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.

V. S. Ajaya Kumar
...........Appellant(s)

Vs.

The Oriental Insurance Co Ltd
...........Respondent(s)





ORDER





The case of complainant is that the complainant was a policy holder of respondent vide policy No.470/2000. On 23.2.2000 he was admitted in Aswini Hospital for liver treatment and discharged on 24.2.2000. Before that the treatment was commenced on 20.1.2000. Subsequently he had applied for the insurance claim with all relevant documents, but was rejected by the Company. The reason stated for rejection of the claim is incorrect. The complainant had produced medical bills of Rs.8175.34 to the company. On 9.2.2001 a lawyer notice was issued. The rejection of claim shows deficiency in service on the part of respondent. Hence this complaint.

2. The counter is as follows: This respondent admits that the complainant has medical insurance policy subject to the terms and conditions. The period of the policy is from 22.2.1999 to 21.9.2000. The complainant has suppressed the fact that he was suffering from the alleged illness long before he had taken the policy. Nowhere in the complaint the complainant has stated the name of the hospital and the name of the doctor who treated him. The medical expenses shown are not correct. On getting the said claim this respondent adopted to regular procedures of investigation. According to the investigation report and the documents collected by this respondent the complainant was suffering from some medical problems connected with liver from childhood itself. He was under treatment at the Guruvayur Devaswom Medical Centre before taking the policy for liver complaints.


The test report dated 18.12.99 obtained by the complainant from Sudharma Laboratory showing Serum Bilirubin level at 1 mg% as against the normal value of less than 1 mg%. The Serum GPT at 74 as against the normal value of upto 42 proves this. As per Dr. P.V. Antony’s report the complainant’s disease was pre-existing and was using medicine for a long period. These are the reasons for rejecting the claim. The complainant has suppressed these material facts. Hence the complaint is bad for suppression of material facts. The claim of complainant is not entertainable as per the policy exclusion No.4.1. The complainant has no cause of action against this respondent. Hence dismiss the complaint.

3. The points for consideration are:
(1) Is there any deficiency in service on the part of respondent?
(2) If so, reliefs and costs.

4. The evidence consists of Exts. R1 to R17, Ext. X-1 and X-2 series and the statement of RWs-1 and 2.

5. Points-1 & 2: The case of complainant is that he was a policy holder of respondent vide policy No.470/2000 and he was admitted in Aswini Hospital on 23.2.2000 for liver illness and treated there and discharged on 24.2.2000. He had incurred Rs.8175.34 as medical expenses and he applied to the Company for medical reimbursement benefit. But was rejected by the Company and the reasons stated is not correct. So he filed this complaint to get the treatment expenses and compensation.

6. In the counter the respondent company stated that the claim of complainant is not entertainable as per the policy exclusion clause No.4.1 which says “such diseases which have been in existence at the time of proposing this insurance are exempted from the payment of policy benefit. So the claim of the complainant was rejected by the respondent by stating pre-existence of disease.

7. According to the complainant, he was treated for one day in the Aswini Hospital for liver treatment. The period of treatment was from 23.2.2000 to 24.2.2000 and was within the coverage of policy. The period of the policy as admitted by the respondent and was from 22.9.1999 to 21.9.2000. There is no dispute regarding this aspect. Ext. X-1 is biochemistry report from Sudharma Laboratory. The name of patient stated as Ajaykumar. The test report dated 18.12.98 shows Serum Bilirubin level and Serum GPT etc. as above the normal value. So according to the respondent the complainant was suffering from liver complaint before the policy. The complainant challenged this Ext. X-1 document and the Doctor who has issued this certificate was examined as RW1 and stated that what is stated in her certificate is true.


She deposed that Serum GPT is more than the normal range and Serum Bilirubin is also more than the normal level. During cross-examination she was asked about the patient’s name and she said that as per Ext. X-1 report it cannot be said “Ajaykumar stated in the report and the complainant are the same”. RW1 the doctor further stated that “(X-1 (in Malayalam words) .” In Ext. X-1 the name of patient simply stated as Ajaykumar. There is no address and not even initial at all. Since there is dispute regarding the genuineness we cannot rely fully the document of Ext. X-1. It is a doubtful document and cannot say that the complainant and the Ajaykumar stated in Ext. X-1 are same.

