Before the District Consumer Disputes Redressal Forum, Mandi, H.P.



Complaint Case No. 208/2008

Date of Institution 8-8-2008

Date of Decision 7-3-2009





Devender Kumar son of Sh.Ganga Ram resident of village and Post Office Bhararu, Tehsil Joginder Nagar, District Mandi, H.P.



…Complainant





V/S



Oriental Insurance Company Ltd through its Branch Manager Vidya Bhawan Hospital Road, Mandi, District Mandi, H.P.



…..Opposite party











For the complainant Sh. Rajesh Joshi, Advocate

For the opposite party Sh.Dikan Rana, Advocate



Complaint under Section 12 of the

Consumer Protection Act, 1986.



ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he is registered owner of Tata Spacio vehicle beaing No. HP-01M-3786 which was being plied by him as a taxi . The said vehicle was insured by the complainant with the opposite party under insurance policy Number 263200, cover note dated 22-5-2007which was valid with effect from 28-5-2007 to 27-5-2008.During the currency of the insurance policy, said vehicle met with an accident on 25-3-2008 at about 3.00 PM at village Kashar , Tehsil Joginder Nagar and the same was extensively damaged. The complainant immediately informed the opposite party and it appointed surveyor who visited the spot on the same day and advised the complainant to get his vehicle repaired . Rapat of accident was lodged with the Police which is Annexure C-II. The complainant had submitted all the relevant documents including the rapat / report lodged with the police but for some extraneous reasons , the claim did not find favour with the opposite party and the same was repudiated by it vide letter dated 8-7-2008 Annexure C-III on the ground of concealment of the name of the driver. The complainant had adduced the driving license as Annexure C-IV. The complainant had denied any concealment of the facts on his part . It has been averred that the vehicle was repaired and sum of Rs.1,49,043/- was paid by the complainant including the lifting of the vehicle by crane . It has been alleged that the repudiation of the claim on the alleged ground by the opposite party not only amounts to deficiency in service but is also an unfair trade practice and due to this the complainant had suffered mental tension, torture and harassment and a sum of Rs.25,000/- has been claimed as compensation. With these averments , the complainant had sought a direction to the opposite party to pay Rs.1,49,043/- as full and final settlement of the insurance claim with interest at the rate of 12% PA from the date of accident till its payment ,to pay Rs.25,000/- on account of harassment . Apart from this, cost of litigation has also been claimed.

2 The opposite party resisted the complaint by filing reply in which preliminary objections have been raised that

there is breach of terms and conditions of the insurance policy i.e. the vehicle was driven without valid and effective registration certificate, route permit and fitness certificate , the driver was not holding valid driving license at the time of accident and that Sh. Lalit Kumar was driving the vehicle at the time of accident whereas the driving license of Sh Swami Ram was submitted therefore ,the opposite party is not liable to pay the compensation as the complainant had concealed the material facts. On merits . Para No.3 to 8 have been denied being wrong .However, it has been admitted that the opposite party got the loss assessed by Er. M.L. Gupta ,Automobile Engineer ( Surveyor and Loss Assessor ) who has submitted his report on 17-5-2008 and assessed the loss at Rs.88,170.71 paise but the same is not payable as the driver was not holding valid and effective driving license . It has been averred that the matter was further investigated by R.C. Kotwal , Investigator and he had mentioned in his report that Davinder Kumar , Sh. Lalit @ Ajay and Ravi Kumar were travelling in the vehicle and Sh. Ravi Kumar has got fracture on his left leg in this accident and Lalit @ Ajay was driving the vehicle . It has been denied that there is any deficiency in service on the part of the opposite party The opposite party had prayed for dismissal of the complaint .

3. The complainant had filed rejoinder reiterating the averments made in the complaint and controverting the averments made in the reply by the opposite parties.

4. We have heard the ld. counsel for the parties and have also gone through the entire record. From the perusal of the complaint ,reply and accompanying documents it is admitted fact that the vehicle in question was insured with the opposite party and during the currency of the insurance policy, the vehicle met with an accident on 25-3-2008. However, the case of the complainant is that at the time of accident the vehicle was being driven by one Sh.Swami Ram who was having a valid and effective driving license whereas the case of the opposite party is that at the time of the accident, the vehicle was being driven by Sh. Lalit alias Ajay . The claim of the complainant was repudiated by the opposite party on the ground that the driver Sh. Lalit Kumar alias Ajay was not holding a valid and effective driving license . In support of his complaint , the complainant has placed on record affidavit of Sh. Swami Ram, who deposed that he was employed as driver by the complainant and on 25-3-2008 aforesaid vehicle met with an accident as it turned turtle because of sudden application of the brake to avoid an accident with stray cattle. He further deposed that he was holding valid and effective driving license issued by Registering and Licensing Authority Joginder Nagar . The complainant has also placed on record affidavit of one Sh Brahama Nand Sharma who also deposed that at the time of the accident , the vehicle was being driven by Sh. Swami Ram . The complainant has filed his own affidavit regarding the fact that at the time of the accident Sh. Swami Ram was driving the vehicle and he was holding a valid and effective driving license. Copy of driving license Annexure C-IV of Sh.Swami Ram has also been placed on record by the complainant ,the perusal of which shows that it has been issued on 20/7/1990 by RLA Joginder Nagar and is valid for LMV transport w.e.f. 26-5-2005 and for HGV with effect from 7-4-1993. In the daily diary report dated 26-3-2008 Annexure C-II it has been mentioned that the Swami Ram was driving the vehicle at the time of the accident . The onus was upon the opposite party to prove and establish that at the time of the accident Sh.Swami Ram was not driving the vehicle in question and in fact Sh. Lalit Kumar alias Sh.Ajay was driving the vehicle in question. However except for the affidavit of Sh.R.C. Kotwal , Investigator , no other evidence has been filed by the opposite party in this respect.. No Investigation report of Sh.R.C.Kotwal has been adduced in evidence by the opposite party to substantiate its case. Admittedly no statement of any witnesses has been recorded by him during the course of his investigation .There is nothing in the affidavit of investigator from which it can be inferred that at the relevant time Sh.Swami Ram was not driving the vehicle. The opposite party should have filed his investigation report but for the reasons best known to it had withheld the same and as such an adverse inference has to be drawn agaisnt it. Therefore , in the absence of any concrete material it cannot be said that Sh.Swami Ram was not driving the vehicle at the time of the accident. . On the other hand , from the affidavit of the complainant as well as Sh. Swami Ram and independent person Sh. Brahama Nand coupled with daily diary report No.6 dated 26-3-2008, Police Post Bassi under Police Station Joginder Nagar it can safely be held that at the time of the accident the vehicle was being driven by Sh.Swami Ram . The complainant has placed on record driving license of Sh.Swami Ram Annexure C-IV as discussed earlier and there is no evidence to show that his driving license is invalid. Therefore we have no hesitation to conclude that the ground of repudiation of the claim is illegal and not genuine.

5 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the vehicle . The complainant in his complaint had claimed Rs.1,49,043/- as repair charges including towing charges and have also placed on record photocopies of the receipt and bills Annexure C-V-1 to C-V-5 but these documents are only photocopies and even affidavit of the proprietor / workshop owner has not been adduced in evidence and as such these documents cannot be relied in evidence .On the other hand the opposite party has admitted in his reply that net loss sustained by the complainant is Rs.88,170.71 paisa . The opposite party has also adduced in evidence the report of Surveyor in original which corroborates the version of the opposite party that the loss sustained by the complainant on account of accident of the vehicle in question is to the tune of Rs.88,170/-.The report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons. The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kirana Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor dated 17-5-2008 and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle is Rs.88,170/- .

6 The complainant had claimed Rs.25,000/- as compensation on account of mental tension, torture and agony as well as financial loss suffered by him due to deficiency in service on the part of the opposite party. As discussed above the opposite party has been deficient in providing service to the complainant , therefore , he is entitled to some reasonable compensation It would be in the interest of justice if we award a sum of Rs.10,000/- on this score.

7 In the light of above discussion, the complaint is partly allowed and the opposite party is directed to pay Rs.88,170/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization ,to pay Rs.10,000/- as compensation on account of harassment and Rs.2500/- as costs of litigation.



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

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

Announced (Sushil Kukreja) President

C.C. No. 123 /2008


Between


M/s V.S.N. Hatcheries Private Limited, rep., by
its Personal Manager/ Authorized person
Sri R.V.Rao S/o R.Neelakantam, Hindu,
Aged 51 years, Office situate at D.No.4-1667/2,
Durga Nagar Colony, Greamspet, Chittoor Town & Dist.,
… Complainant.


And

1.The Oriental Insurance Co., Ltd.,
rep., by its Divisional Manager,
Divisional Office, APSFC Buildings,
Balaji Colony, Tirupathi Town,
Chittoor District.

2.The Oriental Insurance Company Limited,
Represented by its Branch Manager,
Branch Office situate at P.H.Road
Opp: District Court, Chittoor Town & Dist.,

… Opposite Parties.

This complaint coming on before us for final hearing on 02.03.2009 and upon perusing the complaint, written versions, affidavits, material documents and on hearing Sri V.R.Ramakrishna, counsel for the complainant, and Sri E.Seetharamaiah Chetty counsel for opposite parties 1 & 2 and having stood over till this day for consideration, the Forum made the following:-

ORDER

DELIVERED BY SRI. V. PARTHASARADHI RAO, B.A., L.L.B., President

ON BEHALF OF THE BENCH

This is a complaint filed by the complainant against the opposite parties for recovery an amount of Rs. 2,59,858/- together with interest at 18% p.a and Rs. 25,000/- towards damages for deficiency in service.

The complainant submits that he is running hatchery, in which he engaged workers to operate the machinery for the purpose of his business. In order to safeguard the interest of his workers he availed Workmen’s compensation Policies through the opposite parties and paid a sum of Rs. 32,364/- towards Insurance Premium covering the risk of workers employed in the complainant’s hatchery business. The 1st opposite party is the Divisional Office, 2nd opposite party is the Branch Office. The policy is for the period from 06.05.2006 to 05.05.2007. The complainant submits that during the cover of the policy one of his worker by name G.Venkata Reddy son of Govinda Reddy was working as a Feed Mill Assistant in the Feed Mill Plant. On 16.11.2006 while he was discharging his duties he sustained crush injury to his right hand and the complainant provided Medical treatment to him at C.M.C Hospital, Vellore. Subsequently the insured G.Venkata Reddy filed a claim application before the Commissioner for Workmen’s compensation, Tirupati against the complainant along with the 2nd opposite party in W.C.No. 29/07, after receiving summons from the authority under workmen’s compensation Court, the complainant contested the matter and the 2nd opposite party was set exparte. After due trial the Commissioner for workmen’s compensation, Tirupati passed an award dt. 05.05.2008 against the complainant and the 2nd opposite party jointly and severally for a sum of Rs. 2,30,524/- along with interest at 9% p.a from the date of incident till the date of payment. Accordingly the complainant approached the 2nd opposite party on 16.05.2008 through his letter to satisfy the award of compensation and enclosed copy of judgment in W.C.No. 29/07, the 2nd opposite party through its letter dt. 21.05.2008 requested the complainant to satisfy the award by paying compensation amount with interest of Rs. 2,59,858/- and send the receipt to get reimbursement of the amount. Believing the words of 2nd opposite party, the complainant deposited the said amount before the Commissioner of Labour, Kurnool. But the 2nd opposite party issued a letter dt. 28.07.2008 settling the claim on account of injuries sustained by G.Venkata Reddy for a sum of Rs. 81,731/- only. The complainant again requested the opposite parties to pay the claim amount of Rs. 2,59,858/- paid by him under the award in W.C.No. 29/07. But the opposite parties did not respond the request of the complainant. Hence the complainant filed this complaint for recovery of Rs.2,59,858/- being the awarded amount and Rs. 25,000/- towards damages for deficiency in service. The complaint may be allowed.

The 1st opposite party filed Written Version stating that the Workmen’s compensation Insurance policy is only a policy of reimbursement and in the instant case the complainant approached the opposite parties on 17.07.2008 only. After disposal of the case before the Commissioner for workmen’s compensation and on depositing awarded amount, the opposite party calculated the amount payable as per the terms and conditions of the policy, with reference to Workmen’s Compensation Act and informed the complainant of his readiness to pay Rs. 81,731/- as per the disability certificate. The workmen had 40% disability as per the Workmen’s Compensation Act, the amount payable works out Rs. 1750 X 194.64 X 60/100 X 40/100 = 83,150/- A sum of Rs. 1,419/- towards short period is deducted there from. They offered Rs. 81,731/- to the insured which he is entitled under the policy. Thus there is no deficiency of service on the part of this opposite party and the complaint may be dismissed.

This opposite party submits that the complainant does not satisfy the word consumer as recognized to the C.P.Act and therefore the complaint is liable to be dismissed. The opposite party submits that as per the condition No. 8 of Workmen’s Compensation Policy, if any dispute arises as to the quantum to be paid under the policy, such dispute shall be referred to the decision of a sole Arbitrator to be appointed in writing by the parties. Thus this Forum has no jurisdiction to decide the dispute.

This opposite party further submits that the complainant approached the 2nd opposite party with a copy of judgment of Commissioner for Workmen’s compensation requesting the 2nd opposite party to satisfy the award made in W.C.No. 29/07, since the policy being reimbursement policy, the 2nd opposite party advised the complainant to satisfy the award and then only seek reimbursement. This opposite party offered the above said amount by way of reimbursement as per the calculation made according to the particulars furnished by the complainant and the compensation payable as per the provisions made under Workmen’s Compensation Act, basing on the terms and conditions of the policy. The complainant submitted the Claim Form for settlement of the claim only on 17.07.2008 and the claim was settled and discharge voucher for Rs.81,731/- was sent on 28.07.2008 with a request to return the same duly signed for releasing the cheque and therefore there is no deficiency in service on the part of the opposite parties. The complaint of the complainant is not tenable and the same may be dismissed.

The 2nd opposite party filed Memo adopting the Written Version of 1st opposite party.
The point for consideration are :
1.Whether the complainant is a consumer within the meaning of C.P.Act?

2.Whether the opposite parties 1 & 2 committed deficiency in service ?
3.Whether the complainant is entitled to recover an amount of Rs.2,59,858/- together with interest at 18% p.a from the opposite parties 1 & 2 ?

4.Whether the complainant is entitled to claim an amount of Rs. 25,000/- towards deficiency in service ?

5.To what relief ?

The complainant filed Chief Affidavit of PW-1 and marked Ex.A1 to A16. The opposite parties filed Chief Affidavit of RW-1 and marked Ex.B1.

Point No.1 :-
The learned counsel for the opposite parties contends that the complainant is not a consumer and the complaint may be dismissed. I am unable to agree with the contention of the learned counsel for the opposite parties. The opposite parties admit that the 2nd opposite party issued a Workmen’s Compensation Insurance Policy to the complainant, agreeing to reimburse the compensation awarded by the Commissioner for Workmen’s Compensation, Nellore. The opposite parties have to indemnify the loss sustained by the complainant. Hence the complainant is a consumer within the meaning of Sec 2(1)(d) of C.P.Act.
This point is answered in favour of the complainant.

Points No.2 to 4 :-
The complainant submits that he is running hatchery business and employed workers to operate machinery on 16.11.2006, one of the workers by name G.Venkat Reddy while discharging his duties sustained crush injury on his right hand. He provided medical treatment to him at C.M.C.Hospital, Vellore.

The complainant submits that the said Venkat Reddy filed a claim application before the Commissioner, Workmen’s Compensation at Tirupathi against the complainant along with 2nd opposite party in W.C.No. 29/07. The Commissioner for Workmen’s Compensation, Tirupathi passed an award dt. 05.05.2008 Ex.A4 against the complainant and the 2nd opposite party for Rs. 2,30,524/- together with interest at 9% p.a from the date of incident till the date of payment. After the award was passed he approached 2nd opposite party to satisfy the award of compensation passed in W.C.No. 29/07. The 2nd opposite party requested the complainant to satisfy the award amount and send receipt of the same for reimbursing the amount to him. Accordingly the complainant deposited an amount of Rs. 2,59,858/- before the Deputy Commissioner of Labour, Kurnool and obtained acknowledgement and submitted the same before the opposite parties. But the opposite parties settled the claim only for Rs. 81,731/- instead of Rs.2,59,858/-. Therefore he filed this complaint for recovery of the award amount of Rs. 2,59,858/-.

