stock book, sale records, ledgers, purchase bills and cash book etc., instead of submitting those documents, the complainant went on issuing legal notices, filing the complaint etc against this opposite party. There is no deficiency of service on the part of this opposite party. The claim of the complainant is not tenable and there are no bonafides. Hence, the complaint may be dismissed.

The complainant filed affidavit in suppport of his complaint. The opposite party also filed affidavit insupport of its version. On behalf of complainant Exs.A-1 to A-8 are marked.

Ex.A-1 is the insurance policy. Ex.A-2 is the FIR in Cr.No.513/2000 U/S.461 and 380 IPC of Old Guntur Police Station. Ex.A-3 is the police certificate dated 31-12-01. Ex.A-4 is the letter addressed to the surveyor by the complainant dated 11-6-02. Ex.A-5 is the letter dated 13-6-06 issued to the complainant by the opposite party. Ex.A-6 is the letter addressed by the complainant to the opposite party. Ex.A-7 is the copy of registered notice issued to the opposite party on behalf of complainant dated 20-07-07. Ex.A-8 is the copy of registered letter addressed by the opposite party to the complainant advocate. No documents are marked on behalf of opposite party.

Now the points for consideration are that,

1. Whether the complaint is time barred?

2. Whether there is deficiency of service on the part of opposite party?

3. To what relief the complainant is entitled?

POINTS 1 AND 2:- It is the case of the complainant that he is running automobile lubricant shop under the name and style of the National Oil Company in Guntur and that he had obtained a shop keepers insurance policy for his shop which is valid from 24-3-2000 to 23-03-2001, that on the intervening night of 10-07-2000 some unknown offenders made a hole on the northern side wall of his shop and committed theft of cash of Rs.25,000/- and oil tins worth Rs.4,000/- and thereupon he gave a police complaint which was registered under Cr.No.513/2000 U/S 461 and 380 IPC in Old Guntur police station vide Ex.A-2 and that he made a claim to the opposite party that the opposite party has not settled the claim inspite of his repeated requests and submitting all necessary documents. It is the case of the opposite party that the complaint is time barred and that there is no deficiency of service on the part of the opposite party since the complainant has not submitted all the required documents, the claim was not settled.

Ex.A-4/11-06-2002 is the letter addressed by the complainant to the surveyor intimating about submission of final report of police vide Ex.A3 and requested to take necessary steps regarding his claim. After a long lapse of 4 years from Ex.A-4, the opposite party on 13-06-06 addressed a letter vide Ex.A-5 to the complainant requiring him to submit purchase bill, day book, ledger, sale record, stock register, cash book and bank passbook for assessing the loss and to settle the claim. This Ex.A-5 letter clearly shows that the complainant had made a claim and it is pending for want of certain documents, which are required to be submitted by the complainant. Subsequently, on 24-7-06 complainant addressed a letter to the opposite party submitting the required documents and it was acknowledged by the opposite party on 25-07-06.


Inspite of submission of required document under Ex.A-6 the claim of the complainant was not settled by the opposite party and thereby the complainant issued registered notice under Ex.A-7 dated 20-07-07. Subsequent to the said registered notice under Ex.A-7 the opposite party again addressed a letter to the complainant under Ex.A-8 dated 03-08-07 requiring the complainant to submit certain documents which were already said to have been submitted by the complainant under Ex.A-6.


The correspondence under Exs.A-4 to A-6 clearly shows that the complaint before this Forum is in time. This clearly shows that even though the complainant had submitted all the required documents the claim was not settled by the opposite party and instead of settling the claim the opposite party again addressed another letter to submit the required documents under Ex.A-8. Therefore, it is clearly establish that there is deficiency of service on the part of the opposite party in settling the claim. Thus, we find that the complaint is in time and there is deficiency of service on the part of the opposite party. These issues are answered accordingly in favour of complainant.



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

1. The opposite party is directed to pay an amount of Rs.29,000/- (Rupees twenty nine thousand only) towards insured amount of burglary claim with interest @9% p.a., from the date of complaint till the date of realisation.
2. The opposite party is further directed to pay an amount of Rs.2,000/- (Rupees two thousand only) towards damages for the pain and mental agony suffered by the complainant.
3. The opposite party is further directed to pay an amount of Rs.1,000/- (Rupees one thousand only) towards costs.
4. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of the copy of the order, failing which the amounts ordered in item Nos.2&3 shall carry interest @9% p.a., till the date of realisation.

The National Oil Company,

Rep. by its Prop.

Md. Showkath Ali,S/o. Gudu Saheb,

R/o. Dr.No.18-14-14, Syed Khan Street,

Opp. To Stadium Mosque, Guntur. … Complainant

AND

The Oriental Insurance Co., Ltd.,

Rep. by its Divisional Manager,

Divisional Office-I,

D.S. Complex, Main Road,

Kothapet, Guntur. …. Opposite party







O R D E R


This complaint is filed U/S 12 of the Consumer Protection Act, 1986 by the complainant praying to pass an award against the opposite party to a tune of Rs.29,000/- towards shop burglary claim compensation with interest @24% p.a., from the date of incident i.e., from 10-07-2000 till the date of realization, for damages of Rs.25,000/- towards pain and mental agony and for costs of Rs.5,000/-.

The averments of the complaint in brief are as follows,

The complainant has been carrying on business in selling all kinds of industrial and automotive lubricants under the name and style of “The National Oil Company” near APSRTC bus stand, Mangalagiri Road, Guntur. The complainant obtained a shop keepers insurance policy with the opposite party under Policy No.1480/2000 valid from 24-03-2000 to 23-03-2001. While obtaining policy the complainant had paid premium under section wise, such as coverage for burglary and house breaking, cash in safe etc.

On 10-7-2000 night at about 9.00 pm after attending the business the complainant locked the shop and went to home. On the next day i.e., on 11-7-2000 morning at about 9.00 am as usual the complainant came to the shop and found that some unknown offenders made a hole to the northern side wall of the shop and on verification he found that a cash of Rs.25,000/- which was kept in the iron almirah (safe) was stolen by breaking open the lock and also some oil tins worth Rs.4,000/- were committed theft. The complainant informed the same to Old Guntur police station who registered the same as Cr.No.513/2000 u/s 461 and 380 IPC.

The complainant immediately informed above incident to the opposite party and on its request he submitted all the relevant documents as required by the opposite party. The opposite party informed the complainant that his claim will be settled at the earliest possible date. The police made enquiries to trace out the accused as well as the stolen property but in vain. At last, the police concerned referred the complaint as ‘undetectable’.

Despite repeated requests and demands made by the complainant, the opposite party did not choose to settle the claim and has not come forward for payment of the amount. On 13-06-06 the opposite party sent a letter to the complainant to submit certain documents to their surveyor to assess the loss. As per its request the complainant submitted all the relevant documents to the surveyor and also to the opposite party once again. Even then, the opposite party did not settle the claim of the complainant and subjecting him to lot of mental agony and financial hardships. The attitude of the opposite party clearly falls under the deficiency of service. Having no other go on 20-07-07, the complainant got issued a registered legal notice to the opposite party, calling them to settle the claim. The opposite party acknowledged the same and got issued a reply with all false and baseless allegations. Due to the attitude of the opposite party the complainant suffered a lot of mental agony. Hence, the complaint.

The opposite party filed its version. The contents in the version in brief are as follows,

The averments of the complaint are neither true nor correct. The complainant is put to strict proof of the averments. The allegations in the complaint that on 10-07-2000 the complainant after attending the business locked the shop and on the next day i.e., on 11-07-2000 he opened the shop and found that some unknown offenders make a hole on the northern side wall, cash of Rs.25,000/- was stolen which was kept in iron almirah, that Rs.4,000/- worth of oil tins were stolen that Old Guntur police station registered the case in Cr.No.513/2000 U/S 416 and 318 IPC are all not admitted by this opposite party and the complainant is put to strict proof of the same. Further averments in the complaint that the opposite party requested to submit all relevant documents for settlement of the claim, that though the complainant fulfilled the request, the opposite party did not choose to settle the claim are all incorrect.

U/S 10 of Consumer Protection Act any complaint before the District Forum shall be filed within two years from the date on which the cause of action arise. As per the pleadings and documents it is very much clear that the offence took place in the year 2000. Hence, the complaint is barred by limitation and it has to be rejected on this count alone.

Inspite of the letters sent by this opposite party to the complainant for production of stock book, sale records, ledgers, purchase bills and cash book etc., instead of submitting those documents, the complainant went on issuing legal notices, filing the complaint etc against this opposite party. There is no deficiency of service on the part of this opposite party. The claim of the complainant is not tenable and there are no bonafides. Hence, the complaint may be dismissed.

The complainant filed affidavit in suppport of his complaint. The opposite party also filed affidavit insupport of its version. On behalf of complainant Exs.A-1 to A-8 are marked.