8. Ext. R6 is a certificate issued by RW2 and stated that complainant was treated for chronic Hepatitis. Fatty liver. He also certified that he considers it is a pre-existing disease. The doctor is examined as RW2 and during chief examination he confirmed the facts stated in Ext. R6 certificate. During cross-examination the Counsel for complainant asked about the records verified by him for issuing Ext. R6 certificate. There are no such details. RW2 simply stated that Mr. Ajaykumar Mediclaim Policy No.470/2000 treated for chronic hepatitis fatty liver. According to him he considers it is a pre-existing disease.


The certificate expresses his opinion only and it is not an authoritative certificate to prove that the complainant was suffering from liver disease. He has no information about the commencement of the disease. The records relied by him to arrive at such a conclusion are not noted. He admitted during examination that he did not see the patient directly and did not treat him.


He simply issued this certificate. According to us only to support the respondent company he issued such kind of certificate without any records. Because in the certificate he stated that “in my opinion it comes under Exclusion No.4.1 and it is not advisable to get the claim.” He deposed that he is not a panel doctor of the company. It is not at all expected from doctors who are not in the panel of company to state these kinds of comments in the certificate. So we are not in a position to accept the contents of Ext. R6.

9. Another point stated by the respondent is that the complainant was under treatment at the Guruvayur Devaswom Medical Centre before taking the policy. But there is no document produced from the Devaswom Hospital to prove this. Ext. R17 report of Investigator shows that the investigator had consulted doctors of Guruvayur Devaswom Medical Centre. In the report it is stated that the investigator made request for details of the treatment undergone by the complainant and were not obtained.


Anyway no documents submitted by the investigator to the company to show that the complainant had prior medical problems relating to liver. So the rejection of claim of the complainant by the respondent shows deficiency in service and he is entitled to get the medical expenses incurred to him. The medical expenses claimed by the complainant are Rs.8175.34. Ext. X-2 series contains the details of medical bills of the same amount and the complainant is entitled to get the amount. Since there is rejection of a genuine claim on the part of respondent, the complainant is entitled to get compensation also.

10. In the result, the complaint is allowed and the respondent is directed to pay Rs.8175.34 (Rupees eight thousand one hundred and seventy five and paise thirty four) as medical expenses and Rs.3000/- (Rupees three thousand only) as compensation with cost Rs.500/- (Rupees five hundred only) to the complainant within a month. If the amount is not paid within the prescribed period the complainant is entitled to get interest for the amount of Rs.8175.34 at the rate of 12% till realisation.

Shri Chaman Lal S/O Shri Sohan Lal,

Resident of Village Jubbar, P.O. Barog,

Tehsil and District Solan, H.P.



… Complainant.

Versus





The Oriental Insurance Company Ltd.,

The Mall Solan,

Through its Branch Manager.



…Opposite Party








O R D E R:




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


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

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

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

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

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

6. The OP-Company, has not, adduced any proof qua the fact that the overloading of the vehicle, was the prima dona or the preponderant cause of the vehicle having met with an accident, especially when the mandate of law as laid down in Latest Himachal Law Judgment 2009 (HP) 422, envisages that, in, case the insurer seeks to exculpate its liability on the plea of the provisions of the insurance cover having come to be infracted inasmuch, as, the vehicle insured at the relevant time was carrying passengers beyond the permissible limits, the breach of the said salient canon of the insurance cover, is, not only required to be contended, but, is, also required to be proved to be the prima dona or preponderant cause of the accident.


Given the parameters, of, the judgment as reported in HLJ 2009 (HP)422, the, OP-Company, hence has failed to accomplish the mandate of the parameters as enshrined in the afore-mentioned judgment inasmuch, as, when it has failed, to, adduce evidence both satisfactory and cogent that the carrying of passengers beyond the permissible limit in the vehicle at the relevant time, was the prima-dona or preponderant cause of the accident, as, a natural corollary, then, for lack of such proof, the OP-Company, cannot, hence, seek to, exculpate its liability to defray to the complainant, the amount of the sum insured.

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

8. In the light of the above, the complaint is allowed and OP-Company is hereby directed to indemnify the complainant, on net of salvage basis to the extent of Rs.3,49,500/- along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 20.07.2007, till making full payment of the amount aforesaid. In addition to this, the OP-Company is also held liable to pay to the complainant, the litigation cost, which is quantified at Rs.3000/-. These payments shall be made to the complainant, by the OP-Company, within a period of forty five days, after the date of receipt of copy of this order. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

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

….Complainant.

Versus

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

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

….Opposite parties.






O R D E R





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

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

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

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

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

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

….Complainant.

Versus



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

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

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



….Opposite parties.




O R D E R








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

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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



…..Complainant.