PW-1 is the Personal Manager of complainant. He stated in similar lines what he averred in his complaint. RW-1 is the Senior Divisional Manager of 1st opposite party, he stated that his company issued Workmen’s Compensation Insurance Policy to the complainant. The endorsement clause in the Policy is that the risk provided under the policy shall not extend to indemnify the insured in respect of any interest of penalty which may be imposed on him, on account of his failure to comply with the requirements laid down under the Workmen’s Compensation Act 1953.

RW-1 further stated that the Workmen’s Compensation Insurance Policy is only a policy of reimbursement and in the instant case the complainant approached their company on 17.07.2008, only after disposal of the case, before the commissioner for Workmen’s Compensation and on depositing awarded amount. The Insurance company calculated the amount payable as per the terms and conditions of the policy with reference to Workmen’s Compensation Act.

RW-1 further stated that as per the Workmen’s Compensation Act the amount payable works out to Rs. 1750 X 194.64 X 60/100 X 40/100 = 83,150/-. A sum of Rs. 1,419/- towards short period is deducted there from. They offered Rs. 81,731/- to the insured and settled the claim.

The learned counsel for the opposite parties contend that the complainant failed to challenge the award which is made against the provisions of Workmen’s Compensation Act. He is not diligent and he is negligent in conducting the matter before the Workmen’s Compensation Tribunal. Therefore he is not entitled to the awarded amount as per the terms and conditions of the Workmen’s Compensation Insurance Policy and as per the disability certificate. The Workman had 40% disability and as per the provisions of Workmen’s Compensation Act the 2nd opposite party settled the claim for Rs. 81,731/- and the complainant is entitled to the said amount only.

I am unable to agree with any of the contentions of the opposite parties. The opposite parties can not say that the complainant approached the Insurance company on 17.07.2008 only. The Commissioner for Workmen’s Compensation, Tirupati. In his Award in W.C.No. 29/07 Ex.A4 observed that the Advocate for 2nd opposite party filed Vakalath in W.C.No. 29/07 and there was no representation and no counter was filed. Hence the opposite party was set exparte on 05.01.2008. Therefore the opposite parties having received notice from the Commissioner for Workmen’s Compensation, Tirupathi had no interest to contest the matter and remained exparte. Then the Commissioner for Workmen’s Compensation, Tirupati after making enquiry passed an award for Rs. 2,30,064/-. The 2nd opposite party admits that on 23.05.2008 the complainant informed the 2nd opposite party with regard to passing of award in W.C.No. 29/07 for Rs. 2,30,064/- and claimed an amount of Rs. 2,59,858/- in his letter Ex.A6. Even then the 2nd opposite party has not challenged the order of the Commissioner for Workmen’s Compensation, Tirupati and remained silent. Now the 2nd opposite party blames the complainant that it has not appealed against the orders passed in W.C.No. 29/07 and is not diligent in prosecuting the case. According to the 2nd opposite party the injured has 40% disability and as per the workmen’s Compensation Act the compensation payable to the complainant is only Rs. 81,731/-. But the award Ex.A4 was passed for Rs. 2,30,524/-. If the 2nd opposite party is not satisfied with the Award passed Commissioner for Workmen’s compensation, Tirupathi in W.C.No. 29/07, it ought to have filed an appeal against the said order. The 2nd opposite party ought to have presented its case before the Commissioner for Workmen’s compensation, Tirupati. Because it is the 2nd opposite party has to indemnify the insured under the policy. When the 2nd opposite party failed to question the order passed in W.C.No. 29/07 it has to blame itself and it has to obey the orders of the Commissioner for Workmen’s Compensation, Tirupati passed in W.C.No. 29/07. This Forum cannot interfere with the orders passed by Commissioner for Workmen’s Compensation, Tirupathi in W.C.No. 29/07. The 2nd opposite party has to pay the entire amount awarded by the Commissioner for workmen’s compensation, Tirupati and the complainant is entitled to claim the same refusing to pay the awarded amount in W.C.No. 29/07 amounts to deficiency in service. Therefore the complainant is entitled to claim Rs. 10,000/- for deficiency in service and the same is granted to the complainant. Hence the complainant is entitled to claim the awarded amount of Rs. 2,30,064/-.
Points 2 to 4 are answered in favour of the complainant.

Point No. 5 :-

In the result the complaint is allowed for awarded amount of Rs. 2,30,064/- (Rupees Two lakhs, thirty thousands and sixty four only) and Rs. 10,000/- (Rupees ten thousands only) towards deficiency in service. The opposite parties are directed to pay the said amount within 6 weeks from the date of order, failing which it carries interest at 9% p.a. Costs of Rs. 1,500/- are allowed.

ORDER By Jayasree Kallat, Member:

Complaint is filed by Smt. Sulochana, widow of Late Mohanan who was a member N.688 of Matsya Gramam, Elathur. On 8-2-03 when the Late Mohanan was fishing in sea in a boat along with his co-workers near Mangalore the boat capsized and all the fishermen were thrown to sea. All the others survived except Mohanan. The complainant and three daughters are the sole surviving legal heirs of the deceased Mohanan. Mohanan was a member under a group accident insurance policy of opposite party-1. Premiums were being paid correctly and the policy was in existence at the time of death of Mohanan. The sum insured was Rs.1,50,000/- the complainant preferred a claim through proper channel for the amount under insurance. The opposite party repudiated the claim informing that the complainant was not eligible for the claim as her husband had died due to heart attack. The postmortem report states that the “ death is due to cardiopulmonary arrest due to vagal inhibition secondary to drowning.” It is clear that there was an inhibition caused to the vagal nerves due to drowning which caused heart attack. The accident was directly responsible for the cause of death. The complainant claims an amount of Rs.1,51,000/- as the insurance amount due to her. The claim was filed as early as 13-4-03 the opposite party repudiated the claim. The repudiation letter states that death was not due to accident but due to natural cause. Thus the claim cannot be honoured. Opposite parties have repudiated the claim on unjustifiable grounds. It is deficiency in service and unfair trade practice on the part of the opposite parties. Hence the complainant had filed this petition for allowing the claim amount along with compensation and cost.

Opposite party-1 filed a version denying averments and allegations made in the complaint except those that are expressly admitted. The complainant is not a consumer as defined under the Act. There is no deficiency, negligence or shortcoming for the services rendered by opposite party-1 . It is true that opposite party-1 issued a Group Personal Accident Policy in favour of opposite party-2 in this case, covering the death or bodily injury resulting solely and directly from accident of fishermen for the period from 31-3-02 to 30-3-03. Opposite party-1 also admits the fact that the complainant is the nominee of the deceased Mr. Mohanan who is the beneficiary of the said policy. Opposite party-1 had made the contract of insurance only with opposite party-2. So only opposite party-2 is legally entitled to prefer a complaint. Opposite party-2 also admits that they had received a claim from the complainant claiming the insured amount on the death of Mr. Mohanan who is one among the beneficiaries of the policy. Mohanan died on 8-2-03 from a place called Surathkal. The postmortem certificate of Mr. Mohanan revealed that the cause of death was “Drowning in sea on 8-2-03 at around 3 P.M. when the boat in which the deceased was fishing capsized. The deceased person and others managed to swim back to boat, when the deceased person complained of severe chest pain. He was then taken to Padmavathi Hospital where he was declared dead on arrival.” According to the Doctor who conducted the autopsy, the cause of death was “death is due to cardiopulmonary arrest due to vagal inhibition, secondary to drowning”. The postmortem report did not reveal the presence of water in the stomach or in the lungs, probablising the case of drowning. The opposite party had arranged for an investigation into this matter and the agency had questioned several persons including the people who accompanied the deceased Mohanan in the boat for fishing in Surathkal sea on the fateful day of 8-2-03. The investigation revealed that the boat had capsized on 8-2-03 while the deceased was fishing along with some co-workers a strong wind and heavy rain capsized the boat. All of them were in the water when the boat overturned. They were rescued by other boat. In the meanwhile the deceased Mohanan complained of chest pain, he was rushed to near by hospital. After examination the doctor declared the death of deceased Mohanan. The body was sent for postmortem. The investigating agency found that there were no symptoms supporting drowning. Opposite party-1 had also tried to find out whether the cause of death as stated in the postmortem report is true and correct. Opposite party-1 had come to the conclusion that the deceased Mohanan the husband of the complainant in this case had died due to heart attack and not due to drowning. If the death was due to drowning the presence of water would be noted in the autopsy report. Opposite party-1 also states that of all the persons who had gone fishing in the boat only one person had died. Taking into consideration of all the factors including investigation report and the opinion given by Dr. Thomas Varghese opposite party-1 was constrained to conclude that the cause of death was not due to accident. Hence opposite party-1 repudiated the claim and informed opposite party-2 all the facts. The present attempt of the complainant is only experimental. The non-presence of water in the vital organs would prove the fact in unmistakable terms that the cardiac arrest caused to Mr. Mohanan was not secondary to drowning. But it was a simple and plain cardiac arrest. The complainant is not entitled for any relief. Hence the petition may be dismissed with cost to 1st opposite party.

Opposite parties-2 and 3 filed a version admitting the fact that Mohanan was a member of fishermen welfare board No.202. The Fishermen Personal Accident Insurance Scheme 2002-03 was implemented through Oriental Insurance Company Ltd. for fishermen. A member fisherman has to remit Rs.30/- per year as premium and the dependent of the deceased will get Rs.1,50,000/- as compensation for the death of the insured person in any accident. Mohanan had remitted the annual premium amount of Rs.30/- on 20-2-02 as per receipt No.8480 and enrolled in the insurance scheme. Mohanan who was engaged in fishing activities at sea on8-2-03 died due to drowning. Widow of Mohanan applied for insurance claim. The claim was forwarded to Opposite party-2 and 3. Opposite party-2 and 3 in turn forwarded to opposite party-1 insurance company for final settlement. But opposite party-1 rejected the claim stating that the death had occurred as a result of chest pain and not an accident. Opposite party-2 and 3 had promptly intimated the claim to opposite party-1. There was no lapse from the part of matsyafed in forwarding settlement of the claim. Hence matsyafed has no liability to settle the claim. In the circumstances the petition is devoid of merits and is liable to be dismissed.

The only point for consideration is whether the complainant is entitled to get any relief?

No oral evidence adduced but documents produced and marked as Ext.A1 to A6 on complainant’s side. RW1 and RW2 were examined on opposite parties’ side.

The case of the complainant is that her deceased husband Mohanan was a fisherman having membership in Matsyafed. The Matsyafed had joined a Group Accident Insurance Policy of opposite party-1 Oriental Insurance Company. Premiums were being paid correctly and the policy was in existence during the period 2002-03. On 8-2-03 the deceased Mohanan along with his co-workers were fishing in sea off coast of Surthkal near Mangalore. The boat capsized and all the fishermen were thrown to the sea all the other fishermen survived except complainant’s husband Mohanan. The complainant and her three daughters are the sole surviving legal heirs of the deceased Mohanan. Complainant had preferred a claim for the insurance policy amount from the insurance company for getting the claim amount for the accidental death policy. Claim was put in through the proper channels but the complainant’s claim was rejected informing that she was not eligible for the claim amount, as her husband had died due to heart attack and not because of accident. Opposite party-1 rejected the claim on the ground that the complainant was the only person who died. All the others had survived they were taken off shore Mohanan had died later due to chest pain and heart attack. The death was not due to drowning. The postmortem report stated that “death is due to cardiopulmonary arrest due to vagal inhibition secondary to browning.” Opposite party-1 insurance company had also taken the stand that there was no contract between the complainant and insurance company. Insurance company had contract with Matsyafed but in our opinion opposite party-2 and 3 have admitted the fact that complainant’s late husband Mohanan was a member who has paid the amount for membership in the Matsyafed organization. Matsyafed Welfare Board is formed to look after the benefits and betterment of poor fishermen going to the sea. The Group Insurance was also arranged for the benefit of the fishermen and their family if any accident occurs to the fishermen. In this case the complainant and her three daughters are the legal heirs of the deceased Mohanan. As the complainant is a beneficiary she has all rights to prefer this complaint against opposite party-1. The second fact contended by opposite party-1 is that Mohanan died due to chest pain and heart attack and not due to drowning so it was not an accidental death it was only a natural death. The counsel for the opposite party-1 had taken the stand that the death was not due to drowning because the postmortem report did not reveal the presence of water in the stomach or in the lungs probablising case of drowning. Opposite party-1 had taken steps to summon Dr. Thomas Varghese and Dr. Soumya to examine as witness on the side of opposite party. The summons issued to Dr. Thomas Varghese was returned unserved. In this instance counsel for opposite party-1 sought the permission of the Forum to examine an expert in Forensic medicine. So opposite party had taken steps to issue sommons to Head of the Department Forensic medicines Medical College, Calicut. Dr. Sherly Vasu, Head of the Department, Forensic Medicines, Medical College Hospital, Calicut was examined as RW2 to prove whether Mohanan had died due to drowning or not. Dr. deposed that she had 27 years of service in Medical College Hospital. She was M.D, in Forensic medicine. She had conducted postmortem in bodies of drowning cases also. The Forum was fully convinced as to the credentials and expertise of Dr. Sherly Vasu to depose in this matter. Doctor has deposed that “ if a person drowns and dies due to cardiopulmonary arrest due to vagal inhibitions normally and invariably there will be presence of water in lungs, stomach and broncho pulmonary area is not true. If water is thrust into the chest sudden death can occur due to shock.” In Page No.2 Doctor also adds that “There won’t be water in the air passages, stomach etc. water might not enter into such organs.” Again in Page-3 of the deposition of RW2 the Doctor reiterates the fact that “In most of the cases of drowning, death may occur due to sudden neurogenic shock and dried drowning also occurs which means only one or two drops may go inside.” The evidence of RW2 is more than enough to conclude that the complainant’s husband had died due to drowning which can be called as an accidental death as it is proven beyond doubt that the deceased Mohanan had an accidental death when the boat capsized and all the fishermen fell into the sea. As it is an accidental death opposite party-1, the insurance company is liable to pay the policy claim amount to the complainant as soon as the claim was preferred. Opposite party-1 had hesitated in allowing the claim amount to the complainant because of a mistaken notion about drowning and heart attack. Now the evidence of RW2 has cleared the doubt regarding the death of the fisherman Mohanan. So we are of the opinion that the complainant is entitled for the full claim amount.

In the result the petition is allowed directing opposite party-1 to release the claim amount of Rs.1,50,000/- with interest @ 9% per annum from 26-6-06 that is date of filing the case till realization to the complainant along with a compensation of Rs.5000/- for the mental agony and hardship she had to undergo. Opposite party-1 are also to pay a cost of Rs.1000/-. Opposite party is to comply the order within one month of receiving the copy of the order.

ORDER ADV. RAVI SUSHA, MEMBER.

This complaint is filed by the complainant for getting to pay Rs.18,70,000/- compensation Rs.25,000/- and cost Rs.5,000/- to the opp.party

The averments in the complaint can be briefly summarized as follows:

The complainant is conducting business in marine spare parts and marine goods like plastic twine, ropes, plastic floats, plastic basket, plastic crates, plastic needle, plastic sheet etc for the 10 years. The goods of the complainant are insured with the opp.party and hence the complainant is the consumer of the opp.party. On 13.5.2004 at about 2 am, the complainant’s shop got fire due to electric circuit therby 90% of the goods stored and 50% of the shop building were charred. On the date of the accident, the complainant was stocking goods worth Rs.24,99,552/-

On the date of the accident the stock and the shop was insured with the opp.party under the standard fire and perils policy for Rs.25 lakhs vide policy No.1541 which was valid from 2.12.2003 to 1.12.2004. After the fire accident, the complainant submitted a claim form to the opp.party claiming compensation for the losses sustained.