Ex.A-1 is the insurance policy. Ex.A-2 is the FIR in Cr.No.513/2000 U/S.461 and 380 IPC of Old Guntur Police Station. Ex.A-3 is the police certificate dated 31-12-01. Ex.A-4 is the letter addressed to the surveyor by the complainant dated 11-6-02. Ex.A-5 is the letter dated 13-6-06 issued to the complainant by the opposite party. Ex.A-6 is the letter addressed by the complainant to the opposite party. Ex.A-7 is the copy of registered notice issued to the opposite party on behalf of complainant dated 20-07-07. Ex.A-8 is the copy of registered letter addressed by the opposite party to the complainant advocate. No documents are marked on behalf of opposite party.

Now the points for consideration are that,

1. Whether the complaint is time barred?

2. Whether there is deficiency of service on the part of opposite party?

3. To what relief the complainant is entitled?

POINTS 1 AND 2:- It is the case of the complainant that he is running automobile lubricant shop under the name and style of the National Oil Company in Guntur and that he had obtained a shop keepers insurance policy for his shop which is valid from 24-3-2000 to 23-03-2001, that on the intervening night of 10-07-2000 some unknown offenders made a hole on the northern side wall of his shop and committed theft of cash of Rs.25,000/- and oil tins worth Rs.4,000/- and thereupon he gave a police complaint which was registered under Cr.No.513/2000 U/S 461 and 380 IPC in Old Guntur police station vide Ex.A-2 and that he made a claim to the opposite party that the opposite party has not settled the claim inspite of his repeated requests and submitting all necessary documents. It is the case of the opposite party that the complaint is time barred and that there is no deficiency of service on the part of the opposite party since the complainant has not submitted all the required documents, the claim was not settled.

Ex.A-4/11-06-2002 is the letter addressed by the complainant to the surveyor intimating about submission of final report of police vide Ex.A3 and requested to take necessary steps regarding his claim. After a long lapse of 4 years from Ex.A-4, the opposite party on 13-06-06 addressed a letter vide Ex.A-5 to the complainant requiring him to submit purchase bill, day book, ledger, sale record, stock register, cash book and bank passbook for assessing the loss and to settle the claim.


This Ex.A-5 letter clearly shows that the complainant had made a claim and it is pending for want of certain documents, which are required to be submitted by the complainant. Subsequently, on 24-7-06 complainant addressed a letter to the opposite party submitting the required documents and it was acknowledged by the opposite party on 25-07-06. Inspite of submission of required document under Ex.A-6 the claim of the complainant was not settled by the opposite party and thereby the complainant issued registered notice under Ex.A-7 dated 20-07-07. Subsequent to the said registered notice under Ex.A-7 the opposite party again addressed a letter to the complainant under Ex.A-8 dated 03-08-07 requiring the complainant to submit certain documents which were already said to have been submitted by the complainant under Ex.A-6.


The correspondence under Exs.A-4 to A-6 clearly shows that the complaint before this Forum is in time. This clearly shows that even though the complainant had submitted all the required documents the claim was not settled by the opposite party and instead of settling the claim the opposite party again addressed another letter to submit the required documents under Ex.A-8. Therefore, it is clearly establish that there is deficiency of service on the part of the opposite party in settling the claim. Thus, we find that the complaint is in time and there is deficiency of service on the part of the opposite party. These issues are answered accordingly in favour of complainant.



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

1. The opposite party is directed to pay an amount of Rs.29,000/- (Rupees twenty nine thousand only) towards insured amount of burglary claim with interest @9% p.a., from the date of complaint till the date of realisation.
2. The opposite party is further directed to pay an amount of Rs.2,000/- (Rupees two thousand only) towards damages for the pain and mental agony suffered by the complainant.
3. The opposite party is further directed to pay an amount of Rs.1,000/- (Rupees one thousand only) towards costs.
4. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of the copy of the order, failing which the amounts ordered in item Nos.2&3 shall carry interest @9% p.a., till the date of realisation.

Smt. Mary D’Souza,

W/o. Silvester Monthero,

Aged about 55 years,

R/A. Kerebail,

Permannur Post, Ullal,

Mangalore. …….. COMPLAINANT







VERSUS



1. The Oriental Insurance Co. Ltd.,

Division Office,

Court Road, Udupi.

Represented by –

The Divisional Manager.



2. The Oriental Insurance Co. Ltd.,

Divisional Office,

Balmatta Road,

Mangalore,

Represented by –

The Divisional Manager. ……. OPPOSITE PARTIES













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 Parties claiming certain reliefs.

The Complainant is the registered owner of Mechanized Fishing Vessel, mother of “Velankanni” bearing registration No.F-MNG 89. The Complainant obtained Marine Hull Policy bearing policy No.422700/MH/2006/239, the said policy is valid from 13.2.2006 to 12.02.2007.

It is submitted that on 22.12.2006 at about 10.00 p.m. when the boat was engaged in fishing in about 47 fathoms of deep water off Karwar Coast, all of a sudden its engine was abruptly stopped with loud sound and it could not be restarted inspite of that apprehending problem in the gear box the tindel and crew of the said boat brought the boat to a nearest port i.e., Karwar by towing and the gear box of the engine was repaired. On reaching the Karwar port before the said boat was being berthed along side the Jetty, the tow line attached to the towing vessel was negligently released by the crew of the other boat. Consequently, the Complainant’s said vessel came in same speed and dashed against the Jetty resulting in extensive damage to its front portion of the Hull. As there was no immediate danger of sinking, after getting the gear box and Hull repaired temporarily, the said vessel was slowly and carefully taken to Mangalore for unloading the fish catch. After unloading the fish, the said vessel was brought to Bengre and hauledup there to inspect, estimate the damage and for its repair.

It is submitted that the Complainant reported the same to the Opposite Party and submitted all the required documents despite of the same the Opposite Party did not settle the claim and started asking one or the other documents which was also furnished by the Complainant. Since the Complainant could not wait till settlement Complainant had repaired the said vessel by spending Rs.4,76,988/-.

It is submitted that, the Opposite Party sent a letter dated 17.4.2008 stating that the admissible liability is Rs.81,000/- only on the basis of the 2nd Surveyor’s opinion and the Complainant was neither informed about the appointment of the 2nd Surveyor nor about referring the matter to him for opinion. It is submitted that the Opposite Party has no right to appoint a 2nd surveyor or seek 2nd Surveyor’s opinion when there was no dispute with regard to the 1st survey report. It is submitted that the settlement of claim offered by the Opposite Party is not acceptable and the same is arbitrary and contended that the service rendered by the Opposite Party amounts to deficiency hence the above complaint is filed by the Complainant before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to pay Rs.4,76,988/- along with interest at 18% p.a. from 22.12.2006 to 12.08.2008 and also claimed Rs.1,02,000/- as compensation and cost of the proceedings.



2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version admitted the policy but denied the amount spent for repair of the boat by the Complainant and also denied the extent of damages as claimed by the Complainant.

It is submitted that during the processing of the claim of the Complainant, the Opposite Party No.1 has found several discrepancies and exaggeration in assessing the actual loss by the Surveyor deputed. Hence the claim file was referred to Institute of Insurance Surveyors and Adjusters Bangalore Unit for second opinion and Bangalore Unit has returned the claim file with second opinion from Mr.TIM Ashraff and the said Surveyor opined the actual loss to the tune of Rs.81,000/- only. It is further submitted that the Complainant has prevailed over Mr.H.M. Rao the Surveyor and got the survey report for an exorbitant amount without therebeing a re-inspection report with photographs. It is also stated that there is collusion between the Complainant, agent, repairer and surveyor in foisting false estimate, bills and survey report.

It is also submitted that the Complainant not produced bills under VAT only submitted the bare bills on letter heads issued by the repairer dealers. It is contended that this FORA has no jurisdiction to entertain the complaint under Section 12 of the Consumer Protection Act as the entire transactions were held at Udupi and contended that there is no deficiency in service and prayed for dismissal of the complaint.

Opposite Party No.2 also the branch office of Oriental Insurance Company and submitted that there is no cause of action 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 this FORA has jurisdiction to entertain the complaint?



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



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













(iv) What order?

4. In support of the complaint, Smt.Mary D’Souza (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. Ex C1 to C7 were marked for the Complainant as listed in the annexure. One Mr.M.Sharath Kumar (RW1), Divisional Manager of the Opposite Party No.1 filed counter affidavit and answered the interrogatories served on him. One Mr.TIM Ashraff (RW2) – Surveyor, Loss Adjuster and Claims Investigator filed counter affidavits but not answered the interrogatories served by the Complainant. Ex R1 to R24 were marked for the Opposite Parties as listed in the annexure. Both parties produced notes of arguments.

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

Point No.(i): Affirmative.