Versus



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

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

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

…..Opposite parties.








O R D E R









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


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

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

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

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

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

6- Repudiation of claim by opposite party, is based upon report Ex.R2 of Dr. B.C. Singla of Singla Clinic & Clinical Lab., engaged by opposite party, as investigator. He reported in this report that visited CMC & Hospital, Ludhiana, to study record of the patient Mehak Khurana, where she had taken treatment from 1.10.2007 to 6.10.2007, due to Seizure Disorder, Myasthenia Gravis, Global Profound Muscles movements. He reported in report Ex.R2 that Mehak Khurana is the known case Seizure Disorder for the last 6 months.


Earlier on 21.3.2004 to 24.3.2004, had taken treatment for the same disease. Had also taken treatment from K.G. Hospital, Panipat in February, 2004. Again, was admitted in the hospital on 7.11.2005 till 20.11.2005 for the same Seizure Disorder, with problem of brain fever. Again, was admitted in CMC & Hospital, Ludhiana, on 1.10.2007 due to gradual increase, Global Muscular weakness of whole body. She was discharged from the hospital on 6.10.2007. He then opined that the patient had this disease since 2004, which progressively is increasing.

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


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


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

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.

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.

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.

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.

V. S. Ajaya Kumar
...........Appellant(s)

Vs.

The Oriental Insurance Co Ltd
...........Respondent(s)







ORDER




The case of complainant is that the complainant was a policy holder of respondent vide policy No.470/2000. On 23.2.2000 he was admitted in Aswini Hospital for liver treatment and discharged on 24.2.2000. Before that the treatment was commenced on 20.1.2000. Subsequently he had applied for the insurance claim with all relevant documents, but was rejected by the Company. The reason stated for rejection of the claim is incorrect. The complainant had produced medical bills of Rs.8175.34 to the company. On 9.2.2001 a lawyer notice was issued. The rejection of claim shows deficiency in service on the part of respondent. Hence this complaint.

2. The counter is as follows: This respondent admits that the complainant has medical insurance policy subject to the terms and conditions. The period of the policy is from 22.2.1999 to 21.9.2000. The complainant has suppressed the fact that he was suffering from the alleged illness long before he had taken the policy. Nowhere in the complaint the complainant has stated the name of the hospital and the name of the doctor who treated him. The medical expenses shown are not correct. On getting the said claim this respondent adopted to regular procedures of investigation.


According to the investigation report and the documents collected by this respondent the complainant was suffering from some medical problems connected with liver from childhood itself. He was under treatment at the Guruvayur Devaswom Medical Centre before taking the policy for liver complaints. The test report dated 18.12.99 obtained by the complainant from Sudharma Laboratory showing Serum Bilirubin level at 1 mg% as against the normal value of less than 1 mg%. The Serum GPT at 74 as against the normal value of upto 42 proves this.


As per Dr. P.V. Antony’s report the complainant’s disease was pre-existing and was using medicine for a long period. These are the reasons for rejecting the claim. The complainant has suppressed these material facts. Hence the complaint is bad for suppression of material facts. The claim of complainant is not entertainable as per the policy exclusion No.4.1. The complainant has no cause of action against this respondent. Hence dismiss the complaint.

3. The points for consideration are:
(1) Is there any deficiency in service on the part of respondent?
(2) If so, reliefs and costs.

4. The evidence consists of Exts. R1 to R17, Ext. X-1 and X-2 series and the statement of RWs-1 and 2.

5. Points-1 & 2: The case of complainant is that he was a policy holder of respondent vide policy No.470/2000 and he was admitted in Aswini Hospital on 23.2.2000 for liver illness and treated there and discharged on 24.2.2000. He had incurred Rs.8175.34 as medical expenses and he applied to the Company for medical reimbursement benefit. But was rejected by the Company and the reasons stated is not correct. So he filed this complaint to get the treatment expenses and compensation.

6. In the counter the respondent company stated that the claim of complainant is not entertainable as per the policy exclusion clause No.4.1 which says “such diseases which have been in existence at the time of proposing this insurance are exempted from the payment of policy benefit. So the claim of the complainant was rejected by the respondent by stating pre-existence of disease.

7. According to the complainant, he was treated for one day in the Aswini Hospital for liver treatment. The period of treatment was from 23.2.2000 to 24.2.2000 and was within the coverage of policy. The period of the policy as admitted by the respondent and was from 22.9.1999 to 21.9.2000. There is no dispute regarding this aspect. Ext. X-1 is biochemistry report from Sudharma Laboratory.