Along with the claim form, the complainant had submitted the bank statement for the previous 12 months, audited balance sheet for the previous 2 consecutive years, fire report GD entry of Police, copy of license etc. The opp.party appointed PTR Babu as the 1st surveyor who assessed the loss sustained by the complainant. Subsequently, A.V.Varghese, another surveyor,l appointed by the opp.party demanded the complainant to produce the copies of purchase bills, stock register etc. The complainant submitted that the majority of the purchase bills were destroyed in the fire and hence they cannot be produced.

To prove the stock, the complainant obtained the monthly statement from the bank and handed over the same to the surveyor. After the lapse of a week the surveyor inspected the premises and prepared a Mahazer, without making a detailed examination of the destroyed and charred goods relating to a small quantity of goods. Even though the complainant had pointed out the goods damaged due to the fire accident, the surveyor ignored to consider the same.

The surveyor had unilaterally assessed the loss at Rs.2,03,550/- In fact the total damage caused to the complainant is Rs.24,99,552/- The surveyor had deliberately ignored to assess the actuallloss and quantified the same at Rs.2,03,550/- only with the malafide intention to help the opp.party. Hence filed this complaint for getting relief as prayed for

The opp.party filed version contending, interalia, that the complaint is not maintainable either in law or on facts. The definition complaint, complainant, consumer dispute service as defined in section 2[1] of the Consumer Protection Act do not cover the claim madeout in the complaint.
It is admitted that this opp.party had issued a standard fire and special peril policy for a sum insured of Rs.25,00,000/- to the complainant for his shop premises engaged in the sale o marine spare parts, hardwares and fishing nets etc. under the name and style M/s. Indus Marine Agencies. The complainant on 13.5.2004 has reported a claim before this opp.party stating that the insured shop caught fire on the very same day at around 2 A.M. and the stocks kept in the hop room were destroyed. The opp.party immediately issued a claim form to the complainant with a request to resubmit the same after duly filled and signed along with the estimate of loss.

The opp.party thereafter deputed a licensed surveyor and loss assessor Mr. P.T.R. Babu for conducting preliminary survey on the claim reported by the complainant. The surveyor conducted the preliminary survey of the shop premises on 13.5.2004 at about 2 p.m. in the presence of the complainant The surveyor thereafter submitted the preliminary survey report before this opp.party. The opp.party deputed a licensed and competent insurance surveyor CDR A.V.V Varghese has visited the shop premises on 14.5.2004 and verified the damaged items in detail and took photographs of the inside shop premises and of the damaged items found in the shop room.

The allegation made in the complaint contrary to the above that almost all stocks were destroyed is unfound to reality and hence denied. The Surveyor CDR Varghese at the time of his 1st visit itself convince the fact that the value of stocks claimed by the complainant at the time of incident is incorrect and the maximum stock in the shop premises at the time of fire mishap was not more than Rs.10,00,000/- The complainant was not keeping any stock register and purchase bills in order to substantiate the quantity of stocks kept in the lshop premises at the time of loss and he failed to produce any of those documents before the surveyor during the time of inspection.

The period stock statement submitted by the complainant with Canara Bank, Kollam is only a stereo type statement so as to cover up the loan amount availed by him from the Bank The said statement has got no legal sanctity or authenticity and lacking any factual bearings as to the actual stocks kept by the complainant in the shop premises at the time of loss.

The surveyor Mr. Varghese during the course of his inspection found that main items stored in the shop was Nylon nets and the total quantity of the same is access to be less than 1200 Kg. approximately worth Rs.2.25 lakhs. The claim made in the complaint labour the cost of Nylon nets kept in the shop premises is unfounded to reality and totally baseless. The claim of the complainant that the plastic items including a large quantity of HDP fishing net got burned and rendered to ashes is absolute false and hence denied. The surveyor sought expert opinion from the Professor and head of the department of Polymer Science and Rubber Technology of Cochin University, Dr. Rani Joseph in the subject matter and ruled out the possibility of the claim preferred by the complainant that a large quantity of HDP fishing net got burned and rendered to ashes.

It is significant to know that the fire was put off within one hour due to the timely action of the fire force authorities and there is no possibility of complete burning of fishing nets and it rendered to ashes. The surveyor deputed by this opp.party after complying all the requirements for assessment of loss under the policy conditions has assessed the net loss to a sum of Rs.2,14,263.65 after deducting salvage value Rs.3,000/- The allegations made in 7th para of the complaint that the surveyor hyas assessed the loss to the tune of Rs.5,00,000/- is totally baseless and false. The opp.party on the basis of the policy condition has deducted the compulsory policy excess Rs.10.713/- from the net assessment made by the surveyor and accordingly settle the claim payable to the complainant to a sum of Rs.2,03,580/- The opp.party thereafter sent a discharge voucher to the complainant for effecting settlement of the claim. But the complainant refused to sign the discharge voucher land receive the cheque from the opp.party raising untenable contentions.

The complainant instead of settling the claim had issued a legal notice to the opp.party for which proper reply was given by the opp.party through its counsel The quantum of loss sustained to the complainant was properly assessed by a competent and qualified insurance surveyor and loss assessor as per the statutory provisions of the Insurance Act and the complainant has no mass of cause of action to dispute the quantum of loss assessed by the surveyor under the provisions of the CP.Act. Hence the opp.party prays to dismiss the complaint.

Based on the contentions the following points arise for consideration are:
1.Whether there is deficiency in service on the part of the opp.parties
2.Reliefs and costs.

For the complainant PW.1, PW.2, and PW.3 are examined. Exts.P1 to P12 are marked
For the opp.parties DW.1 and DW.2 are examined. Exts. D1 to D9 are marked.

Point 1 and 2

It is not disputed that the complainant has taken Ext.P2 policy and that the policy was subsisting when the complainant’s shop got fire. The complainant submitted Ext.P3 claim form[claiming Rs.24,99,552/- or the actual loss sustained to the complainant. The opp.party on the basis of Ext. D1 survey report was ready to pay Rs.2,03,550/- as the actual loss happened to the complainant. Against which the complinant filed this complaint.

Now the question is whether the complainant is entitled to get claim as prayed in the complaint. Complainant is relaying Ext.P1 monthly statement regarding the stocks. In order to prove Ext.P1 the complainant has examined PW.2. But in cross examination he deposed that stock register stock statement. A competent authority stock assess. PW.2 also admitted that in order to sanction a loan facility of Rs.15,00,000/- sale tax registration is mandatory. Complainant Cdid not produce any stock register. Hence purchase bills in order to prove Ext.P1 the complainant is failed to prove that he was having stock mentioned Ext.P1 at the fire incident time.

In order to assess the actual loss sustained to the complainant, the opp.party immediately on the receipts of the claim intimation deputed DW.2 for conducting a preliminary survey. According to the opp.party preliminary survey is meant only for ascertaining the factual position of the occurrence and to collect the primary evidence including the photographs of the occurrence before the intervention of any external agency. After DW.1’s report Ext. D8 the opp.party appointed DW.1 for conducting a detailed survey about the extent of loss sustained to the complainant.

According to the complainant the appointment of a second surveyor is illegal. For that the opp.party’s counsel argued that DW.2 was appointed in order to conduct the spot survey of the shop premises alone. On verying Ext.P8 it is seen that the insured was intended to keep the shop “as it is “ still conducting the final survey and inP8 . DW.2 did not mentioned about the extent of loss. He has noticed only about the damages. So it cannot be said that opp.party deposited two different surveyors one after another for the assessment of loss of the incident. The allegation of the complainant is that the entire stock kept in the shop were destroyed due to the fire incident. The apex court held that the claim payable under an insurance contract has to be necessarily assessed by a licensed surveyor and loss assessor.

On careful scrutiny of the photographs taken by the surveyors DW.1 and DW.2 and Ext. D1 and D8 it is very much clear that, the racks, office table and other furniture’s kept inside the shop premises are free from any Fire damages except some minor damages of the building. The surveyor on his physical verification found that the maximum stock at the fire incident time was not more than Rs.10,00,000/- The surveyor issued letter to the complainant [Ext.D6] to produce the stock register, sales tax return for the last 12 months, audited balance sheet for the last 2 consecutive years etc. for finalization of the survey report. But the complainant has not responded to the same.

By considering the entire evidence we are of the view that there is lno authentic documents or evidence adduced by the complainant to discared the authenticity of Ext.D1 survey report. Hence the complainant is entitled to get only Rs.2,03,580/- assessed by DW.2 as the extend loss sustained to the complainant. As the opp.party has already offered the said amount to the complainant. There is no deficiency in service on the part of the opp.party

In the result the complaint fails and the same is hereby dismissed without cost of the opp.party.

Dated this the 30th day of March, 2009.

ORDER

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



1)This is a complaint praying to direct the OPs to pay to the complainant Rs.2,00,000-00 with interest, Rs.1,00,000-00 towards compensation, and cost.


2)Brief facts of the complaint are that the complainant is the wife of late Balraj Laxman Jadhav who had insured his motor cycle for third party risk under policy No.2008/3012 and for his individual life risk under policy No. 2008/49771.by paying premium through DD dated 20-12-2007 and remitted all the papers to OP-3. The husband of the complainant died in motor cycle accident. The incident was informed to the OPs on 30-1-08 and issued legal notice to the OPs. But they avoided their liability. There is deficiency of service on the part of the OPs and they are liable.

3)The OPs 1 and 2 filed WS stating that the OP-2 for the first time on 31-12-07 received .two proposals from the deceased. The proposals and the premium amount were accepted for the first time on 2-1-08 and two independent policies were issued covering the risk from 2-1-08 to 1-1-09. One two wheeler liability only policy was issued for third party risk wherein personal accident coverage for Rs.1,00,000-00 was included on payment of additional premium of Rs 50/- and a Nagarik Suraksha Individual policy was issued to the deceased covering the risk from 2-1-08 to 1-1-09 for a sum of Rs.80,000-00 for death and Rs. 20,000-00 for Hospitalization on payment of premium amount of Rs.101/-. The amount collected was receipted on 2-1-2008.The OP-3 is not authorized to issue any policy .It is only on 31-1-2008 for the first time the OP-2 received a letter from the complainant about the death of the deceased. The notice of the complainant is properly replied. The policies were got issued by misrepresentation and concealing the death of the deceased. There is no deficiency of service on the part of the OP. He prays to dismiss the complaint with costs.


4)The OP-3 filed WS stating that he received the required premium amount on 21-12-07 from the husband of the complainant as this OP had obtained DD for the said sum of Rs 494/- alongwith other premiums collected for other persons on the said date, which have been remitted to OP-2 on the same day through Janapriya Courier under their receipt No.3299704.The complainant and the OPs have filed their affidavits. The complainant has got marked Ex.C-1 to C-16. The OP-1 has got marked Ex.R-1 to R-8 and the OP-3 has got marked Ex. R-9 to R-11.

5)The points that arise for our consideration are:
i)“Whether the complainant proves that her deceased husband paid premium to OP-3 on 20-12-2007 and she got issued the policy by proper representation” ?

ii)What order ?


6)Our replies to the above points are:
i)Negative.
ii)As per order.

REASONS:

7)Point No. 1:- The counsel for the counsel for the complainant contented that the husband of the complainant insure himself and his vehicle by paying premium of Rs.393-00+101-00 by cash to the OP-3 on 20-12-2007 and the same day the OP-3 sent the amount through DD inclusive of other persons premiums. The OPs-1&2 have issued policy. The insured died on 26-12-07 and the death intimation is sent to the OPs 1&2 on 30-1-08.The policy issued is proper and the OPs 1&2 are liable to pay the insured amount.

8)The counsel for the OPs 1&2 vehemently urged that the OPs 2 received the premium for the first time on31-12-2007 with two proposals one for Nagarik Suraksha Policy and the other for the two wheeler vehicle. The proposals and the premium amount were accepted and two policies were issued on 2-1-08. There is no previous policy and it is not a renewal. On 31-1-08 only the OP received a letter about the death of the deceased. The policies are got issued by misrepresentation concealing the death of the deceased. The premium is paid after the death of the deceased. The OP-3 is not authorized to issue policy. There is no deficiency of service on the part of the OPs 1&2 and they are not liable. He prays to dismiss the complaint with costs.

9)We have gone through the pleadings, affidavits and documents submitted by the parties. It is admitted fact that the husband of the complainant died in accident on 26-12-07 and as per EX.C-9 and C-10 it is intimated in writing to the OP on 31-01-2008. Ex.C-2 and C-3 show that the policies are issued by the OP on 02-01-08. The complainant relies on Ex R-9, R-10 and R-11 to show that the premium amount is paid to OP-3 and the OP-3 sent it to OPs-1&2. Ex.R-9 is counterfoil issued by the Syndicate Bank dated 20-12-07 for sending an amount of Rs. 3241/- to the OPs-1&2. Ex.R-10 and R-11 are the receipts issued by the Janapriya Courier Service for sending consignment to Oriental Insurance Co. Ltd. None of these three documents show that the premium amount of the deceased Balraj is included in the said amount. The date on Ex.R-10 and R-11 are overwritten. The date ‘10’ is made ‘20’. It is a clear manipulation of the document. The complainant has not examined the proprietor of Janapriya Courier nor called for the office copy of the said Courier. It shows that no any premium amount is paid on 20-12-07 by the husband of the complainant to OP-3 as well as to OPs 1&2. It is only after the death of said Balraj the amount is sent to the OPs 1&2 through the OP-3. The records at Ex. C-9 and C-10 show that the death intimation is given on 30-1-08 i.e. after more than one month after the death. After examining the documents at Ex.C-12, Ex.R-1 and R-4 the Forum has taken judicial notice that the signatures at Ex.R-1 and R-4 differ from the signature on Ex, C12. The signatures on Ex.R-1 and R-4 are not of the deceased Balraj. It shows that the policy is got issued by misrepresentation in collusion with the OP-3 concealing the death of Balraj to make illegal gains. The Hon’ble NCDRC in I (2008) CPJ 228 has held that ‘the agent has no authority to accept premium on behalf of the LIC – Deposit by agent after death of deceased would not entitle the claimant to get insured amount- No relief’. In this case also the premium is paid to the Insurance Co. and the policy is issued after the death of the husband of the complainant. The complainant is not entitled for any relief. So we reply the Point No.1 in the negative.


10)Point No.2. In view of the above discussions we are of the opinion that there is no deficiency of service by the OPs 1&2, they are not liable and the complaint is liable to be dismissed.
We pass the following order.
ORDER

The complaint is dismissed.

(Order dictated, corrected and then pronounced in the open Forum on this 30th March, 2009)

Order delivered by Smt. Shashikala P. Naik, Member



1)This is a complaint praying to direct the OP to pay to the complainant Rs.1,00,000-00 with interest and cost of Rs 10,000-00.

2)Brief facts of the complaint are that the complaints’ deceased son Vijay and 19 others were insured by Usman Ishaquesab of Hubbangeri Kumta for Rs1,00,000-00 each pertaining to accidental death benefits during the course of employment in boat, small vessel in a river or in Arabian Ocean from 10-8-2005 to midnight of 9-8-06 with the OP. Vijay Putturaya and his three brothers went in the boat for fishing on 2-7-2006. At that time their boat met with accident and Vijay Putturaya was drowned in the sea and died. The complainants submitted claim with the OP along with documents including the succession certificate. Inspite of repeated requests the OP failed to pay the amount. There is deficiency of service on the part of the OP and the OP is liable.

3)The OP filed WS admitting the policy and stating that the incident took place on 22-07-06 i.e. during laid up period. The laid up period was from 1-6-06 to 15-08-06. The OP received the claim form on14-8-06 only with death certificate. Inspite of asking the complainant to submit other documents they failed to provide the necessary documents. The OP did not repudiate the claim nor refused to pay the amount. As per the terms of the policy the OP is not liable to pay interest on the policy amount. If at all, the insurance co; is liable to pay the insured amount of Rs.1,00,000-00 only provided the complainants submit all the required documents. There is no deficiency of service on the part of the OP. He prays to dismiss the complaint.