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

5. Point No. (i):

In the present case, the 1st plea taken by the Opposite Party Company is that this FORA has no jurisdiction to entertain the complaint which is not acceptable because the Opposite Party Company has a branch office within the jurisdiction of this FORA and hence as per section 11(2)(b) of the C.P. Act, the complaint is maintainable and this FORA has jurisdiction. Hence point No.1 held in favour of the Complainant.



Point No.(ii) to (iv):

As far as point No.(ii) is concerned, the facts which are not in dispute is that the Complainant is the registered owner of fishing vessel “Mother of Valankanni” bearing registration No.F-MNG-897 and the Complainant obtained Marine Hull Policy to the above said vessel for the period commencing from 13.2.2006 to 12.2.2007 for a sum of Rs.10,00,000/- (as per Ex R1).

Now the point in dispute between the parties before the FORA is that, the Complainant contended that the insured vessel having left Mangalore fishing harbour on 17.12.2006 was engaged in fishing at about 47 fathoms off the Karwar coast until the 22nd of December 2006, when at about 2200 hours on that day, Mr.Lingappa Jetty, the tindel of the vessel heard some loud sound in the engine room and the engine was said to have stopped by itself, and upon a thorough checking of the engine room, he noticed that the gear box had failed. The master of the vessel requested towing assistance from another vessel nearby named ‘Jalaroshan’ who reportedly towed the vessel to the nearest port Karwar, and here, when the vessel was being berthed alongside jetty, the tow line attached to the towing vessel Jalaroshan was reportedly released by the crew earlier than expected, and the vessel which subsequently lost control dashed against the jetty, resulting in the damage sustained by the vessel. The assured was informed, and the gear box of the vessel was repaired on 24.12.2004, and thereafter the vessel sailed back to Mangalore where they reached by about 1,830 hours on 25.12.2006. On 26.12.2006 after unloading the fish catch the vessel was hauled up ashore at Bengre, Mangalore for repairs.


According to the Complainant the above vessel was extensively damaged and repairer estimated the cost of repair at Rs.4,71,243.75 and the same was repaired by spending Rs.4,60,625/- and haul up charges of Rs.10,000/-. The Opposite Party offered only Rs.81,000/- which is arbitrary and the 1st surveyor assessed the loss at Rs.3,75,000/- and the Opposite Party did not accept the survey report. It is contended that the settlement offered by the Opposite Party is not justified hence came up with this complaint.

The Opposite Party interalia contended that the company issued marine policy to the above said vessel but the same is subject to the terms and conditions stated therein which includes the clauses TL, CTL, OTL, SL, SC, SRCC PA and the loss claimed by the Complainant is not due to reasons assigned either by the Complainant or the 1st surveyor and as such the Company referred the matter to the 2nd surveyor and filed a report before this fora and offered Rs.81,000/- to the Complainant. And contended that the Complainant is not a consumer within the meaning of said term as defined in the Consumer Protection Act.

However, in order to determine the point in issue, we have gone through the entire documents as well as the oral evidence of the parties i.e., the evidence of CW1, RW1 and RW2 and Ex C1 to C7, Ex R1 to R24.

In this case, on careful scrutiny of the survey report issued by the surveyor i.e., Mr.H.M. Rao dated 16.11.2007 (i.e., Ex R2) reveals that on 22.12.2006 around 10 p.m. while the insured vessel engaged in fishing at 47 fathoms of water near Karwar tindel heard some loud sound in the engine room and the engine was stopped. Immediately he got into the engine room to find out the problem, after thorough checking it was found that the gear box had failed, with the help of another vessel Jalaroshan towed the vessel to Karwar Harbour. While near the jetty the rope tied to Jalaroshan vessel was released by her crew members.


Then tindel of the insured vessel could not control the vessel and dashed into the jetty resulted in the following damages. 1) Bow broken, (2) Vessel’s body has opened on the fore, (3) Manickers (Manikkals) 44 Nos. cracked/broken, (4) Fish hold partially opened, (5) Body planks on both the sides cracked, (6) Keel, Keel bank, false keel and stem were cracked where the bolts were fitted, (7) Covering board broken/cracked, (8) Front box broken, (9) Railings broken, (10) Fenders broken. And further stated that on 24.12.2006 the gear box was repaired at Karwar and with care the insured vessel was sailed back to Mangalore harbour and reached Mangalore fishing harbour around 6.30 p.m. on 25.12.2006. After unloading the catch fish the insured vessel was hauled up at Bengre, Mangalore for repair.

On going through the complaint as well as the 1st survey report, now the 1st question arises in our mind why the Complainant not intimated the accident to the Opposite Party Company as soon as the incident took place? And further it arises why the Complainant had not attempted to haul the vessel ashore at Karwar itself when it had suffered extensive damage to her hull and not in state to remain afloat. If at all the Complainant wished to sail to Mangalore, why the damage was not reported to the Company, why the survey could not be arranged at Karwar itself? And why temporary repairs were not affected on the vessel and after taking the approval of the underwriters for the same.


We find in this case, if at all she wished to sail to Mangalore in such a condition, the damage to the vessel could have been reported to the Company, the survey could have arranged at Karwar itself and the temporary repair could have been affected on the vessel and after taking the approval of the underwriters the vessel could have brought to Mangalore. In the present case, no such attempt was made by the Complainant. Further it is proved that the Complainant herself admitted in her complaint that the incident was intimated to the Opposite Party Company only on 26.12.2006.

It is significant to note that, the damages noted by the surveyor in this case, the vessel would not have been in a position to be even water borne (remain afloat) and structurally seaworthy. We cannot imagine about the vessel sailing from Karwar to Mangalore with the condition shown, especially with the ice and fish catch in the hold/ cold storage.

Apart from the above, we have noticed several lapses on the part of the 1st surveyor while assessing/ drawing the survey report. According to the surveyor the cause of damage stated by him on page No.6 i.e., (1) the insured vessel dashing against the jetty has resulted in damage to the vessel (2) the gear box had failed. There is a marine hull claim form attaching to the report, it is found the tindel’s statement. Wherein the tindel specifically stated that on 24.12.2006 the gear box was repaired at Karwar and with the care the insured vessel was sailed back to Mangalore and reached Mangalore fishing harbour around 6.30 p.m., on 25.12.2006. After unloading the catch fish the insured vessel was hauled up at Bengre Mangalore for repairs but the surveyor has not commented anything as to the cause of damage. Because here it becomes the duty of the surveyor, being a competent person assigned to do so, to study the veracity of such statement and has to make his recommendations to the underwriters, with substantial technical backings, after analyzing the various factors.


On the basis of such statements he is also expected to ascertain, whether the cause of loss alleged by the assured/ tindel is probable under the given circumstances and also whether the proximate cause of the loss alleged by the tindel/assured is an insured peril under the policy and if so, were there any lapses on the part of the assured, likely to have prejudiced the liability of the underwriters and if so, what were the nature of such lapses etc. In the given case, as per the statement of Lingappa i.e., tindel he heard the sound in the engine room, the engine was said to have stopped by itself. Upon thorough checking of the engine room he noticed that the gear box had failed but the surveyor has not tried to find out what was the nature of damage or failure of the gear box and has not mentioned it anywhere in his report.


Apart from the above, we have noticed that the underwriter i.e., Opposite Party Company sought a clarification as per their letter dated 12.12.2007 to the Complainant stating that (1) the Hull is said to have sustained major damages at Karwar, had it been repaired at Karwar, whether the Company’s liability would have been reduced to a considerable extent? (2) Whether the vessel which was towed from Karwar to Mangalore in a damaged condition and thereafter hauled up for repairs at Mangalore could have resulted in more damages? The surveyor H.M. Rao in reply to the above said letter stated as follows (in his own words): “after getting your letter, I had telephonic discussion with Mr.Silvester Monthero i.e., the Complainant’s husband regarding the queries raised by the company. And during the discussion he stated that the fish and ice in the fish hold was removed in Karwar fishing harbour. Once the insured vessel was without load, the damaged portion of the vessel (to the bow) was above water level.


Hence they could sail back to Mangalore fishing harbour”. Here again we have noticed that the vessel was not towed to Mangalore as per the surveyor but vessel had actually sailed back to Mangalore with her own power and so according to the surveyor the vessel with all the severe damage and her body opened on the fore part was not only seaworthy but also was able to sail with her own power upto Mangalore.


Now our attention is drawn to the paragraph 11 on page No.4 of the survey report, wherein it is stated that “on 24.12.2006 the gear box was repaired at Karwar and with care the insured vessel was sailed back to Mangalore and reached Mangalore fishing harbour around 6.30 p.m. on 25.12.2006. After unloading the fish catch the insured vessel was hauled up at Bengre Mangalore for repair” but the surveyor ignored that the vessel damaged portion would have been below the water line when the vessel sail along with fish catch.