The name of patient stated as Ajaykumar. The test report dated 18.12.98 shows Serum Bilirubin level and Serum GPT etc. as above the normal value. So according to the respondent the complainant was suffering from liver complaint before the policy. The complainant challenged this Ext. X-1 document and the Doctor who has issued this certificate was examined as RW1 and stated that what is stated in her certificate is true. She deposed that Serum GPT is more than the normal range and Serum Bilirubin is also more than the normal level.


During cross-examination she was asked about the patient’s name and she said that as per Ext. X-1 report it cannot be said “Ajaykumar stated in the report and the complainant are the same”. RW1 the doctor further stated that “(X-1 (in Malayalam words) .” In Ext. X-1 the name of patient simply stated as Ajaykumar. There is no address and not even initial at all. Since there is dispute regarding the genuineness we cannot rely fully the document of Ext. X-1. It is a doubtful document and cannot say that the complainant and the Ajaykumar stated in Ext. X-1 are same.

8. Ext. R6 is a certificate issued by RW2 and stated that complainant was treated for chronic Hepatitis. Fatty liver. He also certified that he considers it is a pre-existing disease. The doctor is examined as RW2 and during chief examination he confirmed the facts stated in Ext. R6 certificate. During cross-examination the Counsel for complainant asked about the records verified by him for issuing Ext. R6 certificate.


There are no such details. RW2 simply stated that Mr. Ajaykumar Mediclaim Policy No.470/2000 treated for chronic hepatitis fatty liver. According to him he considers it is a pre-existing disease. The certificate expresses his opinion only and it is not an authoritative certificate to prove that the complainant was suffering from liver disease. He has no information about the commencement of the disease. The records relied by him to arrive at such a conclusion are not noted. He admitted during examination that he did not see the patient directly and did not treat him.


He simply issued this certificate. According to us only to support the respondent company he issued such kind of certificate without any records. Because in the certificate he stated that “in my opinion it comes under Exclusion No.4.1 and it is not advisable to get the claim.” He deposed that he is not a panel doctor of the company. It is not at all expected from doctors who are not in the panel of company to state these kinds of comments in the certificate. So we are not in a position to accept the contents of Ext. R6.

9. Another point stated by the respondent is that the complainant was under treatment at the Guruvayur Devaswom Medical Centre before taking the policy. But there is no document produced from the Devaswom Hospital to prove this. Ext. R17 report of Investigator shows that the investigator had consulted doctors of Guruvayur Devaswom Medical Centre. In the report it is stated that the investigator made request for details of the treatment undergone by the complainant and were not obtained. Anyway no documents submitted by the investigator to the company to show that the complainant had prior medical problems relating to liver.


So the rejection of claim of the complainant by the respondent shows deficiency in service and he is entitled to get the medical expenses incurred to him. The medical expenses claimed by the complainant are Rs.8175.34. Ext. X-2 series contains the details of medical bills of the same amount and the complainant is entitled to get the amount. Since there is rejection of a genuine claim on the part of respondent, the complainant is entitled to get compensation also.

10. In the result, the complaint is allowed and the respondent is directed to pay Rs.8175.34 (Rupees eight thousand one hundred and seventy five and paise thirty four) as medical expenses and Rs.3000/- (Rupees three thousand only) as compensation with cost Rs.500/- (Rupees five hundred only) to the complainant within a month. If the amount is not paid within the prescribed period the complainant is entitled to get interest for the amount of Rs.8175.34 at the rate of 12% till 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









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.

Makhan Singh son of Sh. Balbir Singh, resident of H.No. 502/2, Sector 45-A, Chandigarh.



….…Complainant



V E R S U S



1] Oriental Insurance Co., SCO No. 45, Sector 20-C, Chandigarh.



2] Oriental Insurance Co. (Regional Office), SCO No. 48-49, Sector 17-A, Chandigarh.



3] Oriental Insurance Co. Oriental House P. Box No. 7037, A-25/27, Asif Ali Road, New Delhi – 110002.



.…..Opposite Parties










Concisely put, Makhan Singh – Complainant got his Innova Car No. CH-02-2488 insured with the OP vide Policy Annexure A-2, which was valid from 21.3.08 to 20.3.09. Unfortunately, the said car met with an accident on 22.10.08 at Thanesar and was badly damaged.