4)The complainant and the OP have filed their affidavits. The complainant has got marked Ex.C-1 to C-7 and the OP got marked Ex.R-1 toR-3.

5)The point that arises for our consideration is: “Whether there is deficiency of service on the part of the OP” ?
6)It is the contention of the counsel for the complainant that the insured deceased died in the boat accident. But the OP has not paid the insured amount. The say of the OP that there was laid up period is not correct. There is no mention about the laid up period clause in the Policy. The OP can not take the said defence. The complainants have submitted all the documents but the OP has not processed the claim. The rejection of the claim is the deficiency of service by the OP.

7)The counsel for the OP vehemently urged that there was laid up period from 1-6-06 to 15-8-06. The deceased had gone for fishing during the laid up period and has violated the conditions of the policy. The complainant has not submitted the required documents. So the OP could not process the claim. For the said reason the OP cannot be saddled with payment of interest and costs. There is no deficiency of service on the part of the OP and the OP is not liable. He prays to dismiss the complaint with costs

8)We have gone through the pleadings, affidavits and documents submitted by the parties. Ex C-1 is the Policy issued by the OP. There is no mention about the laid up period in EX.C-1. It seems that the complainant has produced the CC of succession Certificate(Ex.C-4) to the OP though it was not a necessary document. The fact that the complainant on demand by the OP has submitted the CC of Ex.C-4 to the OP shows that the complainant has submitted other required documents. So in our view the rejection of the claim is unjustified and the complaint is liable to be allowed directing the OP to pay to the complainant the insured amount with interest @ 9% pa from 22-1-2007 i.e. six months after the death of the insured till realization and cost of Rs 1000-00.
We pass the following order.

ORDER

The complaint is allowed. The OP is directed to pay to the complainant the insured amount with interest @ 9% pa from 22-1-2007 till realization and cost of Rs.1,000-00.

//JUDGMENT//

This is the complaint filed by the Complainant K.Mahesh against Respondent Nos.1 and 2 under Sec-12 of Consumer Protection Act for to declare that the Respondent No.1 and 2 are jointly and severally responsible for to pay the compensation amount to the injured P.Basava Murthy in the accident of tractor and trailer bearing No.KA-35/T-1740 and 41 and to award an amount of Rs.20,000/- towards deficiency in service of Respondent No.1 and for to award an amount of Rs.5,000/- towards cost of this litigation with other reliefs as deems fit to the circumstances of this case.

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

After purchase of tractor and trailer bearing No.KA-35/1740 and 41 by the Complainant from his previous owner S.Shekarappa, he pledged the said vehicle to the Respondent No.1 Bank and borrowed loan. It was the duty of Respondent No.1 to insure the vehicle from the premium paid by him towards loan amount. It was not done by the Respondent No.1. Incidentally on 23/11/2006 the said tractor and trailer met with accident in Harakabhavi village. In the said accident one P.Basava Murthy sustained injuries. Police have registered the case under Crime No.174/2006. The said P.Basava Murthy filed MVC bearing No.751/2007 by claiming compensation amount of Rs.2,50,000/- in Prl. Civil Judge (Sr.Dn.) Court, Chitradurga. Non insuring the said vehicle with the Respondent No.2 by the Respondent No.1 inspite of amount credited towards insurance is deficiency in service on the part of Respondent No.1 as such he filed this complaint for the reliefs as prayed in it.


3. The Respondent Nos.1 and 2 appeared in this case through their respective advocates filed their separate Written Versions. The brief facts of W.V. of Respondent No.1 are that;

Clause No.23-B of the agreement is very much clear that it has got liberty and is not bound to effect such insurance. If Complainant has insured his vehicle with Respondent No.2 it was its duty to inform it to the Complainant as well as to Respondent No.1. One Shekarappa was insured the vehicle with Respondent No.2. After lapse of Policy, the present Complainant has not insured his vehicle with 2nd Respondent which is due to negligence and fault of Complainant. All other allegations made against it have been specifically denied and prayed for to dismiss the complaint among other grounds.


The brief facts of W.V. of Respondent No.2 are that;

The Respondent No.2 is stranger and third party to the Complainant and Respondent No.1. Both of them are no way connected to Insurance Company. The claim petition bearing MVC No.751/2007 is pending before the MACT, Chitradurga. Hence, the Complaint be dismissed with exemplary costs. The tractor and trailer of Complainant are not insured with this Respondent as on 23/11/2006. Hence, paying compensation amount to him and granting the reliefs as prayed in this complaint are not arising for consideration. Hence, it was prayed for to dismiss the complaint with exemplary costs.

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

1.
Whether the Complainant proves that he purchased tractor and trailer bearing No.KA-35/T-1740 & 41 from its previous owner S.Shekarappa and thereafter he borrowed loan from the Respondent No.1 Bank, but Respondent No.1 Bank not acted on terms and conditions of agreement with him as per the terms and conditions with its previous owner S.Shekarappa and thereby Respondent No.1 Bank not insured the said vehicle with Respondent No.2 from his loan account even though there was hypothecation deed in favour of Respondent No.1, incidentally the said vehicle met with an accident on 23/11/2006 in which P.Basava Murthy sustained injuries and claim petition filed by him is against this Complainant, therefore, it happened due to negligence of Respondent No.1 and thereby Respondent No.1 found guilty of deficiency in its service towards him?

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

3.
To what relief the Complainant is entitled for?

//POINTS//

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

Point No.1:
In Negative.


Point No.2:
In Negative.

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

//REASONS//

Point Nos.1 & 2: -


6. In order to prove the facts involved in these two points, the affidavit evidence of Complainant was filed, he was noted as P.W.1, documents Ex.P.1 to Ex.P.8 are marked. On the other hand, the affidavit evidence of Branch Manager of Respondent No.1 Bank was filed, he was noted as R.W.1. No documents filed and marked. Affidavit evidence of Divisional Manager of Respondent No.2 was filed, he was noted as R.W.2. No documents filed and marked. All the parties have not filed their written arguments.

7. The main case of Complainant is that he purchased the tractor and trailer bearing No.KA-35/T-1740 and 41 from its previous owner S.Shekarappa. After his purchase he borrowed loan from the Respondent No.1 Bank by pledging the vehicle with it.

8. As per the facts pleaded in Para No.4 on Page No.4 of complaint and facts stated in his affidavit evidence, it is very much clear that, the said tractor and trailer met with an accident on 23/11/2006 in Harakabhavi village and in the said accident one P.Basava Murthy sustained injuries. A Police case was registered under Crime No.174/2006.

9. In view of the facts, Ex.P.1 copy of R.C. has no much importance to appreciate in detail. Ex.P.2 to Ex.P.5 are the records of Insurance Company pertaining to the said vehicle in respect of previous owner of vehicle by name S.Shekarappa.

10. It is an admitted fact by the Complainant that after his purchase he not got insured it directly with Respondent No.2 Insurance Company or through the Respondent No.1 Bank. Further Paras of Complaint goes to show that injured P.Basava Murthy filed MVC case against present Complainant by claiming compensation amount of Rs.2,50,000/- for the injuries sustained in the accident vide the copy of claim petition Ex.P.7. In the said claim petition, P.Basava Murthy made an allegation against the driver of tractor and trailer who is the servant of present Complainant as he drove it in rash and negligent manner and due to it the tractor rolled on his right foot. Therefore, he claimed an amount of Rs.2,50,000/- from the Complainant on different heads as noted in Para No.3 of Ex.P.7.

11. The allegations made by the Complainant against these Respondents are related to the said accident as the said vehicle was not insured on the said date, time and place of accident.

12. It is the duty of injured P.Basava Murthy to prove the rash and negligent driving of tractor on the said date, time and place of accident. The prayer No.1 claimed by the Complainant is out coming of the said accident and prayer No.2 follow the result of prayer No.1. In the instant case, the Complainant not claiming or contending that, his vehicle damaged in the accident. The Complainant is also not contending that he insured the vehicle comprehensively with Respondent No.2 Insurance Company or through the Respondent No.1 Bank. There are no convincing evidences to show that there was continuity of the previous Insurance Policy from the date of his purchase till the date of accident.

13. Ex.P.2 to Ex.P.5 are standing in the name of previous owner S.Shekarappa for the year 2005. Thereafter insurance policy was lapsed. According to him, he got transferred the said vehicle in his name on 26/04/2006 after lapse of its policy. The said accident took place on 23/11/2006. In the said circumstances, there are no records from the side of Complainant that he informed to the Respondents regarding lapse of Insurance Policy of previous owner or a request made by him to the Respondent No.1 Bank for to get insurance policy afresh from the date of his purchase. If this complaint was filed by the Complainant by contending that his tractor and trailer damaged in the said accident, then that would be a different matter. Here he has not pleaded anything about damages to his tractor or trailer in the accident. What he wants to claim by this complaint is that the Respondent Nos.1 and 2 jointly and severally liable to pay the compensation amount to injured P. Basava Murthy in MVC vide Ex.P.7.

14. In the above circumstances of this case, now we have to see as to whether this Forum can entertain such type of Complaint either to find out the negligence and deficiency in service on the part of any one of these Respondents and fixing of liability on each of them. In this regard, we have referred ruling reported in AIR 1995 SUPREME COURT 1384 Chairman Thiruvalluvar Transport Corp. Vs. Consumer Protection. In the said case, the Hon’ble Supreme Court discussed the case similar to the facts of present case on hand. Their lordships in the said case observed as - Sec-3 of C.P.Act – Whether National Commission, State Commission or District Forum constituted under C.P. Act have jurisdiction to try the cases arising out of the Accident Claims, due to death or fatal injuries sustained by the persons in the vehicle accident – No – Accident Claims Tribunals constituted under the M.V. Act is special act – Consumer Protection Act is a general Act in respect of consumers – as such, special law prevails over general law as such either National Commission or State Commission or District Forum constituted under C.P.Act have no jurisdiction to try the cases arising out of accident which are triable by Accident Tribunals constituted under M.V.Act.

15. In the instant case, the Complainant claimed first relief with regard to fixing of joint and several liability of these Respondents for to the claim of P.Basava Murthy due to injuries sustained by him in the accident. The 2nd claim of him is for to grant an amount of Rs.20,000/- due to deficiency in service on the part of Respondent No.1. As we have already discussed the entire case of Complainant and we have gone through the principles of ruling referred above, we are of the view that, the first prayer of Complainant cannot be granted by this Forum which is for fixing of liability of Respondent Nos.1 and 2 jointly and severally for the injuries sustained by P.Basava Murthy in the said accident. Hence, we are not competent to grant such kind of relief as prayed by the Complainant in this complaint. Accordingly, the said prayer was rejected.

16. Similar prayer was made by the Complainant to hold that there was deficiency in service on the part of Respondent No.1 for not getting insurance of the said vehicle by it. This relief is an ancillary relief out coming of the said accident. Hence, we are not competent to decide it. If there was prayer for compensation for the damages caused to the said vehicle in the accident then it would be a different matter. In the instant case, there is no such kind of contention by the present Complainant that his tractor and trailer damaged in the said accident as such, the Complainant cannot get second relief from this Forum.

17. The learned advocate for Respondent No.1 submitted two rulings which are II (2000) CPJ 120 Asad Ullah Khan Vs. M.C. Motors & Ors. and I(1998) CPJ 16 Kulwant Sing Vs. Singh Finance Pvt. Ltd., in respect of hire purchase and the dispute in between hire purchaser and financier. Those rulings are not guiding us to decide the case of Complainant. The ruling of Hon’ble Supreme Court cited above is sufficient for us to decide the case of Complainant. Accordingly, we have not discussed factual aspects of cases of rulings referred by the learned advocate for Respondent No.1.

18. In the said circumstances, the Complainant is not entitled to get any one of the reliefs as prayed in his complaint as such, we answered Point Nos.1 and 2 in Negative.

Point No.3: -

19. In view of findings on Point Nos.1 & 2, we pass the following;

//ORDER//

The complaint filed by the Complainant is dismissed. All the parties to this complaint are directed to bear their own respective costs.



Inform the parties accordingly.
(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the Open Forum this 05th day of MARCH 2009).

PRESIDENT,

DISTRICT FORUM, BELLARY.

MEMBER,

DISTRICT FORUM, BELLARY.

MEMBER,

DISTRICT FORUM, BELLARY.

Complaint filed on 10.12.2008

and Decided on 17.03.2009

BEFORE THE UDUPI DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

AT UDUPI (KARNATAKA)

PRESENT: 1. Sri P.C.Gopal, President,
2. Sri Bekal Lakshmana Nayak, Member.

Consumer Complaint No.147/2008

Order dated 17.03.2009

Between:

K.Ramesh Pai,
aged about 42 years,
S/o Sanjeeva Pai,
Opp. Viveka High School,
Kota Bye Pass, NH 17,
Saligrama Kota,
Udupi Taluk and District.

(Sri S.P. Nayak, Advocate for the Complainant)

……….. Complainant

Versus

1. The Branch Manager
Oriental Insurance Co. Ltd.,
Prabhu Building, Municipal Road,
Kundpura.

2. The Divisional Manager,
Oriental Insurance Co. Ltd.,
Court Road, Udupi – 576 101.

(Sri Krishnamoorthy P., Advocate for the Opposite Parties)

………….. Opposite Parties

WRITTEN BY SRI BEKAL LAKSHMANA NAYAK, MEMBER

1. The Complainant fled this complaint in Sec. 12 of CPA alleging deficiency in service by Opposite Party in repudiating the claim of the Complainant on insurance and claimed Rs.1,00,000/- towards personal accident cover with interest at the rate of 15% per annum from 23.2.2005 till date of payment, compensation of Rs.1,00,000/- for mental agony and tension, financial loss and injury and Rs.1,500 towards cost of notice, Rs.5,000/- towards cost of proceedings and Rs.3,000/- towards traveling and other expenses and any other reliefs the Forum deem fit in the matter.
2. The case of the Complainant is that he is the owner of Hero Honda Motor Cycle bearing Regd. No.KA20 K 8736 having insurance cover for the period

Contd…….2

23.8.2004 to 22.08.2005. The Complainant while riding the said vehicle met with a road accident on 23.2.2005 at about 2.30 a.m. at N.H.17, Opp. Old Police Station Manur Kota, Udupi Taluk and sustained severe and grievous head injury other injuries.

3. The Complainant submits that section III of the contract of insurance deals with personal accident cover for owner/driver in the accident apart from other injuries, the Complainant got sustained loss of hearing power in his left ear and hearing power of right ear is slowly diminishing in spite of the best treatment he could not recover the lost hearing power. Thus, the Complainant is victim of total disablement from accidental injury and he is entitled to be compensated to Rs.1,00,000/- as per the contract of insurance. Immediately after the accident the Complainant lodged claim before the Opposite Parties who sent him a cheque for Rs.1,200/- dated 15.11.2005 without any basis, which the Complainant was compiled and constrained to return to the Opposite Parties and admitted before the Civil Judge (Jr.Dvn.) and Addl. Motor Accident Tribunal, Kundapura in MVC No.464/2005 filed by the Complainant against the Opposite Parties. The case was perused till 22.08.2008. The Complainant is consumer of insurance services from Opposite Party which they failed to provide. Non-honouring of accidental claim on the part of Opposite Parties are guilty of deficiency of service. Consequently, the Complainant has suffered substantial loss injury, mental agony and tension apart from permanent disablement for which the Opposite Parties are liable to compensate in adequate. Left with no alternative the Complainant got issued a legal demand notice on 10.11.2008 to the Opposite Parties calling upon them to settle the claim as per the contract of policy with the above prayed for compensation with 15% interest within 15 days of the receipt of the said notice. The Opposite Parties replied to the notice on 29.11.2008 assigning baseless reasons for repudiating the claim. The Complainant submits that the cause of action arose on 23.02.2005, 15.11.2005, 22.8.2008, 10.11.2008, 15.11.2008, 17.11.2008 and finally on 29.11.2008. Hence this complaint with the above prayer for reliefs.