Now it is very clear that the damage observed on the vessel, the damage to the fish hold and the unloading of fish catch at Mangalore by sailing of the vessel to Mangalore finds place in the survey report. When such being the position, was it necessary for the surveyor to have clarification from the husband of the insured to re-confirm whether the vessel sailed to Mangalore in her loaded condition.


This itself shows that the surveyor appointed in this case is not certain and not acted diligently. It is very difficult to consider that when the vessel sustained damage to the fish hold, with vessel stem vertically split into two and the damaged portion remaining below the water level with loaded fish catch against the wind waves and current in the sea the vessel can be sailed.

However, we have referred the Section 55 (1) of the Marine Insurance Act 1963 which defines, unless the policy otherwise provides, the insurer is liable for any loss proximately caused by a peril insured against, but subject as aforesaid, the insurer is not liable for any loss which is not proximately caused by a peril insured against and here it becomes the duty of the surveyor to ensure what is the proximate cause of the loss”.


And further the Section 6.1.1 it reads that the loss or damage caused by the perils of the seas, rivers, lakes on other navigable waters. The terms ‘perils’ of sea refers only to the tortuous accident or casualties of the sea. Further clause 6.2.3 of the IFVC clause reads that loss of or damage to the subject matter insured caused by the negligence of the masters, officers, crew etc. provided such loss or damage has not resulted for want of due diligence by the assured, owners or managers.

From the above position of law made very clear that even though the accident took place and damaged the vessel while in navigation it is the bounden duty of the assured to take due diligence. In case if there is want of due diligence the company is not liable for such damage. In the given case, it is very clear that the Complainant who is an insured failed to take proper measure as may be reasonable for the purpose of averting or minimizing a loss. The Complainant has violated the condition by allowing the vessel to sail in her damaged condition without taking approval from the underwriters.


Even the surveyor appointed by the company has failed to observe many more things as we discussed herein above. Apart from the above the Section 41 (5) of the Act reads that in a time policy there is no implied warranty that the ship shall be sea worthy at any stage of the adventure, but where, with privity of the assured the ship is sent to sea in an unseaworthy state the insurer is not liable for any loss attributable to unseaworthiness. Likewise, the section 78(4) of the Marine Insurance Act 1963 reads that it is the duty of the assured and his agents in all cases to take such measures as may be reasonable for the purpose of averting or minimizing a loss.


Here in this case, it is very clear from the available documentary evidence that admittedly the vessel was met with an accident on 22.12.2006 and the Complainant failed to intimate the same to the underwriters and moreover the said vessel was damaged due to the insured vessel dashed against the jetty has resulted in damage to the vessel as stated herein above and further the gear box had failed. Under such circumstances the Complainant should not have sailed the vessel that also with full of catch fish from Karwar Harbour to Mangalore Harbour without getting approval from the underwriter in this case shows that the Complainant has violated the terms and conditions of the Marine Hull Policy.

We find that since the Opposite Party Company admitted the damages in part and offered Rs.81,000/- which cannot be brushed aside because the Opposite Party company has shown before the FORA that the report of the 1st surveyor has many lapses and we also agree with the Opposite Party Company. Under such circumstances, the steps taken by the Opposite Party Company to get an opinion from the 2nd surveyor herein this case the TIM Ashraf is acceptable. We have gone through the 2nd survey report in fact the said surveyor had given parawise remarks and stated in detail after considering each and every point even though he has not personally seen the vessel. Since the 1st surveyor not considered several aspects while discussing the damage to the vessel we cannot accept the survey report as is condition because surveyor failed to observe many more things.

However, as far as the damage to the vessel is concerned, it is stated that even though the vessel was damaged condition in Karwar itself the vessel was not towed but sailed with her own power in her extensively damaged condition. Further when the vessel was extensively damaged as stated by the surveyor the vessel could not have been water borne to sail.


Since there are number of above factors involved, by considering all the above discussions we are of the considered opinion that on the condition stated by the surveyor the vessel was not in a fit state to remain afloat or sail. When the boat is reasonably not fit in all respects the insured should not have allowed to sail the vessel from Karwar to Mangalore. When the vessel made attempt to sail in her condition prevailed it is one of the violations of Marine Insurance Act 1963 section 78(4). Even though the Opposite Party under goodwill and gesture offered Rs.81,000/- to the Complainant which we feel is reasonable. The Complainant is at liberty to receive Rs.81,000/- from the Opposite Party company.

In view of the above discussions, we are of the considered opinion that the complaint has no merits deserves to be dismissed. No order as to costs.



6. In the result, we pass the following:


ORDER

The complaint is dismissed. No order as to costs.

Vidya Sagar son of Sh.Om Sarup Aggarwal, House No.222, Sector –6, Panchkula.


---Complainant.
V e r s u s



The Oriental Insurance Co. Ltd., Divisional Office-III, SCO No.10-A, Ist Floor, Sector 7-C, Madhya Marg, Chd –160019 through its Divisional Manager.

---Opposite Parties.






Sh.Vidya Sagar has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OPs be directed:-

a) To renew the mediclaim insurance policy from 29.05.2007 in order to protect the benefits of continuity of the mediclaim policy.

b) To pay a sum of Rs.25000/- on account of mental agony and harassment etc.

c) To pay a sum of Rs.10000/- as costs of litigation.

2. In brief the case of the complainant is that he got mediclaim insurance policy from OP in the year 2001. Since then he had been continuously renewing the same upto the year 2007. (Photocopies of the insurance policies are Annexure C-1 to C-6). On 28.05.2007, the Complainant wrote a letter (Annexure C-7) for renewal of his policy for the year 2007-08 and sent a cheque of Rs.8625/- as premium. However, OP returned the above said cheque of the Complainant along with the letter with the following remarks (“cheque returned to the insured by hand as there is adverse claim ratio for the last 2 years. As per condition No.5.9 of the policy, the policy can be renewed with mutual consent only.


We are not wishing to renew the policy. Inconvenience caused is regretted”). According to the Complainant, he again requested the OP through letters C-9 to C-12 but to no effect and his request for renewal of the policy has been wrongly declined. It has further been pleaded that OP is bound to renew his insurance policy as per the law. The ground mentioned in the note on the foot of the letter (Annexure C-7) is contrary to the guidelines framed by IRDA. In these circumstances, the present complaint was filed seeking the reliefs mentioned above.

3. In the reply filed by OP, it has been admitted that the Complainant got his mediclaim insurance policy in the year 2001. Since then he had been getting the same renewed upto the year 2007. It has also been admitted that on 28.05.07 request was made for renewal of the insurance policy in question and a cheque of Rs.8625/- was also offered. The case of the OP is that as per the clause 5.9 of terms and conditions of the insurance policy, it can only be renewed with mutual consent of both the parties. According to OP, it is well within its right to refuse the renewal of the insurance policy in question. The request for renewal of the policy was considered. However, keeping in view the claim ratio of the earlier years, a bona fide decision was taken that the renewal of the policy will not be in the interest of the company.


It has further been added that the Complainant of its own cannot compel the OP to renew the mediclaim insurance policy at a premium fixed by the Complainant himself. Thus according to the OP, it was well within its competence to refuse the renewal of the policy. So the renewal has been rightly refused and the Complainant has no right to get it renewed. In these circumstances, according to OPs, there is no deficiency in service on its part and the complaint deserves dismissal.

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

5. The facts are almost admitted. It is the admitted case of the parties that the Complainant took mediclaim insurance policy in the year 2001 and he had been getting the same renewed continuously upto the year 2007. It is also admitted fact that on 28.05.2007, the Complainant made a request for renewal of the policy for the year 2007-08 but the said request was declined.

The case of the OP is that in view of clause 5.9 of the policy, it has right to refuse the renewal of the policy. So OP was well within its right to refuse the renewal.

Clause 5.9 of the insurance policy in question reads as under:-

“Clause 5.9:-



The policy may be renewed by mutual consent. The company shall not however be bound to give notice that it is due for renewal and the Company may at any time cancel this Policy by sending the Insured 30 days notice by registered letter at the Insured's last known address and in such event the Company shall refund to the Insured a pro-rata premium for unexpired Period of Insurance. The Company shall, however, remain liable for any claim which arose prior to the date of cancellation. The Insured may at any time cancel this policy and in such event the Company shall allow refund of premium at Company's short period rate only (table given here below ) provided the claim has occurred up to date of cancellation.

Xxxxxxx”

6. On the other hand, the case of the Complainant is that as per the instructions issued by the IRDA, the OP is bound to renew his insurance policy. Our attention has been drawn to letter (Annexure C-13). Clause B of the said letter reads as under:-

“We refer to our various circulars on the above subject and wish to bring to your notice the following issues that have been pointed out by IRDA as frequently occurring errors at the operating offices:

a) xxxxxxx

b) The operating office refuses the renewal if the account is claims prone or if the claims ratio is adverse. Please note that the renewal cannot be denied if the account is claims prone. However, there can be a loading imposed on the premium duly __ (illegible) but restricted to the original sum insured”.

c) XXXXXXXX

d) Xxxxxxxx

We would advise you to communicate the above to all your operating offices”.