Accordingly, an FIR No. 318, dated 22.10.08 was registered at Police Station Thanesar, District Kurukshetra. Upon intimation, OP deputed their Surveyor, who inspected the vehicle and found that there was total loss to the vehicle. Accordingly, the OP agreed to pay the assessed amount of Rs.5,70,000/- which was outstanding loan towards the vehicle, to the concerned Bank within a few days and had also agreed to pay Rs.3,25,000/- to the Complainant to settle the claim on cash loss basis. When nothing was done by the OPs a legal notice dated 8.4.2009 was served upon them, but all in vain. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2] Notice of the complaint was sent to OPs seeking their version of the case.

3] OPs filed reply, interalia, admitting the factual matrix of the case. It was pleaded that the said car was insured with them for a total sum of Rs.7,19,530/-, for period 21.3.2008 to 20.3.2009. One person was killed in the said accident. The car was impounded by the Police against registration of FIR No. 318, dated 22.10.2008. The Complainant got the car released on Supardari. Claim intimation was received by the OPs on 31.10.2008. Accordingly, OPs deputed investigator and Surveyor to examine the accident and to access the loss.


Er. G.S. Riar submitted his Survey Report dated 15.01.09 (Annexure R-1) with the OPs, wherein the vehicle was shown to be total loss and a sum of Rs.5,42,822.84 was assessed as total repair basis loss. However, since the said car was released on Supardari (being case property), it could not have been settled on total loss basis (since the owner of vehicle on Supardari cannot part with the vehicle, until trial pending). In such a situation, the Complainant had only one option i.e. to retain the said car with him and get the claim settled on Cash Loss Basis. The Surveyor got the consent of the insured to settle the claim on cash loss for a total sum of Rs.3,25,000/- (Annexure R-2).


In furtherance thereto, the OPs, sanctioned & settled the claim on cash loss basis in the sum of Rs.3,25,000/- and prepared Cheque dated 15.7.09 and dispatched the same to the address of the Complainant on 17.7.09, by registered post. However, the said envelop was received back with the remarks that house found locked on 18.7.09 and 20.7.09, it had also a stamp of ‘unclaimed’ on the face of the envelop (Annexure R-3). All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

4] Parties led evidence in support of their contentions.

5] We have heard the learned counsel for the parties and have also perused the record.

6] There is no dispute about it that the vehicle was a total loss and this fact was mentioned by the Surveyor in his report and also in the preliminary objection No. 3 of the reply filed by the OPs. The Surveyor submitted his report [Annexure R/1] on 15.01.2009, but even before he submitted the report, he claims to have obtained the consent [Annexure R/2] of the Complainant, agreeing for a compensation of Rs.3,25,000/-. It is not disputed that the vehicle was insured with the OP for Rs.7,19,530/-, as is clear from the Insurance Policy, copy of which is Annexure A-2. It is interesting to note as to how the Complainant was duped to sign the consent letter and to agree for Rs.3,25,000/- for a vehicle, which was insured for Rs.7,19,530/- with the OP.

7] In his survey report [Annexure R/1] the Surveyor under the head “Particulars of Loss/Assessment” has mentioned that the photographs of the damaged vehicle were taken and loss being on higher side was discussed with the competent authority in the R.O. and it was decided to settle the loss on cash loss basis as the vehicle is on supurdari and one person died in the accident. It appears, in view of the said instructions of the competent authority, it was necessary to conceal the material facts to bring down the damage payable to the Complainant.


Further, in the report, the value of the total parts was assessed at Rs.4,97,322.84P. A note was, however, given by the Surveyor that more damage of engine, gear box, ECM and sensors after dismantling the vehicle will be there, the approximate cost of which was assessed by him at Rs.35,000/-. Interestingly, this amount of Rs.35,000/- was not added to the loss of Rs.4,97,322.84P, so that the damage is kept under control. While concluding the report a note (c) has been given that the body shell cost is Rs.3,03,474/- + VAT whereas the local repairer has taken only Rs.2,32,000/-.


The first item under the heading “Assessment” is body shell component, the value of which has been given as Rs.2,32,000/-. It is not clarified as to how this shell could be for Rs.2,32,000/-, when its value is Rs.3,03,474/- + VAT. It appears it was all done while sitting in the office, so that the Complainant is kept in the dark and the damages/compensation is shown at its lowest to persuade the Complainant to accept Rs.3,25,000/- only. Under the head “Cash Loss Basis”, the total parts without Tax, less depreciation is shown to be Rs.4,42,064.75P. However, the parts on repair basis have been assessed to be Rs.4,97,322.84P + Rs.35,000/- as mentioned in the note referred to above.