4. On admission of the complaint, notices were served on the Opposite Parties. Opposite Parties appeared through their counsel and filed the version contending that the complaint is false, misconceived, fictitious, vexatious and not maintainable in law or on merits. The above complaint has been filed to extract unlawful monetary gain if possible. The Opposite Parties deny the entire claim of

Contd……3

the Complainant. Opposite Parties admit that ownership of the vehicle Regd. No.KA20 K8736. Opposite Parties admit the insurance cover for the period from 23.08.2004 to 22.08.2005 but denied the accident on 23.2.2005 at about 2.30 am at NH 17 and the Complainant is put to strict proof of this. Opposite Parties deny the alleged accident, the Complainant has lost hearing power in his left ear and hearing power of that of right ear is slowly diminishing or the alleged deafness cannot be cured and resulted in total disablement and entitled for compensation of Rs.1,00,000/- as per clause III of the contact of Insurance. The disability pleaded by the Complainant is false and denied. Opposite Parties submit that the accident occurred due to rash and negligent driving of driver Dinesh Nayk who does not have valid driving licence on that date of accident. The Complainant was pillion rider and had no licence on the date of alleged accident. The alleged accident occurred due to the own fault of petitioner and his driver and was admittedly not caused by any external and visible means. Under such circumstances the Opposite Parties are not liable to pay the compensation to the petitioner.

5. Complainant has not forwarded the claim belatedly and considering the claim as per rules the Opposite Parties forwarded a cheque for Rs.1,200/- towards full and final settlement which was refused by the Complainant without basis. The Complainant cannot compel the Opposite Parties to honour the terms of insurance when the claim of the Complainant barred under the exemptions of the policy. The legal notice of the Complainant has been replied properly with true facts. The reply may be read as part of this version and further the written statement in MVC No.464/2005 and MACT, Kundapura may also be read as part of this version.

6. The cause of action is pleaded by the Complainant is false and the claim is barred by limitation. The Complainant is not a ‘consumer’ and this Forum has not got the jurisdiction to decide the false complaint of the Complainant. Whatever the claim of the Complainant is governed by the terms, exceptions, limitations of insurance policy and the Complainant without affording for the remedies provided under the policy cannot knock the doors of this Forum. The Complainant deliberately failed to prosecute the MVC before the MACT, Kundpaura and got
dismissed the same for his own fault and cannot fight the same before this Forum. Hence this complaint is liable to be dismissed. The Opposite Parties submit that without prejudice to the contention their liability if any is limited in paying the

Contd…..4

compensation as provided under the policy is nothing else. The Opposite Parties are not liable for paying interest for unreasonable delay in filing the complaint. The Complainant cannot neglect his claim forwarded in personal accident claim form dated 31.08.2005 as he is estopped from pleading to establish the same. The Opposite Parties reserve their right to file additional version if circumstances so warrant and prayed for dismissal of the complaint with exemplary cost.

7. Complainant filed 8 documents in support of his claim marked as Ex.C-1 to Ex.C-8 and Opposite Parties filed 7 documents marked as Ex.R-1 to Ex.R-7. Parties filed affidavits, interrogatories and reply affidavits. We heard the parties. These are the materials placed before this Forum to decide the complaint. The issues that arise out of these for decision are :
1) Whether the complaint is barred by limitation?
2) Whether the Opposite Parties settling the claim for Rs.1,200/- amounts to deficiency in service?
3) Whether the Complainant is entitled for the reliefs?
4) What Order?

Point No.1 & 2:
8. The Complainant argued that the Opposite Parties had admitted the ownership of the vehicle, the insurance coverage, also admitted the accident. The Opposite Parties have got up manipulated and concocted certain documents and produced them before this Forum. The Opposite Parties produced Ex.R-7 the calculation sheet Misc. Accident claim Scrutiny form for which no explanation or basis is found in any of the papers submitted by the Opposite Parties or in their arguments, version, affidavits or anywhere else. The Complainant argued that Ex.R-5 is got up and fabricated for this purpose only since the period shown in form is 25.1.2005 to 24.01.2006 whereas the policy was for the period of 23.08.2004 to 22.8.2005. The policy issued by the Opposite Parties is marked as Ex.C-1 which is a single policy and there are no other policies separately issued for personal accident claim and have been contested and produced Ex.R-5 as documentary evidence by the Opposite Parties. Thus there cannot be two policies on a vehicle by the same company to cover two different terms.
Complainant denies document No. Ex.R-6. The Ex.R-7 was not produced by the Opposite Parties at any time before the MACT, Kundapura. Opposite Parties have admitted returning of cheque for Rs.1,200/-.

Contd……5

9. The Complainant argued that page 7 & 8 of the terms and conditions as regards personal accident cover to pay driver and unnamed pillion passenger, then referred to and accident claim form wherein claimed Rs.500/- per week or total sum of Rs.16,786/- in the declaration. The Opposite Parties have failed to explain how they calculated Rs.1,200/- even today before this Forum. As per Ex.R-5, 6 and 7 it appears that the claim is not settled, the Complainant is under regular treatment means it is permanent deficiency.

10. The Opposite Party has failed to comply with terms and conditions of the policy and they failed to inform the Complainant on what basis they have arrived at the amount, therefore they have indulged in Unfair Trade Practice and that is deficiency in service. Therefore, prayed to allow the complaint with prayed for reliefs.

11. The Opposite Party argued that the Complaint is barred by limitation and this Forum has no jurisdiction to try the false claim of the Complainant. Opposite Party drew the attention to Ex.C-1 Driver clause under rule 3 of the Central Motor Vehicle Act, 1989 and Section III of terms and conditions at page 2 of the policy. The Opposite Party submitted that the present ailment or the claim does not fall within the purview of the Section III – Personal Accident cover for owner-driver. Opposite Party referred to para 2 of the complaint and then further referred to para 3 of Ex.R-1, wherein the cause of accident are different. The Complainant filed FIR copy marked as Ex.C-2 at page No.3, it is stated that the “Pillion rider Ramesh Pai” and the rider was one Dinesh Nayak. Therefore there is no conformity in the statement and at any cost the Complainant was not riding the vehicle at the time of accident. The insurance is available to driver and co-driver and not to pillion rider. Without admitting that the Complainant had injuries in the accident, whether it is covered under Section III of the policy conditions under personal accident is a question to be looked into. The coverage available under this section is only to owner-driver or co-driver traveling in the insured vehicle, if sustains injuries and not for the pillion rider and further the claimed injuries of the Complainant whether it is permanent disability is not proved by the Complainant.
Complainant produced Ex.C-4 a treatment certificate issued by Kasturba Hospital, Manipal signed by Asst. Professor, Dept. of Neurosurgery which doesn’t speak the permanent disability which only says “he had reduced hearing in the left ear. He was advised to regular follow up in neurosurgery and ENT departments.

Contd…………6

12. The Neurosurgeon is not an ENT specialist, therefore he is not authorized to issue permanent disability certificate. It can only be issued by ENT specialist to prove this certificate that doctor has not been examined. The original certificate is not produced. The certificate is dated 30.4.2005. There is no proof after this date any certificate is produced. In the MACT case there was no mention of disability in the evidence. Therefore no compensation can be given. The accident occurred on 23.2.2005 and no claim has been made since then for personal injury. The Complainant has withdrawn the case from MVC in 2008. Therefore, the cause of action is not sustainable. There are two policies under this scheme, one is for the vehicle another is for personal accident. Ex.R-5 is the personal accident policy and Ex.C-1 is Motor Vehicle Policy. Accordingly the claim was settled in accordance with personal accident policy on full and final basis. The Complainant failed to produce driving licence. The Opposite Party relied on Section III(c) of Ex.C-1 and prayed that the claim is barred by limitation, there is no disability proof and the complaint is filed in December 2008. Therefore it may be rejected outright.

13. We observe from the documents and arguments of both the parties that the Complainant had filed a MVC Case before MACT, Kundapura and the Complainant had withdrawn the case from MACT. On perusal of the affidavit Ex.R-1, the affidavit sworn by the Complainant before the MACT states:
“I was walking along the road at the time when the said vehicle dashed me. I say that as an impact I sustained grievous injuries as stated in the would certificate”.

and the Ex.C-2 - FIR at page 2 & 3 states:
“1. DINESH NAYAK RIDER OF MOTOR CYCLE REG NO. KA 20-K 8736”.
“12. First Information Contents:
ON 23/02/05 AT 2.30 Hrs AT N.H.17, NEAR OLD POLICE STATION,
MANUR VILLAGE THE ACCUSED RIDER OF MOTOR CYCLE REG NO.KA
20-K 8736 RIDE THE3 SAID VEHICLE IN RASH AND NEGLIGENCE
MANNER AND DASHED THE PEDASTRIAN BY NAME NAGRAJ, WHEN HE
WAS WALKING ASIDE OF N.H.17. AS A RESULT THE ACCUSED RIDER
AND PILLION RIDER RAMESH PAI(COMPLAINANT BROTHER) FELL ON
ROAD WITH MOTORCYCLE AND INJURIES CASUED TO
HEAD, MOUTH, NOSE, HAND AND EAR OF COMPLAINANT BROTHER AND
ADMITTED TO K.M.C. MANIPAL FOR TREATMENT AND INJURIES CASUED TO HEAD OF PEDASTRAIN AND ADMITTED TO KUNDAPURA GOVT.
HOSPITAL AS INPATIENT ETC (COMPLAINT ATTACHED)”

Contd…………7

and the complaint at para 2 states:
“The Complainant while riding the said vehicle met with a road accident on 23.02.2005 at about 2.30 a.m. at NH 17, Opp. Old Police Station, Manur Kota, Udupi Taluk and sustained severe and grievous head injury and other injuries”.

14. On comparing these statements of the same person it makes clear that the Complainant has not come before the Forum with clean hands since his statements are not inconformity with one another. Therefore, we are of the opinion that the Opposite Parties settling the claim for Rs.1,200/- is not deficiency in service. The Opposite Party in the version and arguments submitted that the complaint is barred by limitation. Since the MACT case was withdrawn by the Complainant of his own, there is no order as to liberty to the complaint u/s Article 14 of the Indian Limitation Act to approach any other Forum for redressal of the complaint. In the circumstances, Complainant has no case to agitate. Hence we conclude that there is no deficiency in service by Opposite Party and there is no cause of action to the Complainant to file this complaint. Hence we answer point No.1 in the Affirmative and Point No.2 in the Negative.

Point No.3 & 4:
15. In view of the Affirmative answer to point No.1 and Negative answer to Point No.2, the Complainant is not entitled for any reliefs. Hence, point No.3 is answered in the Negative and pass the following:

ORDER

The complaint is dismissed. The Parties to bear their own cost.
(Order dictated to the Stenographer, after the same is typed, corrected and pronounced in the open court on this the 17th day of March 2009)

(BEKAL LAKSHMANA NAYAK) (P.C.GOPAL)

MEMBER PRESIDENT

ORDER

COMPLAINT FILED: 26.12.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 28th MARCH 2009 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 2806/2008


COMPLAINANT Sri. P. Manirajan, S/o. Palaniswamy, Residing at No. 71/10, Annipura Road, Sudhama Nagar, Bangalore – 560 027. Advocate (M.V. Nanjunda Gowda)

V/s.

OPPOSITE PARTIES
1. The Manager, Oriental Insurance Co. Ltd., No. 14-158/1, Palace Extension, Kuppam – 517 425 Chittor District. Andhra Pradesh.
2. The Manager, Oriental Insurance Co. Ltd., Reptd. by its Regional Office, No. 44/45, Leo Shopping Complex, Residency Road, Bangalore – 25. Advocate (Manoj Kumar M.R.)

O R D E R

This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay a sum of Rs.2,50,000/- towards the insurance claim along with litigation cost and for such other relief on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant is the R.C. Owner of the lorry bearing No. KA-05-A-2166. OP covered the insurance of the said vehicle which was valid from 13.05.2005 to 12.05.2006. Complainant entrusted the said lorry to one driver Dharnesh, who had a valid and effective driving licence to drive the said vehicle. In the month of December 2005 the Dharnesh after informing the complainant went to Channarayapatna, thereafter complainant did not hear about him. On enquiry complainant came to know that the said Dharnesh met with the motor cycle accident and died. In the meantime the lorry entrusted to Dharnesh was found missing. Then complainant lodged complaint to Wilson Garden Police Station, Bangalore on 21.04.2006. Police registered the C. Misc. Case, but unable to trace out the vehicle. Then he made a claim to the OP, OP failed to settle the insurance claim. Thus complainant felt the deficiency in service on the part of the OP. He felt the carelessness and negligence on the part of the Police concerned, hence he lodged a private complaint against them, which is pending for trial before the Magistrate Court. Complainant even got issued the legal notice to OP on 18.10.2008. Again there was no response. Under the circumstances he is advised to file this complaint and sought for the relief accordingly. 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant is bound by the terms and conditions of the policy. Complainant is expected to inform the OP about the loss or theft of the vehicle immediately, but he took his own sweat time of more than 2 years. So for so good complainant has not made any claim as contemplated by producing the necessary documents to settle it. Actually OP has not repudiated the claim. It is all because of the carelessness and negligence of the complainant himself, who kept mum for more than 3 years after the alleged loss of the said lorry he is facing the problem and inconvenience. Complaint is barred by time. Complainant says that he has filed a private complaint against the Police and one Dharnesh, which is pending before the Magistrate Court. Complainant has failed to establish the deficiency in service on the part of the OP. When the complainant has not fulfilled the terms and conditions of the policy, he is not entitled for the settlement of the claim. The complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.



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


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


5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Negative Point No.2:- Negative Point No.3:- As per final Order.


R E A S O N S


6. At the outset it is not at dispute that the complainant is the R.C. Owner of the vehicle bearing No. KA-05-A-2166 and OP covered the insurance of the said lorry which was valid from 13.05.2005 to 12.05.2006. Now it is the contention of the complainant that he entrusted the said lorry to one Dharnesh the driver who possessed the valid and effective driving licence in the year 2005. For this contention basically there is no proof. Further complainant says in the month of December 2005 the said driver Dharnesh informed him that he is going to his native place Dodderi Kaval Village, Channarayapatna for Sankranthi Festival and he will be back soon. For this submission also there is no proof. Complainant waited for some time, but his driver did not return. On enquiry he came to know that he met with a road traffic accident and succumbed to the injuries. When the said accident took place, at what place, at what time is not known. No document is produced to that effect.


7. Further complainant says that in the month of April when he did not trace the driver and the lorry, he filed a missing complaint to the Police. What made him to keep mum for more than 4 months without initiating criminal action and without intimating the OP about the loss or the theft of the said lorry immediately is not known. A complaint was lodged to the Police Commissioner, copy is produced. Why Police registered only C. Misc. complaint and failed to register the regular case of theft and issue FIR is not known. So OP is kept in dark about the loss of the said lorry or of the theft. So for so good the concerned Police are unable to apprehend the accused, trace out and recover the property. For that OP cannot be blamed. Further complainant himself says that he lodged a criminal complaint against the said Dharnesh who is no more and the Wilson Garden Police Station S.H.O. and that complaint is pending for trial. So all these acts and deeds of the complainant is nothing to do with the OP.


8. As per the terms and conditions of the policy it is incumbent upon the complainant to inform the OP about the theft or loss or damages caused to the said vehicle immediately. Though complainant says that the said theft was occurred in and around December 2005, for the first time he informed the OP by causing the legal notice on 18.10.2008 that is nearly after lapse of about 3 years and this complaint is filed in the year 2008. Under such circumstances we find there is a substance in the defence set out by the OP that the complaint is barred by time. So for so good, complainant has not made the claim to the OP in a prescribed performa by furnishing all the necessary documents. There is no proof that OP has repudiated the said claim at any point of time. That means to say complainant did not accrue any cause of action to initiate this complaint. Even today the rights of the complainant are still open to submit the claim petition to OP along with the required documents for processing, for considering and settling the said claim under the purview of law and terms and condition of the policy. When such an equally efficacious relief is readily available to the complainant to redress his grievance, in our view the present complaint appears to be devoid of merits.