7. From the bare perusal of this letter, it is apparent that the renewal cannot be denied if the account is claims prone. From note on the foot of the letter (Annexure C-7), it is apparent that the renewal has been denied on the ground that the claim ratio is adverse for the last two years. In view of clause B of the letter (Annexure C-13), reproduced above, the request for renewal cannot be denied on the ground that there is adverse claim ratio. Hence, the denial of the renewal of the insurance policy is contrary to the guidelines issued by the IRDA. So the refusal of renewal of the insurance policy in question amounts to deficiency in service on the part of OP.

8. In view of above findings, the complaint is allowed with direction to OP to renew the insurance policy in question w.e.f. 29.05.2007. OP is also directed to pay a sum of Rs.10000/- as compensation for mental agony and harassment etc. besides Rs.5000/- as costs of litigation.

9. This order be complied with by the OP within one month from the date of receipt of its certified copy, failing which the OP shall also be liable to pay the aforesaid amount of Rs.10,000/- to the complainant along with penal interest @ 12% p.a. from the date of filing of the complaint i.e. 18.05.2009 till its realization besides costs of litigation.

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

Shri Kaushal Kumar Bhardwaj

S/O Shri Radhey Shyam,

R/O Jyoti Kunj, Khalini, Shimla-171002.



… Complainant.



Versus



M/S Oriental Insurance Company Limited,

Mythe Estate, Kaithu, Shimla-171003

Through its Divisional Manager.

…Opposite Party.







O R D E R:

This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is registered owner of a Mahindra Pik-Up bearing registration No.HP-63-1377, which was insured, by him, with the OP-Company, for a sum of Rs.3,61,000/-, for a period of one year, commencing from 31.08.2005 to 30.08.2006. He further avers that the aforesaid vehicle, unfortunately, met with an accident, on, 16.09.2005 at Tara Devi when the same was on its way from Shimla to Shoghi, during the currency of the insurance policy and suffered extensive damage. It is further averred that, the factum of the vehicle, having been met, with an accident, was reported to the OP-Company, who deputed a surveyor to inspect the vehicle and assess the loss.


Thereafter, he, retrieved the vehicle and took the same to M/S Snow view Automobiles and submitted the estimate of repairs to the OP-Company to the tune of Rs.78,222/- and after completion of all the codal formalities, lodged a insurance claim with the OP-Company, who instead of settling the insurance claim, closed it as no claim for the reason that the driver Shri Ashok Kumar was not having a valid and effective driving licence. 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, 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 possessing a valid and effective driving licence, hence, it being breach of terms and conditions of the insurance policy, the OP-Company was well within its right to repudiate the claim of the complainant. However, it is admitted that surveyor was appojnted to inspect the vehicle and assess the loss caused to it, which was payable to the insured as per terms and conditions of the insurance policy. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties 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 named and styled as ‘Mahindra Pik-up’ as revealed by the registration certificate, which bears Annexure A-1, to be falling in the category of a, ‘light motor vehicle’, met, with an accident, on 16.09.2005. The accident, as, had so occurred, had occurred during the currency of the insurance policy, purchased by the complainant from the OP-Company which bears Annexure A-2. The OP-Company resists the claim of the complainant on the score that the driver of the ill-fated vehicle was not at the relevant time, possessing a valid and effective driving licence, inasmuch, as, with the vehicle being categorized, as a ‘light transport vehicle’, its, driver possessing a licence to drive a light motor vehicle, without an endorsement of his being entitled to drive a transport vehicle, hence, was not possessed of a valid and effective driving licence to drive it.

6. Even if, for the sake of reiteration, it is presumed that the vehicle being Mahindra Pick up- Goods carriage, i.e. Light Transport Vehicle, is categorized as ‘Light Transport Vehicle’, even then in the light of the case law as reported in 2008(1) T.A.C. 812 (S.C.) Supreme Court, in case National Insurance Company Ltd., versus Annappa Irappa Nesaria & Others, wherein it has been held that the driver who had a valid licence to drive a light motor vehicle, prior to 28th March, 2001, was held authorized to drive a light goods vehicle, hence, on a scrutiny of the driving licence of the driver, Annexure-A-3, who was driving the afflicted vehicle, at the relevant time, and its divulging that the licence to drive a light goods vehicle was issued, on, 22.07.1999, hence, prior to 28.03.2001, as, such, he was authorized to drive the light goods vehicle, at the relevant time, as such, the repudiation of the claim of the complainant was unjust and arbitrary.

7. Since, the Loss Assessor in his report dated 02.10.2005, Annexure OP R-2, while discarding certain estimated amounts, as purportedly expendable by the complainant on the repair of the vehicle, while discarding the same, has not assigned valid and good reasons. Therefore, his assessment qua loss cannot be accepted, in the light of Annexure A-4 to A-6, copies of the receipts.


Resultantly, we hold that the complainant is entitled to be indemnified by the OP-Company, to the extent of the sum, as incurred by him, on the repair of the vehicle, to make it road worthy, which in the given facts and circumstances of the case is quantified at Rs.79,022/-, comprised in the final bills of repairs forwarded to the OP-Company and detailed in the complaint, which fact has not come to be controverted , hence, the admissible amount, which is to be defrayed to the complainant, comes to Rs.79,022/- which shall be paid to the complainant along with interest at the rate of 9% per annum, from the date of filing of the complaint, i.e. 14.11.2005, till actual payment is made. In addition to this, the OP-Company shall also pay litigation cost of Rs.2500/-. This order shall be complied with, by the OP-Company within a period of forty five days, after the date of receipt of copy of this order.

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

Rakesh Kumar son of Sadhu Ram, resident of House No. 1/51/1, Shakti Nagar, Opposite Dhobi Ghat, District Hoshiarpur.


........ Complainant

versus


The Oriental Insurance Company Ltd., Division Sub-Office, above California Dhaba, Chandigarh Road, Near Mini Secretariat, Hoshiarpur.


......... Opposite Party




1.

The complainant namely Rakesh Kumar has filed the present complaint, under section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act.” Put briefly, the facts of the case are that the complainant was interested to purchase a vehicle, “ Tavera” from Dada Motors, Jalandhar, which was to be financed through Dena Bank , Hoshiarpur. That the complainant approached the dealer at Dada Motors , Jalandhar .


The complainant was told that the delivery of the vehicle is subject to production of the insurance policy and the post delivery and delivery order from the Bank. Thus, the complainant got the post delivery insurance from the Opposite party – Oriental Insurance Company Ltd., but the delivery order could not be obtained from the Bank as the Bank refused to give loan. Thus, the complainant could not purchase the said vehicle, as such he could not supply the chassis and engine number. The OP also did not issue any insurance policy. The complainant approached the opposite party to refund the policy amount, but of no avail, hence this complaint.
2.

The opposite party filed the reply. On merits, the claim put forth by the complainant has been denied. It is replied that on the request of the complainant a post delivery cover note No. CHDC-177651 was issued on 14.6.2007 for the purchase of a Tavera 2007, Model Car. The complainant paid the premium of Rs. 22,548/-. The complainant was to supply the engine No. and chassis No. and also to submit the relevant bills regarding the purchase of the vehicle, but he failed to furnish the particulars of purchase. However, the complainant retained the original cover note with him throughout the period of policy and even did not inform he opposite party that he had not purchased the car.


Therefore, no refund can be given to the complainant after the expiry of the insurance period. The complainant is estopped by his act and conduct from filing the present complaint. It is further replied that the duty is casted upon the complainant to surrender the original cover note, in case he was not interested in continuing the policy. It is further replied that the insurance policy was duly prepared and only chassis no. and engine no. of the vehicle were to be added.
3.

In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, supplementary affidavit – Ex. C-4, copy of application dated 10.4.2008 – Mark C-2, cover note – Ex. C-3, and closed the evidence.
4.

In rebuttal, the opposite party tendered in evidence affidavit of Sh. Ajay Garg, Sr. Divisional Manager – Ex. R-1 and affidavit of Sh. Ajay Garg – Ex. R-2 and closed the evidence on behalf of the opposite party.
5.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
6.

The opposite party has admitted that a post delivery cover note No. CHDC-177651 dated 14.6.2007 – Ex. C-3 was issued for the purchase of Tavera 2007, Model Car. It is also admitted that the complainant paid a sum of Rs. 22,548/- on account of premium. The opposite party has raised the plea that the complainant was to supply the engine No. and chassis No. and other relevant documents, which he has failed to do so. The opposite party has also raised the defence that the complainant never informed that he had not purchased the car, which was got insured through cover note No. CHDC-177651 – Ex. C-3.
7.