After adding labour amounting to Rs.45,000/-, the total was calculated to be Rs.4,87,064.75P, then depreciation of 25% amounting to Rs.1,21,766.18P was applied and the total amount payable was brought down to Rs.,3,65,298.56P, out of which the salvage value of Rs.8,500/- was deducted and another Rs.1,000/- was deducted under the Policy Clause and the net payable amount on cash loss basis was mentioned to be Rs.3,55,798.56P. However, even this much was not offered to the Complainant as he had been made to sign Annexure R/2, showing the total amount payable at Rs.3,25,000/-, therefore, this amount was mentioned as Rs.3.25,000/-.


The learned counsel for the Complainant has argued that this was done in order to injure the interest of the Complainant. Otherwise, also the Complainant was never informed about these facts and a gloomy picture was projected to him, so that without getting correct information, he agrees for a lesser amount. It, therefore, does not appeal to reason that if net payable on cash loss basis was worked out to be Rs.3,55,798.56P, why then the Complainant would opt for Rs.3,25,000/-. The facts, therefore, show that the consent (Annexure R/2) was obtained under misrepresentation and fraud. It was never the free consent of the Complainant and, therefore, the compensation could not be decided on its basis. Moreover, it had been obtained even before the Surveyor submitted his report.

8] The report of the Surveyor further shows that the vehicle was badly damaged. The major damage, as mentioned in the Surveyor’s report show that body shell badly pressed dented and torn viz. LH side body, LH apron, cowl top, roof panel, LH ctr pillar, qtr panel, dash panel, bonnet, doors, fenders etc. w/screen glass broken, door glasses LH broken, dash board broken, wiring pressed and cut, chassis frame bent and twisted, door fittings LH bent and broken, radiator and condenser pressed and cut clutch assy and fan bent and broken battery broken, power strg assy bent and twisted, front susp.


LH bent, which shows that the vehicle was turned into scrap that is why its salvage value has been assessed by the Surveyor at Rs.8,500/-. Even if the vehicle being on Supardari could not be transferred, the Complainant could be paid the total insured amount less salvage, but it was not done for the reasons best known to the OPs.

9] Under the head “Summary of Assessment” as mentioned in the Surveyor report, the net payable amount is Rs.5,41,322.85P. We are to add to it Rs.35,000/-, because the damage of engine, gear box, ECM and sensors could be mentioned only after dismantling, as is mentioned under the note at page 5 of the Report [Annexure R/1]. It pushes the values to Rs.5,76,322.85P. The Surveyor has mentioned the value of body shell component to be Rs.2,32,000/-, though according to him, it is available in the market at Rs.3,03,474/- adding Rs.37,934.25P as VAT @12½ %, the value of the body shell arises to Rs.3,41,408.25P.


We are, therefore, to add Rs.3,41,408.25P instead of Rs.2,32,000/- as the value of the body shell component. It will raise the amount of loss to Rs.6,85,731.01P. Deducting Rs.8,500/- as salvage value, the amount payable to the Complainant is Rs.6,77,231/-. Since the amount is above Rs.1,000/-, the Policy Clause would not be applicable and the amount of Rs.1,000/- as deducted by the Surveyor cannot be allowed.

10] The learned counsel for the Complainant is unable to justify as to why the amount of Rs.35,000/- was not added to the damages, though the same was mentioned by the Surveyor under the note at page 5 of his report [Annexure R/1]. It also could not be explained as to why the cost of body shell was not shown as Rs.3,03,474/- + VAT and how it has been mentioned as Rs.2,32,000/- when the body shell is not available at this rate. It, therefore, becomes clear that it was all done to defeat the rights of the Complainant, so that he does not get fair amount of damages from the OP.

11] In view of the above discussion, we are of the opinion that the Complainant is entitled to Rs.6,77,231/- as compensation. If the car cannot be transferred in view of the criminal case, the same would be retained by the Complainant, for which Rs.8,500/- has already been deducted from the admissible amount of compensation.


This amount of Rs.6,77,231/-, along with interest @8% per annum on this amount with effect from 15.2.2009 (one month after the date of Report – Annexure R/1), till the amount is paid to the Complainant, along with litigation costs of Rs.5,000/- shall be paid by the OPs within thirty days from the date of receipt of the copy of the order, failing which they would be liable to pay the same along with penal interest @12% per annum with effect from the date of filing of the complaint i.e. 27.07.2009, till the amount is actually paid to the Complainant.

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




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.