9. As already observed by us in the above said paras, there is no proof of deficiency in service. As the complainant has not made claim as contemplated. No fault lies with the OP in considering the same. There is no repudiation of the said claim. Under such circumstances complaint appears to be premature. Hence for these reasons we find the complainant is not entitled for the relief claimed. In view of our observations made in the body of the order complainant has got the equally efficacious relief to redress his grievance he can do so, if so advised. With these observations we answer point nos.1 and 2 accordingly and proceed to pass the following:


O R D E R


The complaint is dismissed. In view of the nature of dispute no order as to costs. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 28th day of March 2009.)

-: ORDER:-

This complaint is filed for a direction to the Opposite Party to pay Rs.6,70,000/- with interest thereon at 18% Per Annum from the date of complaint on the following grounds:-
2. The case of the complainant is as under:-
The complainant had purchased a survey instrument bearing No.Lecia TC1201 Total Station Instrument Sl.No.222491 along with accessories from Elcome Technologies Pvt. Ltd., for Rs.6,70,000/- on 11.11.2006. The said instrument along with other two instruments was got insured with Opposite Party on 04.01.2007. On 16.01.2007 while the employees of the complainant were doing survey work given by RITES Ltd., on R.V.Road, Bangalore at about 10.45 a.m. a two wheeler rider drove his vehicle in a rash and negligent manner and dashed against the said instrument stand. As a result, the instrument stand as well as the instrument fell down and got damaged. The rider of the two wheeler fled away from the scene. The employee of the complainant lodged the complaint with Basavanagudi police on the same day and the complaint was registered as C.Mis.No.3/2007 at about 4.45 p.m. The complainant informed the authorities of the insurance company over phone regarding the accident and asked for the advice. He was advised to send the instrument to the company which supplied it and assess the quantum of damage and that they will deploy one of the surveyors to inspect the damaged instrument at Gurgaoun, HaryanaState where the Head Office of Elcome Technologies Pvt. Ltd is situated. Believing the assurance of the Opposite Party, the complainant sent the instrument to Guragon, Harrying on 17.01.2007. Elocme Technologies Pvt., Ltd., returned the damaged instrument with covering letter dated:30.01.2007 stating that the damage to the instrument is beyond economical repair. The Opposite Party deputed Mr.Aravind R.Nayak a surveyor who conducted the survey of the damaged instrument on 31.08.2007. The complainant provided all the details required by the surveyor and addressed the letters dated:08.01.2008, 10.01.2008, 25.02.2008, 20.03.2008 and 12.06.2008 to the Opposite Party. By the letter dated:07.07.2008, the Opposite Party repudiated the claim. The reasons narrated by the Opposite Party for repudiating the claim are very flimsy and are not reasonable. He sent another letter dated:05.08.2008 demanding the Opposite Party to consider the claim. The Opposite Party sent reply dated:26.08.2008 confirming the earlier decision as undertaken in the letter dated:07.07.2008. At the time of insuring the instrument, the agent of the Opposite Party had inspected the same and verified the concerned bills and papers and had collected the premium. It is thereafter the insurance policy was issued. When the instrument met with a road accident, the Opposite Party started giving some or the other reasons in order to deny the genuine claim and thereby cause loss, injury and hardship to the complainant. Even now the damaged instrument is lying idle. Hence, the complaint.
3.In the version, the contention of the Opposite Party is as under:-
The contention of the complainant that he purchased the instrument in question along with accessories for Rs.6,70,000/- as per the bill dated:07.11.2006 is denied. The bill dated:07.11.2006 does not bear the signature and the seal of the company from which the complainant purchased the instrument. In spite of demand, the complainant failed to furnish the original bill. Without disclosing the true facts, the complainant had obtained the insurance policy from the Opposite Party on 04.01.2007. The policy was obtained without furnishing the receipt dated:07.11.2006 and without producing the instrument for inspection. The alleged accident dated:16.07.2007 is denied as false and no such accident had taken place on the said date. The complaint alleged to have been filed on 16.07.2007 before Basavanagudi police is denied as false. No FIR has been submitted by police pursuant to the complaint and the complainant has not furnished the details of the accident to police. The acknowledgment in C.Mis.No.3/2007 has been obtained by the complainant with intention to claim the insurance amount. The complainant did not intimate the Opposite Party about the alleged accident and no instructions were given to the complainant to send the instrument to the Company for necessary repairs. The contention that the Company returned the instrument on 30.01.2007 intimating that the instrument is beyond repairs is denied as false. The complainant did not provide the instrument for physical verification by the surveyor at the time of inspection. By the letter dated:02.01.2008, the surveyor called upon the complainant to furnish necessary particulars. But the complainant has not furnished the particulars till today. In spite of repeated demands and requests, the complainant did not furnish the details as called for by the Opposite Party. Having found that the complainant had obtained the insurance policy without disclosing the true facts, did not intimate the incident in time, did not provide the instrument for inspection the claim was repudiated on 17.07.2008 and the same is just and proper. The instrument was not damaged in the accident dated:16.01.2007. It appears that the complainant had obtained the insurance policy in respect of the damaged instrument. Therefore, there is no deficiency in service on the part of the Opposite Party and the complaint is liable to be dismissed.
4.In support of the respective contentions, both parties have filed affidavits. The complainant has produced copies of documents. The Opposite Party has not produced any documents. The learned counsel on both sides have filed written arguments.
5. The points for consideration:-
1.Whether the complainant has proved deficiency in service on the part of the Opposite Party?

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

6.Our findings are:-

Point No.1 : In the Affirmative

Point No.2 : As per final order

For the following:-

-:REASONS:-

7. The fact that the survey instrument belonging to the complainant was insured with Opposite Party and the insurance policy was in force as on the date of alleged accident is not disputed. In support of the contention that the rider of a two wheeler dashed against the instrument on 16.01.2007 at about 10.45 a.m. and as a result the instrument fell down and sustained damages, the complainant has produced the copy of the complaint given to police on 16.01.2007. Though the complaint was lodged alleging the accident by a two wheeler, it is not known why the policy registered the complaint only as C.Mis. It is the specific contention of the complainant that soon after the accident he informed the Opposite Party for further course of action, he was advised to send the instrument to the company which supplied it with assurance to send one of the surveyor to inspect the instrument at Guragon and therefore he sent the instrument to Guragon on 17.01.2007. In the letter dated:08.01.2008 also the complainant informed the surveyor appointed by the insurance Company that as per the advise of the Insurance Company the damaged instrument was sent to the Company for assessment of damage and after inspection, the company returned the instrument along with the letter dated:30.01.2007 informing that the instrument is beyond economic repairs. The surveyor appointed by the insurance company had addressed a letter to the complainant on 02.01.2008 disclosing that he conducted survey of the instrument on 31.08.2007. Therefore, when the surveyor himself admitted for having inspected the instrument on 31.08.2007, we do not find any substance in the contention of the Opposite Party that the instrument was not made available to the surveyor for physical verification as has been contended in para-6 of the version. It also becomes difficult to believe the contention of the Opposite Party in para-2 of the version that the complainant had not furnished the receipt dated:07.11.2006 and had not produced the instrument for inspection at the time of obtaining the insurance policy. When the Opposite Party admits for having issued the insurance policy, it has to be presumed that only after verifying the necessary documents and inspecting the instruments, the Opposite Party had issued insurance policy. We also do not fined any substance in the contention of the Opposite Party that the bill towards purchase of the instrument did not contain the signature and seal of the company, because the copy of the invoice dated:07.11.2006 contains the signature of the authorized signatory of the company. We also do not find any substance in the contention of the Opposite Party that the complainant failed to furnish the particulars required by the surveyor as per the letter dated:02.01.2008 because form the copies of the documents produced by the complainant it is seen that on receipt of the letter dated:02.01.2008 from the surveyor, the complainant furnished the particulars through the letter dated:08.01.2008 and 10.01.2008. In the letter dated:02.01.2008 the surveyor himself has clearly mentioned that he conducted the survey of the instrument on 31.08.2007 which is about eight months after the date of the alleged accident in which the instrument was damaged. In the version, the Opposite Party has not disclosed when they appointed and deputed the surveyor to assess the damage caused to the instrument. In spire of the fat that the surveyor inspected the instrument on 31.08.2007 the report submitted by the surveyor is not produced by the Opposite Party and the same is withheld. The Insurance Company took one and half years from the date of the accident to repudiate the claim. The Opposite Party repudiated the claim only on 07.07.2008. This inordinate delay in taking decision on the claim itself amounts to deficiency in service on the part of the Opposite Party. Even in the letter dated:07.07.2008, the Opposite Party has stated that for repudiating the claim, the report of the inspector and surveyor was taken into consideration. This makes it clear that the surveyor had submitted the report. But for the reasons best known to it, the Opposite Party has withheld production of the report submitted by the surveyor. As a consequence, we have no opportunity to consider the report submitted by the surveyor with regard to the damage to the instrument. From a reading of the letter dated:07.07.2008 we are unable to make out that the op repudiated the claim on reasonable grounds that too one and half years after the alleged accident. In this view of the matter, in our opinion the repudiation of the claim by the Opposite Party is not on valid or acceptable grounds and therefore the act of the Opposite Party amounts to deficiency in service. In the letter dated:30.01.2007, the Company which supplied the instrument to the complainant has clearly mentioned that the instrument is beyond economic repairs. In that event, the Opposite Party has to settle the claim on total loss basis. This conclusion is inevitable because the Opposite Party has withheld production of the report submitted by the surveyor disclosing the damage caused to the instrument in the accident. As per the invoice, the value of the instrument is Rs.6,70,000/-. Therefore, the complainant is entitled to claim Rs.6,70,000/- from the Opposite Party on total loss basis. On settlement of the claim, the complainant is liable to surrender the damaged instrument to the insurance company. In the result, we pass the following:-

-:ORDER:-

• The complaint is ALLOWED.
• The Opposite Party is directed to pay Rs.6,70,000/- to the complainant under the insurance policy towards damage to the survey instrument on total loss basis together with interest at 6% Per Annum from 16.01.2007 till the date of payment subject to the complainant surrendering the damaged instrument. The Opposite Party shall also pay costs of Rs.2,000/- to the complainant. Compliance of this order shall be made within eight weeks from the date of communication.
• Send a copy of this order to both parties free of costs immediately.
• Pronounced in the Open Forum on this the 30th DAY OF MARCH 2009.

Sd/- Sd/-
MEMBER PRESIDENT

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA

No.2083/1, Subhash Nagar, 1st Cross, Mandya-571401

consumer case(CC) No. CC/08/135

Sri.C.D.Mariswamy
...........Appellant(s)
Vs.

The Oriental Insurance Co., Ltd.,

Oriental Insurance Co.,
...........Respondent(s)

BEFORE:
1. Smt.A.P.Mahadevamma
2. Sri.M.N.Manohara
3. Sri.Siddegowda


Sri.Siddegowda, President

1. This complaint is filed under section 12 of the Consumer Protection Act 1986, for insurance claim of Rs.1,25,000/- with compensation of Rs.25,000/-.


2. The case of the complainant is that he is the owner of Tractor and Trailer bearing Reg. No.KA-11-7150-7151. The said vehicle was insured with the Opposite party Insurance Company under policy No.422800/47/ 2007/36 valid from 03.05.2006 to 02.05.2007. The driver of the tractor and trailer namely Sri.C.D.Ravi had parked the trailer on 07.04.2007 near Garibi Colony, Rudrakshipura Village bringing the tractor near the house of the complainant. On the next day, he noticed missing of the trailer and the complainant made search for the said vehicle and it was not traced out. So, he lodged a complaint before the Maddur Police in Crime No.179/2007 and after investigation, police filed C-report to the Court, stating that trailer could not be traced out. The complainant submitted necessary documents along with the claim form to the 1st Opposite party for settlement of the claim. The Opposite party has repudiated the claim stating that vehicle was being used for commercial purpose, which is false. The repudiation of the claim is illegal. Therefore, the present complaint is filed.


3. The Opposite party has filed version. Admitting that the tractor and trailer were insured with the Opposite party Insurance Company for a period from 03.05.2006 to 02.05.2007, but the vehicle was insured under Kissan Package Insurance which covers only the agricultural purpose and the premium for the policy was paid by the complainant only for the said purpose and not for any commercial purpose. The vehicle was not comprehensively insured. According to the complainant and also records, the complainant had hired the said vehicle to brick factory belonged to one Sri.Ramalingaiah and on 07.04.2007 when he parked the said vehicle at factory premises it was stolen. The Opposite party denies the theft of the vehicle and alleges nexus between the owner and the thief. Even, if the vehicle has been stolen, the Opposite party was not under obligation to indemnify, since there is breach of conditions, because within 24 hours of loss, complaint should be filed to the police. Further, notice shall be given in writing to the company immediately upon the occurrence of the loss or theft. But, the complainant gave the complaint of theft to the police on 25.04.2007 after lapse of 18 days and also Opposite party has not received any kind of intimation regarding theft of the vehicle from the complainant and only on 26.04.2007 the same was brought to the knowledge of the complainant. After scrutinizing the records and investigation report, the Opposite party repudiated the claim for violation of the conditions. There is no deficiency in service. Therefore, the complaint is liable to be dismissed.


4. During trial, the complainant is examined along with one witness and complainant produced Ex.C.1 to C.6 documents. On behalf of the Opposite party one witness examined and Ex.R.1 to R.4 documents are produced.

5. We have heard both sides.

6. Now the points that arise for our considerations are:- 1. Whether the repudiation of the claim by Opposite party is proper? 2. Whether the Opposite party has committed deficiency in service? 3. Whether the complainant is entitled to the insurance amount?

7. Our findings and reasons are as here under:-

8. The undisputed facts are that the complainant is the owner of the Tractor and trailer bearing Reg. No.KA-11-7150-7151 and the said vehicles were insured with the Opposite party for a period from 03.05.2006 to 02.05.2007.

9. According to the complainant, on 07.04.2007 the driver had parked the trailer near Garibi Colony, Rudrakshipura Village and next day it was missing and complainant made search and it was not traced out, thereafter, he lodged a complaint on 25.04.2007. Ex.C.1 & C.2 reveals that the Maddur Police has registered FIR No.349/2007 and after investigation have submitted the C-report as the vehicle was not traced and the Court has accepted the same. Further, according to the complainant, he submitted the claim form with necessary documents to 1st Opposite party for settlement of the claim. But, the Opposite party repudiated alleging that the vehicle was being used for commercial purpose.


10. According to the complainant, the repudiation is illegal, because the vehicle was not at all used for hire purpose and the vehicle was stolen which was parked near Garibi Colony, Rudrakshipura. But the contention of the Opposite party is that in the complaint before the police, it is clearly stated that tractor and trailer was left for hire to brick factory of Sri.Ramalingaiah which is near Garibi Colony of Rudrakshipura and on 07.04.2007 after working till evening as usual the trally was parked in the brick factory and driver brought the engine near the house and since the next day was Sunday which is a holiday he did not go to factory and he went to factory on Monday morning but the trally was not there and searched and not traced. Further, even in the letter by the complainant to the Opposite party as per Ex.R.4, it is clearly stated that after completing the work in brick factory till evening on 07.04.2007 as usual the trailer was parked there and engine was brought to their house, since Sunday was holiday he did not go to factory and then on Monday i.e., 09.04.2007 morning when he went to factory, the trally was not there and his brother, the driver of the tractor informed the same to the complainant and they searched, but was not traced, therefore it was stolen and complaint was lodged to the police. So, on the basis of averments made in the complaint to the police and Ex.R.4 letter to the Opposite party by the complainant, it is contended by the Opposite party counsel that the vehicle was used for commercial purpose, though the tractor was insured under Kissan Package Insurance which covers only the agricultural purpose and the premium for the policy was paid for the said purpose only and not for any commercial purpose and hence, the claim was rightly repudiated by the Opposite party, because of the violation of the terms of the policy. The Opposite party has produced Ex.R.1 Kissan Package Insurance policy brochure which reveals the conditions and Ex.R.2 is the policy issued to the complainant’s vehicle under Kissan Package Insurance Policy. Though the complainant has deposed that the tractor and trailer were not at all used for commercial purpose i.e. hire to the brick factory, but there is clear admission in the complaint before the police and also in the letter Ex.R.4 that the tractor and trailer were hired to brick factory work and therefore, the trailer was parked in the brick factory premises. As per the decision of Hon’ble National Commission in R.P.No.681/2006 decided on 23.10.2008, the statement given by the complainant in FIR before the police is admissible before the Forum.