Now, the only point which calls decision from this Court is whether the complainant informed the opposite party that he had not purchased the Tavera 2007, Model Car ?
8.

The complainant has placed on record a letter – Mark C-2 dated 10.4.2008 written to the Branch Manager, Oriental Insurance Company Ltd., Hoshiarpur – OP for the refund of insurance amount of post delivery insurance Cover Note. It has been stated in the said letter that the complainant could not purchase any vehicle, therefore, the refund of the amount of insurance amount be allowed/given. The cover note in question is Ex. C-3 on record.
9.

The opposite party has raised the plea that the complainant has not informed that he had not purchased the car, but this plea of the opposite party did not hold any water, as qua Mark C-2, the complainant has informed the opposite party that he had not purchased the vehicle. The said letter is dated 10.4.2008.
10.

Now, it is proved on record that the complainant has purchased Post Delivery Insurance Cover Note – Ex. C-3. It is also proved on record that qua Mark C-2, the intimation to the opposite party-insurance company was given on 10.4.2008 with regard to non-purchase of the vehicle. Since, the Cover Note qua Ex. C-3 remained in force from 14.6.2007 to 10.4.2008 and the complainant failed to give the information to the opposite party that he could not purchase the vehicle, therefore he is entitled for the refund of the premium amount from 10.4.2008 to 13.6.2008. Since the opposite party has failed to refund the premium amount from 10.4.2008 to 13.6.2008, it amounts to deficiency in service on their part.
11.

As a result of the above discussion, the complaint is accepted and the opposite party is directed to refund the premium amount for the period 10.4.2008 to 13.6.2008 to the complainant. Litigation expenses are assessed at Rs. 500/- to be paid by the opposite party to the complainant 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 room.

P.V.Valsalan,

Puthanveedu,

P.O.Pappinissery Complainant








M/s.Oriental Insurance Company,

P.B.No.437,

South Bazar, Kannur 2. Opposite party



O R D E R






This is a complaint filed under section12 of consumer protection act for an order directing the opposite party to pay an amount of Rs.75, 000/- with interest, compensation and cost.

The case of the complainant in brief is as follows: The complainant is a policy holder for the period from 26.8.02 to 25.8.03 and renewed twice from26.8.03 to 25.8.05. Complainant sustained injury on 10.3.03 due to accident fall. He was then taken to ESI dispensary at Pappinisseri. After two days he was admitted in Thottada ESI Hospital and treated there till 26.3.03. Thereafter, the complainant was referred to Head quarters Hospital, Kannur. Complainant was given Physiotherapy also from the District Hospital. Since there was no relief complainant was taken to Kozhikode Medical College on 29.7.2003 for treatment. The complainant, as an insured person under the individual personal accident policy entitled to get insured sum. The matter was informed to the opposite party through the Agent and also by a written letter dt.10.3.03 and 15.7.2003.


Subsequently when he contacted opposite party he was advised that the claim form can be filed after the treatment. Since there was no reply to his letter, the complainant sent a letter again on 15.7.03 requesting to send claim form. But there was no reply. Another letter also send on 18.11.04 and finally sent a lawyer notice on 29.1.2005 for which opposite party sent reply giving false allegations denying the claim. The complainant is entitled to get a mediclaim benefit for an amount of Rs.75, 000/- on the basis of the accident policy. Hence this complaint.

Pursuant to the notice the opposite party entered appearance and filed version denying the main allegations. The brief contentions of the opposite party are as follows: complainant is a policy holder bearing No.488dated 26.8.02 and on expiry two other new policies were issued on 26.8.03 and 26.8.04. The opposite party received intimation on 8.11.04 in respect of an incident alleged to have been taken place on 10.3.03. There was no explanation for the unreasonable delay in submitting the claim. The averment that the delay was occasioned as the complainant was laid up in a bedridden stage is false. Complainant has to give written notice immediately upon the event. The claim made by the complainant is bogus. Even the highly belated claim of notice sent on his b behalf contains any data to suggest that the complainant has sustained any injury that make him eligible for the compensation. The claim is vexatious and frivolous. Hence to dismiss the complaint.

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency in service on the part of opposite party?

2. Whether the complainant is entitled for the remedy as prayed in the complaint?

3. Relief and cost?

The evidence consists of the oral testimony of PW1, DW1, and Ext.A1 to A11and B1 to B3.

Issue Nos. 1 to 3

Admittedly complainant is a policy holder. The case of the complainant is that he has sustained injury due to fall on 10.3.03. He was then taken to ESI Hospital, Thottada and then to Head quarters Hospital, Kannur and thereafter Kozhikode Medical College. Complainant filed chief affidavit in tune with the pleadings. He has stated that he had been in treatment under the doctors of Kozhikode Medical college. It is also stated that his treatment had been continued thereafter from Pariyaram Medical College. He is not fully recovered even now. Complainant gives evidence by chief affidavit that he had intimated the accident by way of a letter dt. 18.3.03 but there was no reply. Then again send letter dt. 15.7.03 requesting to send him a claim form. Since no reply was sent complainant contacted the opposite party through telephone and opposite party told him that he can apply after the treatment is over. Meanwhile complainant renewed his policy twice.


Complainant states in chief affidavit that because of financial stringency due to continuous treatment he was compelled to send letter on 18.11.04. It was not replied by oppoiste party. So complainant sent lawyer notice dt.29.1.05. Complainant in his chief affidavit says that it was for getting his Insurance claim that he contacted opposite party through letters dt.18.3.03 and 15.7.03 apart from several telephone calls. But opposite party consoled the complainant telling him not to hurry but to submit the claim form after the treatment is over. Complainant alleged that opposite party dealt the matter in this manner only to deny the insurance claim for which complainant is legally entitled.

Opposite party on the other hand filed affidavit in tune with their contentions stating that complainant is a policy holder and he has renewed his policy on 26.8.03 and 26.8.04. But complainant had not disclosed anything about the incident or his difficulties. Opposite party contended that the incident was communicated only when the lawyer notice dt.18.11.04 was sent to opposite party. Opposite party stated the same in the chief affidavit also. Opposite party contended that the case of the complainant is totally false.


He has not stated that the letter send on 15.7.03 was one registered. But he has produced Ext.A3 acknowledgement bearing the date 16.7.03 on the seal of the opposite party. Ext.A4 a postal receipt which carries no date also produced. The letter sent on 18.1.04 was the letter mentioned as registered letter in the complaint. The copy of the letter marked as Ext.A5.The original has been produced by opposite party. This letter is relevant since it is the first admitted document of intimation of the alleged incident.


There is no wisper about the letter of 18.3.03 and that of the letter 15.7.03 .What he has written with respect to the intimation of incident is thus: “As I was in a bedridden stage it was not possible for me to appear before you in order to file claim form. So the matter was intimated to you through the agent and over phone and I was asked to file claim form after the treatment. Meanwhile, the policy issued to me was renewed twice” The letter of 18.3.03 and 15.7.03 has not been mentioned anywhere in the letter. And there was also no mention about intimation of letter whatever maybe, alleged to be sent on 10.3.03, in the complaint. Ext.A7 is the lawyer notice sent on 29.1.05. This is the valid document wherein the foundation of the case of the complainant laid down.


The case of the complainant therein is nothing but mere repletion of what has been written in Ext.A5 above mention letter of 18.11.04. It is thus: As my client was seriously laid up it was not possible for him to be present before you in order to file claim form. So the matter was intimated to you through the agent and over phone and my client was told to file claim form after the treatment. So he addressed to you on 18.11.04for getting the claim form so as to make a claim.” It is very clear that as per this notice complainant addressed to opposite party on 18.11.04 for getting the claim form. No other letter of intimation before 18.11.04 has been mentioned in Ext.A7. If there was any such communication earlier to 18.11.04 that would have been found place in ext.A7. No wisper about any such letters of communication anywhere in the notice. Ext.A8 is the reply sent by opposite party to the said lawyer notice sent by the complainant.


It has written that the insured is under legal obligation to give a written notice with full particulars, immediately upon happening of any event which may give rise to a claim under this policy. Ex.B1 shows that it is the first condition. Complainant has not produced copy of any letter sent to opposite party prior to 18.11.04. Ext.A8 specifically pointed out that the intimation with respect to the alleged accidental fall was intimated only on 8.11.2004, in the complaint it has alleged that intimation sent on 10.3.03 and 15.7.03. It is seen that the date 10.3.03 has been added by way of correction resulting in confusion with respect to the date.