Therefore, it proves that the trailer of the complainant was stolen when it was parked near the brick factory which was hired to the brick factory owner and so it was commercial purpose. Though, it is established that the vehicle was stolen when it was being used for commercial purpose, we have to consider Ex.R.1 Kissan Package Insurance Policy and Ex.R.2 the policy given to the complainant. In Ex.R.2 the policy in respect of the complainant’s vehicle, the agricultural implements, the tractor and trailer were insured for Rs.5,06,500/- and premium of Rs.8,100/- has been paid, but no conditions are imposed in the policy Ex.R.2. Even in Ex.R.1, the Kissan Package Insurance Policy brochure at Section XV in respect of agricultural tractors, no conditions are imposed not to use for any other purpose other than agriculture.

It is commonly known that agricultural operations will be carried only for a limited period and not through out the year and therefore, the tractor and trailer cannot be used for agricultural purpose through out the year and to meet the expenses and also payment of loan for the tractor, the farmers use the tractor and trailer for other purpose like; transporting sand, mud, bricks, stones etc. When there is no specific condition in the policy Ex.R.2 that the tractor and trailer should be not used for any other purpose other than agriculture, it cannot be said that the complainant has contravened the terms of the insurance policy. Even though, there is some delay in lodging the complaint to the police about the theft of the trailer and information to the Opposite party about the theft it is only 15 days and according to the evidence of the complainant, he was making search in the neighbour area and thereafter he lodged the complaint.

There is no evidence by the Opposite party that there is difference of premium amount for the insurance, in case tractor used for agricultural purpose only and extra premium will be levied, in case tractor used for other purpose apart from agriculture. So, when there is no prohibition in the Insurance Package Ex.R.1 and the policy Ex.R.2 not to use the tractor and trailer for any other purpose other than agriculture and in the policy no conditions is laid down, the Opposite party is not able to point out which condition of the policy is violated by the complainant. Under these circumstances, when there is no breach of law or breach of policy and when the theft of trailer is proved, the repudiation by the Opposite party is not justified and therefore, the Opposite party has committed deficiency in service in repudiating the claim.


11. The complainant has sought for Rs.1,25,000/- as the cost of trailer and compensation of Rs.25,000/- for mental agony. The price of the trailer is not disputed by the Opposite party at all. There is no evidence that it is a old trailer and depreciation has to be made. Under these circumstances, the Opposite party is liable to pay the insurance amount of Rs.1,25,000/-. The complainant has sought for compensation of Rs.25,000/- for mental agony and shock, but under these circumstances of the case, the complainant is not entitled to the compensation.

12. In the result, we proceed to pass the following order; ORDER The complaint is allowed, directing the 1st Opposite party to pay insurance amount of Rs.1,25,000/- with cost of Rs.2,000/- within 6 weeks from this day, failing which it is liable to pay interest at 9% p.a. from the date of complaint till realisation. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 12th day of March 2009). (PRESIDENT) (MEMBER) (MEMBER)




......................
Smt.A.P.Mahadevamma

......................
Sri.M.N.Manohara

......................
Sri.Siddegowda

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MYSORE

No.845, 10th Main, New Kantharaj Urs Road, G.C.S.T. Layout, Kuvempunagar, Mysore - 570 009

consumer case(CC) No. CC/08/388

Prahalad Karanum
...........Appellant(s)
Vs.

Oriental Insurance Co. Ltd & one another

Heritage Health Service Pvt. Ltd.,
...........Respondent(s)

BEFORE:
1. Smt.Y.V.Uma Shenoi
2. Sri D.Krishnappa
3. Sri. Shivakumar.J.

Complainant Prahalad Karanum, S/o Late K.Narayana Rao, R/at No.2870/1, 10th Cross, 6th Main Road, V.V.Mohalla, Mysore-570002. (By Sri.C.S.Amar., Advocate)

Vs.

Opposite Parties 1. Branch Manager, Oriental Insurance Company Ltd., D.O.H. 2903, 1st Floor, New Muslim Hostel, Complex-1, Main, Saraswathipuram, Mysore-09 2. Incharge Manager, Heritage Health Service Pvt. Ltd., No.1102, Raheja Chambers, Free Press Journal Road, Nariman Point, Mumbai-400002. (By Sri.Jaganath Suresh Kumar., Advocate for O.P.1 and O.P.2 - EXPARTE)


Nature of complaint : Deficiency in service Date of filing of complaint : 04.12.2008 Date of appearance of O.P. : 13.01.2009 Date of order : 26.03.2009 Duration of Proceeding : 2 MONTHS 13 DAYS PRESIDENT MEMBER MEMBER Sri.D.Krishnappa, President


1. The grievance of the complainant who has filed this complaint against the opposite parties is, that he had visited USA during December 2006 and returned to India on 03.05.2007. That before leaving India he had obtained an Overseas Mediclaim Policy from first opposite party for a sum of 5,00,000/- US dollars by paying a premium of Rs.31,759/-, a total premium and the policy was valid from 07.12.2006 to midnight on 04.06.2007. Before he took the Mediclaim policy his health condition was fully checked up by the doctor who has given a certificate, certifying that he was in good health. During his stay in USA his health condition became worse and got admitted to Alexian Brothers St. Alexius Medical Center and was an inpatient from 28.02.2007 to 08.03.2007 and incurred a total expenditure of 52,686.78 US dollars. Then he approached the first opposite party several times for reimbursement of that amount, but the second opposite party vide his letter dated 23.05.2007 stating that policy carries specific exclusion for heart and circulatory dis-orders has repudiated his claim. Therefore, he by attributing deficiency to the opposite parties and collusion between them has prayed for a direction to the opposite parties to pay him Rs.19,50,000/- as against the total amount he is entitled Rs.26,18,405.10 by restricting his claim.


2. The second opposite party who is duly served with the notice of this complaint has remained absent is placed exparte. The first opposite party has appeared through his advocate and filed version contending that their liability under the policy is strictly as per the terms, conditions, exclusions and endorsements contained in the policy and has stated that policy excludes All heart and circulatory dis-orders and the same is incorporated in the policy and the doctor who examined the complainant before the inception of the policy given the report that complainant was havi9ng hypertension for the last 10 years and was under treatment for the said ailment. That the second opposite party is an independent company registered under the Companies Act is a third party administrator. Any claim of a person taking an Overseas Mediclaim Policy from them with all documents will be forwarded to second opposite party who handles all the claims arising under the policies. That second opposite party has team of doctors who scrutinize every mediclaim and decide on merits. That they came to know that the complainant preferred a claim with the second opposite party in connection with the treatment, the complainant had at USA and that the second opposite party after considering specific exclusion under the policy and by taking opinion of the doctors have turned down the claim of the complainant. Medical records of St. Alexius Medical Center of USA reveal that the complainant had Hyponatremia secondary to nausea and vomiting, related increased ADH HCTZ use and volume depletion and that reveal that hyponatremia which is related use of HCTZ a medication used for the treatment of hypertension, which is excluded from the scope of the policy. This opposite party further denying other allegations of the complainant has stated that there is no cause of action for the complainant and further denying their liability has prayed for dismissal of the complaint.


3. In the course of enquiry in to the complaint, the complainant and the Divisional Manager of the first opposite party have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced a mediclaim policy, letter of repudiation issued by the second opposite party, hospital records where the complainant took treatment at USA including the bills. The first opposite party has produced copy of the proposal form given by the complainant, copy of the policy, terms and conditions of the policy. The counsel for the complainant has filed written argument. Heard the counsel for both the parties further and perused the records.


4. On the above contentions, following points for determination arise. 1. Whether the complainant proves that the first and second opposite parties have caused deficiency in their service in repudiating his claim for reimbursement of the medical expenditure on the ground that the complainant had suffered heart and circulatory dis-orders, which are excluded under the policy? 2. To what relief, the complainant is entitled to?


5. Our findings are as under:- Point no.1 : In the Negative. Point no.2 : See the final order. REASONS


6. Point no. 1:- The fact that the complainant had taken an Overseas Mediclaim Policy from the first opposite party, the policy was valid from 07.12.2006 to midnight of 04.06.2007 and that the second opposite party is the third party administrator health services is not in dispute. Similarly, that health policy taken by the complainant was covering for a sum 5,00,000/- US dollars is also not in controversy. The complainant contending to had suffered from ill-health while he was in USA was under treatment during December 2006 that is during the validity period of the insurance policy is not disputed by the opposite parties and that the complainant incurred 52,686.78 US dollars as medical expenditure is also not in dispute. But, the problem started when the claim of the complainant for reimbursement of the aforesaid medical expenditure was repudiated by the second opposite party vide their repudiation letter dated 23.05.2007. The second opposite party administrator of health services by contending that “The policy carries specific exclusion of all medical expenses incurred due to past history, ailments and any consequences attributable to accelerated by or arising there from as per the medical history.” Further stated that the policy carries specific exclusion of heart and circulatory dis-orders and therefore they are not liable to reimburse the money. The complainant questioning this repudiation of the second opposite party has come up with this complaint. Therefore, this Forum is required to find out whether repudiation of the claim of the complainant for the reason assigned by them amounts to deficiency or whether the opposite parties have acted under the conditions of the policy.



7. Admittedly, the medical policy issued in favour of the complainant contain excluded diseases, which says “This policy excludes all heart and circulatory dis-orders.” The learned counsel representing the complainant in support of his contention in the written arguments and also orally submitted that the complainant though was a patient of hypertension, but that is nothing to do with the disease, for which the complainant has taken treatment, by further stating that hypertension is a common phenomena with most of the people and that is not a disease and thus submitted for allowing the complaint. The complainant and the first opposite party have also produced reports of St. Alexius Medical Center of USA where the complainant took treatment from 02.08.2007 till he was discharged. These diagnosis assessment and reports of the hospital where the complainant took treatment are produced by the complainant himself and they are not in dispute. Wherein the doctors of St. Alexius Medical Center, USA have noted down the past history of the complainant as hypertension on hydrochlorothiazide and it is further recorded that the complainant was taking medicines including hydrochlorothiazide. Further the case sheet produced by the complainant reveal that the complainant had past history of hypertension on a beta blocker and thiazide and the doctors of USA hospital diagnosed the disease of the complainant as hyponatremia and the same was complicated by on going administration of thiazide diuretic at home. If the case sheet of St. Alexius Medical Center it is observed that emsis probable cause of hyponatremia along with antihypernatremia medicines and the complainant problem was assessed as hyponatremia secondary to nausea and vomiting related increased ADH HCTZ use and volume depletion. HCTZ is often used in the treatment of hypertension, congestive heart failure symptomatic adema prevention on kidney stones. It is not in dispute that the complainant was taking for a long period HCTZ and its use for a long period found to have led to hyponatremia.


8. The counsel appearing for the complainant in support of his arguments that hypertension is not a disease and it do not amounts to heart disease has relied on a decision reported in I (2008) CPJ page 258 and he has also relied upon the decisions reported in CPJ 2008 (III) page 423 of Delhi State Consumer Dispute Redressal Commission, I (2007) CPJ page 57 of NC, I (2007) CPJ page 260 of Punjab State Consumer Dispute Redressal Commission, and III (2007) CPJ page 320 NC. But, none of these decisions relied upon by the counsel for the complainant are helpful to the case on hand. Because in those cases, the contention of the insurance company that the complainant had pre-existing disease has been rejected by the State and National Commissions as the insurance company had not proved those consumers were suffering with any pre-existing diseases, by producing acceptable materials. In the case on hand prior to the inception of the policy the complainant was subjected to medical test by the second opposite party and found that the complainant had hypertension for quite long period and was also under medication policy was issued excluding heart and circulatory dis-orders. This exclusion, which is incorporated in the policy itself, was within the knowledge of the complainant. It is not the case of the complainant that he did not have this hypertension since long time and he was getting it in intermittently. On the contrary, as revealed from the medical records, the complainant has long history of hypertension and was under medication at home. It is further stated in the medical records of the complainant, that taking of ADH and HCTZ has resulted in hyponatremia, which is nothing but circulatory dis-order and heart disease. Suffering with hypertension for quite long period can be held has heart disease and that since has been excluded under the terms of the policy, the complainant is not entitled for reimbursement of the expenditure he has incurred for such disease and therefore repudiation of the claim by the opposite parties cannot be termed as deficient. As the result, we answer point no.1 in the negative and thereby pass the following order:-


ORDER 1. The Complaint is dismissed.

2. Parties to bear their own costs.

3. Give a copy of this order to each party according to Rules.

Complainant:

Mr. D.K. Shetty
114, Smilee Greens,
Huskar Road
Goolimangala
Bangalore- 560 099

/vs/

Opposite Parties:

1.The Oriental Insurance Co. Ltd.,
City Branch IX
1 and 2, II Floor
Hosur Road
Opp. 9th Cross
Wilson Garden
Wilson Garden Post
Bangalore- 560 027

2.M/s. Raksha TPA Pvt. Ltd.,
No.25, Ashirwad 1st Floor
29th Main, 4th B Cross
2nd Stage BTM Layout
Bangalore- 560 076

O R D E R



SRI. G. SIDDANAGOUD, PRESIDENT:

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the Opposite parties (Ops in short) for the payment of Rs.5,84,000/-.

The brief facts of the case are that the complainant has been a customer of the Op 1 since 2005. The complainant took a policy for himself under Mediclaim Insurance Policy (Individual) on 07/03/2005 (hereinafter the policy), currently being Policy No.421402/48/2008/883. The above policy covers the complainant and his wife up to a sum of Rs.5,00,000/- each for any hospitalization expenses for medical/surgical treatment at any Nursing Home/Hospital in India. The policy has been renewed by the complainant regularly every year since 2005, and the complainant has been regularly paying all the premiums payable under the policy since 2005. The last premium of a sum of Rs.38,074 was paid by the complainant on 03/03/2008. The policy period ends on 06/03/2009.

In 2008 the complainant’s wife had severe knee trouble. She was admitted in Sparsh Hospital, 29/P2, the Health City, Hosur Road, Bommasandra, Bangalore for Bilateral Total Knee Replacement Surgery on 04/05/2008. The total surgery costs were Rs.3,70,000/-. In addition to this, along with the expenses for medicines, nursing services etc., the total expenses amounted to Rs.4,02,000/-. The complainant’s wife was released on the 11/05/2008 after the surgery. After the surgery, Mrs. Latha D. Shetty was admitted again in the same hospital for Post-Surgery treatment on 25/06/2008. She was discharged from the hospital on 26/06/2008. The total cost for the Post Surgery treatment amount to almost Rs.2,50,000/-. Therefore the total medical expenses towards this treatment was approximately Rs.6,50,000/-.

The complainant requested Sparsh Hospital to process the bills for the above mentioned medical expenses through the office of the OP NO.1 and get the bills paid under the Policy with the Op 1. Therefore, the Hospital submitted a Pre-authorization form to the Op NO.2, the TPA for clearance of the expenses till the surgery and medicines amounting to Rs.4,02,000/-. To the utter shock of the complainant, he was informed by Sparsh Hospital that the claim was refused by the Op. The said Sparsh Hospital, had received a letter from the Op2 dated 30/04/2008 stating that for the policy taken by the complainant any claims towards ‘Bilateral Knee Replacement’ would be payable only after four continuous renewal of the Policy from the date of inception. On this alleged ground, payment under the above Insurance Policy was denied for the medical expenses of the complainant’s wife.