That confusion could have been avoided if the copy of the letter has been produced which complainant failed to do. Complainant in the first time stated in the affidavit, that he has sent a letter of intimation on 18.3.03. But in this case also copy of the letter has not been produced. Neither the registered letter sent on 18.11.2004 and lawyer notice Ext.A8 nor the complainant mentioned about the letter of information allegedly sent on 18.3.03.Such a letter if sent, it is difficult to understand, why the complainant ignored to mention about these letter in Ext.A5, A7and in complaint. The absence of earliest communication stands as the basic reason for rejecting the claim. Under such circumstances the case, in any way cannot be determined basing only on Ext.A2 & A3.

Moreover the complainant renewed the policy twice after the alleged incident. These new policies were issued on 26.8.03 and 26.8.04. It can be seen that Ext.A5 registered letter and Ext.A7 lawyer notice has been sent only after these renewal. Herein also the crucial point arose whether or not the complainant informed the opposite party at this juncture about the incident and his health condition. Complainant has no case that, on both occasion, informed the opposite party anything neither about the incident nor of his heath condition.


“Complainant could very well inform the existing health condition and the alleged incident to the opposite party which, he even legally bound to do at the time of removing the policy. This is a very material question which the complainant ignored to answer. In the usual course it has been expected to be informed. Complainant in anyway could not succeeded in establishing his case. The available evidence does not permit to hold that there is deficiency in service on the part of opposite party in rejecting the claim of the complainant.

In the light of the above discussion and perusal of the documents on record we hold that the complainant failed to prove his case, establishing deficiency of service on the part of opposite party. The available evidence does not show reasons to reject the repudiation of claim by the opposite party. The issues 1 to 3 found against the complainant.

In the result, the complaint is dismissed. No order as to costs.

K.P.Sajith,

Keloth Puthiyapurayil,

Post Kolachery, KannurDist. Complainant





1. The Dealer,

ESSCO Automobiles,

Makkani, Kannur 2

2. The Dealer,

ESSCO Automobiles,

Cheruvannur, Calicut. Opposite parties




3. M/s.Oriental Insurance co. Ltd.,

C.K.H.Building,

Thazhepalam, Tirur. 676101





O R D E R




This is a complaint filed under section12 of consumer protection act for an order directing the opposite parties to pay an amount of total sum of Rs.30, 000/- together with the cost of these proceedings.

The brief case of the complainant is as follow: complainant purchased an ambassador car KL.13 P.5179 from 1st opposite party on 5.1.06, 2nd opposite party is the dealer. Complainant had taken the extended warranty in addition to the warranty on 5.1.06. On 5.6.07, when the vehicle traveling with the passengers reached at Kozhikode, the crank shaft of the car has broken. The passengers were compelled to get down. The extended warranty of the car was valid up to 4.1.2008. On 6.6.2007 complainant approached 1st opposite party and demanded to replace the crank shaft as per the extended warranty. The 1st opposite party told complainant that for the extended warranty there is tie up with insurance company and the complainant should pay the replacing charges and thereafter it should be reimbursed to the complainant from the insurance company.


So the complainant paid Rs.15, 132.95 to replace crank shaft, Complainant also paid Rs.5000/- for towing the car from Kozhikode to Kannur. When the complainant approached 1st opposite party to reimburse the amount 1st opposite party stated that he is not coming under the purview of extended warranty and the amount cannot be reimbursed. Complainant was cheated by opposite party and there by suffered for financial and mental agony which is estimated to an amount of Rs.30, 000/- on 7/7/07. Complainant issued lawyer notice demanding an amount of Rs.30, 000/- as compensation. 2nd opposite party replied with false contentions. Hence this complaint.

Pursuant to the notice opposite parties 1, 2 and 3 filed version. Opposite parties 2 & 3 filed version together contending that the special contingency insurance (extended warranty) was issued by M/s Oriental Insurance co. Ltd., No warranty had even issued by opposite parties 1 and 2 and complainant had not paid any amount to these opposite parties for issuing the extended warranty. The premium for the extended warranty was paid by the complainant to M/s. Oriental Insurance co. Ltd., and the extended warranty was issued by the above said company. Hence these opposite parties are not liable to pay any amount as compensation to the complainant. It is true that 1st opposite party supplied an Ambassador car through 2nd opposite party. It is not correct to say that the complainant approached the 1st opposite party on 6.6.07 and demanded to replace crank shaft as per the extended warranty.


The car was brought to work shop on 11.6.2007.Complainant was informed that he should pay the repair charges and thereafter it should b e reimbursed to the complainant by the insurance company. The complainant had paid only 12,243/- to 1st opposite party. The complainant is bound to prove that he had spent Rs.5, 000/- for towing the vehicle to Kannur. The 1st opposite party had informed complainant to approach M/s. Oriental Insurance co. Ltd. to get his extended warranty claim settled\. There is no deficiency of service on the part of opposite parties 1 and2. Insurance company alone is liable to settle the case and to pay the compensation. Hence to dismiss the complaint.

3rd opposite party filed version separately contending that they could not find any such extended warranty in favour of the complainant for his alleged car KL.13/P-5179. The complainant has not furnished any particulars regarding the policy. Hence this opposite party is not liable to provide any relief. 3rd opposite party subsequently filed additional version admitting that the vehicle was insured with the opposite party for the period from 6.1.2004 to 5.1.2008 as special contingency insurance as extended warranty for 1 year after Main warranty expires. The policy was issued from Tirur Branch. The complainant neither communicated the alleged Mechanical failure nor lodged any claim. Hence there is no deficiency in service on the part of this opposite party.

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite parties?

2. Whether the complainant is entitled for any remedy as prayed in the

Complaint?

3. Relief and cost.

The evidence consists of oral testimony of PW1, DW1 and documents Exts.A1 to A11 and B1 marked.

Issue Nos.1 to 3

Admittedly complainant purchased an Ambassador car Kl.13P.5179 from 1st opposite party and the same was supplied through the 2nd opposite party. The case of the complainant is that he had taken the extended warranty on 5.1.2006 and it was valid up to 4.1.2008. The crank shaft of the vehicle was happened to be broken on 5.6.2007 at Kozhikode and on 6.6.2007 complainant demanded 1st opposite party to replace the crank shaft as per extended warranty. 1st opposite party told him that for the extended warranty they have tie up with insurance company and that the complainant should make payment if the replacing charges of the defective pars and the same would be reimbursed from the insurance company. Accordingly complainant paid Rs.15, 132/- for replacement of crank shaft.


He had also paid Rs.5000/- for towing the car from Kozhikode to Kannur. But when he approached the 1sty opposite party for reimbursement 1st opposite party stated that he will not come under the purview of extended warranty. Opposite parties 12 and 2 contended that they have not issued any warranty or extended warranty. The premium for extended warranty was paid to3rd opposite party and the extended warranty was issued by Insurance Company. Supplemental 3rd opposite party contended that they could not find such extended warranty but not specifically denied that they did not issue any such extended warranty.


It can only be considered as an admission. Anyway 3rd opposite party subsequently admitted by filing additional version that the vehicle was insured on 5.6.2007 which is within the purview of insurance. Hence exempting the technicalities it is a definite case that the company is liable to reimburse the amount. Complainant had been attempted to get the amount reimbursed from the very outset. Complainant sent lawyer notice on 7.7.2007. Ext.A8 lawyer notice reveals that complainant had tried very much to get the amount. Opposite parties 1 and 2 failed to advice complainant in proper manner.


Anyway it has come in evidence that the complainant has renewed the policy with the Oriental Insurance Company for the Ambassador car KL.13P.5179 denying the claim amount on the ground of technicalities is quite unfair on the part of Oriental Insurance Company since the alleged incident happened during the period of policy. The premium amount is already in the pocket of Insurance Company. Question of technicalities did not arise at the time of receiving the premium amount. The receiving branch raised no objection in receiving the amount on behalf of the company. The Insurance Company depending merely upon the technicalities to deny the claim amount. 3rd opposite party is liable to reimburse the amount.

Ext.A4 the details of defects issued by 1st opposite party shows that crank shaft were broken at Calicut. Ext.A5 shows the price of spare pars as Rs.9200/-. Ext.A6 reveals that the total expense for the repair of the vehicle is Rs.15132/-. 3rd opposite party did not questioned the estimate amount in Ext.A6, issued by1st opposite party. Since the vehicle is a new one 3rd opposite party is liable to reimburse the entire amount. The evidence shows that the incident had taken place at Calicut and the vehicle is repaired at Kannur. There is no doubt that without expense the vehicle cannot be shifted to Kannur, which is more than 100 KM away from Calicut. But complainant has not produced any evidence to that affect. Hence it can be4 assumed that a minimum Rs.2000/- is required to take the vehicle to Kannur.

In the light of above discussion complainant is entitled to get an amount of Rs.17, 000/- as claim amount and a sum of Rs.5000/- as compensation together with Rs.1000/- as cost of these proceedings. Issues 1 to 3 are found in favour of complainant.

In the result, the complaint is allowed directing the 3rd opposite party to pay an amount of Rs.17000/- (Seventeen thousand only) as claim amount and a sum of Rs.5000/- (Rupees Five thousand only) as compensation together with Rs.1000/-(Rupees One thousand only) as cost of this proceedings within one month from the date of receiving this order, failing which the complainant is allowed to execute the order against the 3rd opposite party.

B.V.Mohan Raj S/o. K.Venkatappa

R/a. Manjunatha Nilaya, 3rd Cross, Complainant

A****ha Rao layout,

Shivamogga city







AND



1. The Divisional Manager,

Oriental insurance Co. Ltd,

D.O.No.3, Chennai, No.7,

Uthamar Gandhi Salai, Opposite Parties

2nd Floor, Rosy Towers,

Nungambakkam, Chennai-34

2. The Branch Manager,

Oriental insurance Co, Ltd,

Vinayaka complex, 1st cross,

Garden Area, Shivamogga-01

3. Oriental Insurance Co. Ltd,

Presented by the Manager,

Ashoka Road, Tumkur





ORDER



This is a complaint filed Under Section 12 of the Consumer Protection Act, 1986 (hereinafter called as Act for short)



2. This compliant was initially filed before the District Consumer Disputes Redressal Forum, Shimoga and came to be represented before this forum as per the orders of the said forum dated 26th May 2009.



3. Through this complaint, the complainant prays for an order against the Opposite Parties (hereinafter called as the OPs for short) to pay Rs.1,81,255/- being the amount spent by him for repair of the bus bearing Reg.No.KA-14-A-0133 which was insured under policy No.411300/31/2007/5801 alongwith interest at 18% per annum and Rs.1,00,000/- towards damages for the hardship, inconvenience and agony.



4. The facts given rise to institute the complaint may be summarized as thus:

It is contended that, he is the proprietor of the passenger bus bearing Reg.No.KA-14-A-0113. The said bus was insured with the 1st OP under policy No.411300/31/2007/5601 and valid from 5-6-2006 to 4-6-2007, it covered all the risks.



5. It is further contended that, on 26-4-2007 the said vehicle met with an accident near Tavarakere village, Sira taluk (NH-4) and sustained the following damages; 1. Front left hand side head light, 2. Wind screen glass broke, 3. Font left hand side shape damages, 4. Radiator, Bonnet and Dash board damaged 5. Front left hand side seats 6. Left hand side body and platform damaged.



6. It is further contended that, the above said accident and damages caused was brought to the notice of the OPs on 27-4-2007, 27-5-2007, 8-8-2007, 25-10-2007 and 27-2-2008. The complainant had written letters and requested the OPs to pay the damages suffered by him on account of the accident.



7. It is further contended that, the complainant is running buses for his livelihood and earning income from the buses. He had incurred huge loss and spent of Rs.1,81,255/- to get the damaged bus repaired. For the purpose of repair, it was towed to the garage for about 15 days. It is further contended that, as on the date of accident, the said bus was covered with a valid insurance policy issued by the OP and it was in force. Hence, the complainant is entitled for the amount he spent for repairs and also for other damages. Inspite of repeated requests and demands, the OPs have not complied with the same and committed deficiency in service. On 20-11-2008, the complainant got issued a legal notice to the OPs and the said notice was served on the OPs. The 2nd OP has issued untenable replies on 1-12-2008 and 24-12-2008. Thus, the OPs have utterly failed to discharge their obligation under the valid policy. Hence, this complaint.



8. The OPs who have been notified of the complaint entered appearance through their counsel. However, they adopted the objections filed before the District Consumer Forum, Shimoga in complaint No.23/2009 on the file of said forum.



9. The gist of the version is as follows:

In the version filed by the OPs, it is contended that, the compliant field before the District Consumer Forum, Shimoga was not sustainable as that forum had no jurisdiction to try this case. It is contended that, the 1st OP is from Chennai, the policy holder is a resident of Bangalore, having his business place at Chikkamangalore. It is further contended that, the accident had taken place at NH-4 near Tavarakere, Gowdagere hobli, Sira taluk, Tumkur district. It is the contention of the OPs that, 2nd OP is not related to the transaction or the case on hand. Hence, the complaint is liable to be dismissed.



10. It is further contended that, the alleged accident had not taken place at all to the vehicle bearing Reg.No.KA-14-A-0133 which was insured with the 1st OP and on this score the complaint is liable to be dismissed as there is no cause of action.



11. These OPs while emphatically denying all the complaint averments as false and untenable interalia, pleaded that, the complainant failed to furnish the relevant documents like photographs, spot survey, final survey report, Motor vehicles inspectors report, accident photos, KSRTC Trip sheet, contractual agreement with the KSRTC, route permit and etc. It is further submitted that, the complainant has not informed the OPs about the alleged accident and thereby has avoided the OPs to assess the actual loss, damages and etc, the notice issued at the belated stage i.e., after a lapse of almost one and a half year was only to achive his illegal claim. In reply, the OPs have made it clear that no intimation or correspondence were made by the complainant.


As a consequence, they could not engage or appoint a competent surveyor to assess the actual loss or damage caused to the vehicle, or to inspect the damaged vehicle in the alleged accident. The complainant has evaded the OPs to conduct a survey, to assess the actual loss, spoiled all the available information only with an intention to make profit out of the alleged accident.



12. It is further submitted that, the driver on the wheel on the alleged date of accident did not possess valid and effective driving licence to drive the class of vehicle involved in the alleged accident. Thus there is a violation of the conditions of the policy. Without prejudice to the contentions taken above, the claim is exorbitant, excessive and arbitrary and it is prepared vaguely. The liability if any of these are subject to the terms and conditions of the policy. As it will only to indemnify the insured to the extent of repair and replacement subject to depreciation etc., provided the policy is in force and the insured has not violated or committed breach of policy conditions. Accordingly, they pray for dismissal of the complaint with exemplary costs.



13. In support of the case, the complainant and OPs have relied upon the affidavits and documents produced before the District Consumer Forum, Shimoga. The documents produced by the complainant came to be marked as Ex.P-1 to P-38. We have heard the learned counsels appearing for the parties. We have also examined the material available on records



14. The questions that arise for our considerations are:

1) Is there any deficiency of service by the OPs?

2) Is the complainant entitled to the reliefs as prayed for OR what reliefs?



15. Our findings on the above question are here under:

Point No.1: Negative

Point No.2: As per order



REASONS



16. From the material placed on records, it is seen that, the complainant being an owner of the vehicle in question was plying it on road on behalf of the North Western Karnataka Road Transport Corporation (herein after called as NWKRTC for short) as private NWKRTC operators by virtue of the agreement between NWKRTC and the complainant dated 6-10-2004. Ex.P-28 establishes this fact. It is the contention of the complainant that, while operating the vehicle on road, it met with an accident on 26-4-2007 near Tavarekere of Tumkur district. This fact is also proved through Ex.P-12 to Ex.P-15. In so far as, the insurance coverage of the vehicle is concerned, there is no dispute and it is established through Ex.P-16.



17. What the complainant contended was that, after the accident, though he made correspondence with the OPs, they did not settle the claim. Per-contra, it is contended by the OPs that, the necessary documents or particulars like photographs, spot survey, final survey report, Motor vehicles inspectors report, accident photos, KSRTC Trip sheet, contractual agreement with the KSRTC, route permit and the driving licence of the driver were not made available to assess the loss. It is pertinent note that, in the xerox copy of the claim form at Ex.P-18, the relevant columns relating “driving licence number” and “classes of the vehicle authorised to drive” are left blank. Before this forum also the driving licence of the driver Riyaz Ahammed who drow the vehicle at the time is made available.


Therefore, in our view, the OPs were justified in not settling the claim of the complainant. However, the claim of the complainant should not be thrown out solely on the ground that, he has failed to produce the driving licence (DL) of driver. The principles of the natural justice demands an opportunity to the complainant to the produce the same before the OPs for seeking suitable redressal. Accordingly, we hold that, though there is no deficiency in service committed by the OPs as on the date. However, in the fitness of the circumstances, it is just and proper to direct the complainant to submit the relevant document papers and particulars to ascertain the actual loss to him by the OPs.



18. Being that opinion, we proceed to pass the following.



ORDER



The complaint is disposed off with a direction to the complainant to submit all necessary document particulars like photographs, spot survey, final survey report, Motor vehicles inspectors report, accident photos, KSRTC Trip sheet, contractual agreement with the KSRTC, route permit, driving licence etc., within 30 days from this order to the OPs to decide his claim without any delay. In the event of submission of necessary document papers and particulars, the OPs shall scrutinize and process the same and dispose off his claim in accordance with law within 15 days of receipt of such particulars. Under the circumstance of cases, we direct the parties to bear their own costs of this complaint.

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.