Under the policy taken by the complainant, the complainant and the complainant’s wife, are insured against any hospitalization expenses up to Rs.5,00,000/- each. The Contract entered into by the complainant and the Op 1, when the complainant became the Op1 customer on 3/3/2005, has an exclusionary clause which lists out the expenses which are not covered by the policy, it is pointed out there is nothing in the Policy which the complainant signed in 2005, which excludes Bilateral Knee Replacement Surgery, nor did it state that such surgery would be paid for only after four continuous renewals of the policy. In order to avail of the Insurance, which was rejected without any legal grounds by the Op 2, the complainant made several calls to the Ops claiming reimbursement under his Insurance Policy commencing from 30th April 2008 onwards. Upon not receiving any positive response, on 19/05/2008 the complainant sent a letter to the Op No.1 Insurance Company, along with all the documents and bills relating to the surgery and treatment of his wife at Sparsh Hospital and requested the Op to settle the bills at the earliest. The bills for the post surgery treatment were sent later, as the treatment was still going on. The total expenses, amount to Rs.6,50,000/-. However, under the said Policy, the Op 1 was obliged to reimburse expenses upto Rs.5,00,000/-. However, there was no response to this letter from the Ops.
As the complainant did not receive any response from the Op No.1 thereafter the complainant issued a legal notice through his advocate to the Ops on 02/09/2008 informing the Ops of their serious breach of contract that the Op NO.1 had entered into with the complainant and a grave negligence and inaction on their part and called upon the OP No.1 to settle the bills of the complainant’s wife’s Surgery and medical expenses at Sparsh Hospital and the other bills connected with the post-surgery treatment of the Complainant’s wife upto Rs.5,00,000/- due to the complainant within two weeks of the receipt of the notice. However, despite this legal notice, the complainant has received no response from either of the Ops. Hence the complainant approached this forum.

Notices were sent to the Ops 1 and 2 through RPAD, the same was served on them. On the date of version, none appeared on behalf of Ops 1 and 2 and no statement of objections were filed. Hence both Ops placed ex-parte. Complainant gave his evidence by way of affidavit. Heard arguments of the learned counsel for complainant.

As per the individual mediclaim policy, the complainant and his wife were covered under the policy and the sum assured was Rs.5.00 lakhs each. When the treatment was taken by the wife of the complainant, the policy was in force since 2005. The complainant was a customer of Op1 and every year he renewed the said policy. The document produced by the complainant clearly discloses that the wife of the complainant has taken the treatment for the replacement of the knee under the surgery. The claim was also made to the Ops for the reimbursement of the cost of the surgery and also post operative treatment cost incurred by the complainant. Even though the expenses were beyond the sum assured under the policy, the complainant restricted his claim to the sum assured under the policy for Rs.5.00 lakhs. The main contention of the OP for the repudiation of the claim was that the said ailment payable only after 4 continue renewal in the policy from the date of inception. The Ops have not referred any clauses of the terms and conditions of the policy in the said repudiation letter. When we peruse the terms and conditions produced by the complainant nowhere it is mentioned about the contention taken by the Ops for the repudiation of the claim. When there is no condition or clause in the agreement it is the bounden duty of the Ops to reimburse the amount spent by the complainant for the treatment of his wife who is also covered under the policy. Non-payment of the said amount definitely amounts to deficiency in service on the part of the Ops.

These facts have not been specifically denied by the Ops. Even though the notices were served on them, they remained absent and failed to submit their statement of objection to rebut the evidence of the complainant. In the absence of specific denial by the Op, the evidence given by the complainant is unchallenged.

In view of the discussions made above, we are of the opinion hat the complainant has proved the deficiency in service on the part of the Ops. Accordingly, we pass the following

O R D E R

Complaint is allowed. Opposite parties 1 and 2 are jointly and severally liable.

Opposite parties 1 and 2 are directed to reimburse an amount of Rs.5.00 lakhs (Rupees Five Lakhs only) within six weeks from the date of this order with interest @ 8% p.a from the date of submission of claim form to the Opposite parties to till the date of realization including the costs of Rs.3,000/- (Rupees Three Thousand only).

Complainant:

Smt. Rupa Patel
W/o Saten Patel
Aged about 69 years
Residing at N0.130
Railway Parallel Road
Kumara Park West
Bangalore- 560 020



/vs/





Opposite Parties:


1.The Divisional Manager
Oriental Insurance Company
Divisional Office
Gandhi Nagar
Bangalore- 560 009


2.E-Meditech Solutions Limited
S-602, South Block
Manipal Centre
Dickenson Road
Off. M.G. Road
Bangalore - 560 042

3.M/s. Raksha TPA Pvt. Ltd.,
No.25, Ashirwad, 1st Floor
29th Main, 4th ‘B’ Cross
2nd Stage, BTM Layout
Bangalore- 560 076

O R D E R



SRI. G. SIDDANAGOUD, PRESIDENT:

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the Opposite parties (Ops in short) for the payment of Rs.6,842/- with interest, costs and for such other reliefs.

The brief facts of the case are that the complainant has taken a Health Insurance Policy bearing No.421200/48/2008/203 from the 1st Op through the Agency of the 2nd Op for herself and her husband and has paid a premium of Rs.29,180/- there under. The said policy is valid from 24/04/2007 to 23/04/2008 and covers domiciliary hospitalization upto a sum of Rs.45,000/- each. The 2nd Op has merged with the 3rd Op and has taken over the functions of the 2nd OP hence the 3rd Op is a necessary party to the proceedings.

The complainant is a chronic lymphoid leukaemia patient. The complainant was admitted to the Christian Medical College, Vellore on the 11th and 12th of March 2007 for medical Investigation and in view of the procedure being important and urgent from the point of view of the procedure being important and urgent from the point of view of the complainant’s health, the complainant could not inform the same to the first OP at the time of admission to the Hospital. The complainant spent a sum of Rs.6,482/- towards medical expenses. On being discharged from the hospital, the complainant went to her native place to recuperate and on account of the same the complainant could not file the claim petition in time. The complainant on return to Bangalore from her native place, she has filed a claim petition for claiming the Hospital Bills on 11/07/2008 before 1st Op through the 2nd Op and the 2nd Op has returned the claim form with a letter on 2nd August 2008 stating that the claim submitted by the complainant is belated as the Claim Form should be submitted within 30 days and hence the payment cannot be settled.

The complainant at the time of taking the insurance policy the insured was not informed of any such technically. The signature of the complainant was obtained on blank form and copies of the same were not given to the complainant at the time of taking the Insurance policy. The complainant got issued a legal notice to the Op on 24/09/2008 calling upon the OP to accept the Claim Form and settle the claim amount within 15 days form the date of receipt of the Legal Notice. The Ops have neither replied the legal notice nor have they come forward to settle the claim amount. Hence the complainant approached this forum.

Notices were sent o the Ops for their appearance and version. Notices were served on Ops 1 and 2 but they remained absent and no one represented them. The notice sent to Op3 under RPAD not returned including the acknowledgement inspite of completion of 60 days from the date of its dispatch. Even cover sent under RPAD is also not returned. It is a local address. Hence it is treated as served on Op3. But Op3 remained absent. No one represented. Hence Ops 1 to 3 placed ex-parte. Complainant gave her evidence by way of affidavit. Heard arguments of the counsel of complainant.

Complainant specifically on oath stated about the taking of treatment on 11th and 12th March 2007 at Vellore. The mediclaim policy taken by the complainant was in force from the said period. When the claim petition was filed before the Ops they repudiated the claim on the ground that the claim submitted by the complainant was very late and it is violation of the rules and hence they can not settle the payment. When we peruse the dates there is inordinate delay in submitting the form with documents. The explanation given by the complainant is that after her discharge, she went to her native place which is a remote village and returned to Bangalore only few days before submitting the claim form. After returning to Bangalore only she came to know the procedure and submitted the claim form. No doubt as per rules provided under the agreement within 36 days the claim should be made for reimbursement. The mediclaim policies are taken for the benefit of persons who are covered under the policy. Merely there is some delay in submitting claim, on the ground of the technicalities insured person should not be deprived of in getting the benefits under the policy. Therefore, the Ops should have considered the claim of the complainant after submitting the claim form. Non-payment of the said amount amounts to deficiency in service.

These facts have not been specifically denied by the OPs. Even though the notices were served, it remained absent and failed to submit their statement of objection to rebut the evidence of the complainant. In the absence of specific denial by the Op, the evidence given by the complainant is unchallenged.

In view of the discussions made above, we are of the opinion that the complainant has proved the deficiency in service on the part of the Ops. Accordingly, we pass the following order.

O R D E R

Complaint is allowed. Opposite parties 1 to 3 are jointly and severally liable.

Opposite parties 1 to 3 are directed to reimburse an amount of Rs.6,842/- (Rupees Six Thousand Eight Hundred Forty Two only) to the complainant within 60 days from the date of this order with interest @ 8% p.a from the date of submission of claim form to the Opposite parties to till the date of realization.

Opposite parties are further directed to pay an amount of Rs.2,000/- (Rupees Two Thousand only) to the complainant towards the costs of this litigation.

A.PARVATHY,
w/o. G.Arumugam,
Proprietrix,
Arumugam Timber Traders,
No.60, Thiyagappa Chetty Street,
Korukkupet,
Chennai – 21 Complainant

Versus

1.The Branch Manager,
Oriental Insurance Company Ltd,
City Branch Office X,
AppavuTowers,
Ist Floor,
New No.48 (Old No.69)
West Mada Street,
Rayapuram,
Chennai – 600 013.

2.The Divisional Manager,
Oriental Insurance Company Ltd,
Divisional Office, IV,
Lucxan Manzil, III Floor,
130, Angappan Naickan Street,
Chennai – 600 001. Opposite Parties



Date of complaint 11.04.2005

M/S. C.H. Vinobhagandhi, &
J. Sunder Counsels for the Complainant


M.B. Gopalan, & M.Vijayaraghavan Counsels for the opposite
Parties

O R D E R


THIRU.P. ROSIAH. PRESIDENT


Complaint filed Under Section 12 of the Consumer Protection Act
1. The case of the complainant is briefly as follows:

The Complainant is running timber business in the name and style of Sri Arumugam Timber Traders, No.9 M.T.H Road ,Padi, Chennai. The complainant had availed a Fire Insurance Policy in the name of the Firm on 6.6.1999 from the Ist opposite party for the period from 6.6.1998 to 4.6.1999. The policy covers the risk of all kinds of timber to an extent of Rs.10,50,000/- and machinery of Rs. 50,000/- . On the early morning of 11.6.98, fire accident was occurred in the complainant’s business premises due to short circuit in electricity wire . At the time of occurrence the complainant had gone to Aruppukottai and she was informed about the accident by her relative. She came to Chennai on 15.6.1998 and found that the entire stock kept in the business premises to the value of Rs. 11 to 12 lakhs were destroyed. She gave a complaint to the Korattur police station and FIR was registered under accidental fire . The complainant has also intimated the matter to the Ist opposite party and submitted claim forms. The Opposite party appointed surveyors to assess the loss occurred in the fire accident. M/S anbalagan and associates who are the charted accountant conducted the survey and assessed the loss at Rs 602096/- on 21.1.2000. The opposite party by applying the policy conditions reduced their liability at loss Rs. 3,63,887/-. The complainant bankers also approached the opposite parties for settlement of the claim . The opposite parties appointed Maruthi services as fresh surveyor to assess the damages. Considering the report of the Maruthi services, the opposite parties repudiated the claim of the complainant without any justification . The opposite parties have committed deficiency in service and therefore the complainant filed this complaint for a claim of Rs. 7,17,806.35/- being the claim as per policy together with interest compensation of Rs.2,00,000/- for mental agony.
2. The opposite parties filed version and contended inter alia that the surveyors submitted report dated 21.1.2000 assessing the loss at
Rs. 3,63 887/-. On a scrutiny of the survey report the opposite parties found that there had been inordinate delay in submission of documents. Accordingly M/S Maruthi Associates was appointed as investigator who made detailed enquiry regarding fictitious purchase bills . The bills submitted by the complainant for Rs. 5,00,000/- from Gummidipundi, Madharpakkam, Tindivanam were found to be fictitious. The Opposite parties after considering the report of the surveyors, repudiated the claim as per the condition No 8 of the Fire Insurance Policy. Hence there is no deficiency in service on their part.
3. Proof Affidavits have been filed by both the complainant and the opposite parties. Ex.A1 to A16 were marked on the side of the complainant. Ex. B1 to B32 were marked on the side of the opposite parties.
4. The points that arise for considerations are:
1. Whether there is any deficiency in service on the part of
the opposite parties?
2. To what relief the complainant is entitled to?
5. Point No:1
Admittedly, the complainant has taken Fire Insurance Policy with the Ist opposite party for her timber kept in her business premises. On 11.6.1998 fire accident was occurred in the complainant business premises due to short circuit in electricity wire and the stock which were kept in the business premises were destroyed. The claim was made to an extent of Rs. 11 to 12 lakhs with the opposite parties. The opposite parties appointed a surveyor M/S. Raghunathan Associates to assess the loss occurred and submitted the report assessing the loss at Rs. 3,63.878/- in the year 2000. In the report it was stated that the insured had not furnished the claim paper called for by them in time and also recommended to obtain the required claim document from the complainant and checked before settlement of the claim. Hence the opposite parties appointed Maruthi Services as investigator and they submitted investigation report Ex. B26. The report would show that insured submitted purchase bills after 1.4.1998, to substantiate the purchase bills to an extent of Rs. 4.76,967/- alleged to have been purchased from SKM timbers M.P Road. Elavur, Gummidipundi dated 20.4.1998, 10.6.1998, and the bills issued by the Gokul Timber and Plywoods Chennai rode Madharpakkam Gummidipoondi and Anitha Timber and Plywoods , Pondy Road, Villupuram were found to fictitious. There was no timber merchant in the place shown mentioned in the bills . Hence the investigators made a report that the insured had fabricated the purchase bills printing them and giving some numbers on it for nearly Rs. 5 ,00,000/- to substantiate the stock prior to the reported accidental fire. The opposite parties by letter dated 6.9.2001 (Ex.B27) informed the complainant that the claim was repudiated as per policy condition No.8 of the fire policy. on the ground that the complainant had produced fictitious document.
6. The complainant would submit that Mr Ragunathan Associates submitted the report dated 21.4.2000 (Ex.B23) assessing the loss of Rs. 3,63,887/- and the opposite parties did not settled the amount. Per contra the opposite parties would submit that the report would state that the required documents have to be obtained from the insured and checked before settlement. Hence the opposite parties appointed another investigator M/s Maruthi services and that the investigator submitted reports ( Ex.B26) which would clearly show that the complainant have produced fictitious bills to claim policy amount from the opposite parties. The claim was repudiated on the ground of fraud and it is appropriate for a detailed a civil court to try the issue to arrive at just a decision whether the bills produced by the complainant are fictitious or not. If at all the complainant’s claim is considered it is only the civil court that has jurisdiction to entertain the claim and not by this forum.
7. We carefully considered rival submission and perused the material on record. It is true that the complainant had availed fire policy with the opposite parties . It is also not in dispute that there was a fire accident in the premises of the complainant on 11.6.98. The dispute is with regard to genuineness of certain bills submitted by the complainant. The opposite parties would submit that the investigator appointed by the opposite parties by his report had stated that the (Ex.B26) complainant submitted fogus bills for a claim of nearly 5 lakhs. The investigator further stated in his report when he enquired about the bills produced by the complainant the bills are found to be fictitious. The opposite parties repudiated the claim on the ground if fraud as per the policy condition No. 8. On perusal of the record, we are of the considered view that this matter need elaborate examination of witnesses which can be done only by a Civil Court and not by the Consumer Forum which disposes case in a summary procedure. It is open to the complaint to approach a Civil Court for their claims. The period spent before this Forum for the case is excluded for the purpose of limitation. Hence we do not find any deficiency of service on the part of the opposite parties.
8. Point No:2 In the result, the complaint is dismissed. The time spent by the complainant before this Forum is excluded for the purpose of limitation under section 14 of the Limitation Act as laid down by the Supreme Court of India in a decision reported in 1995 CTJ 289 (SC) 1995 SCC 593 in the case of Laxmi Engineering Works Versus PSG Industrial Institute, No costs.