Devanam Venkata Ranga Rao,
S/o Srinivasa Rao, Business, D.No.48-2-4,
1st line, Ranguthota, Ongole, Prakasam District.
... Complainant.
Vs.

M/s Reliance General Insurance Company Limited,
rep., by the Branch Manager, 40-1-21/11,
Surya Towers, 3rd floor, N.G. Road,
Labbi Peta, Vijayawada, Krishna District.
…Opposite party.

ORDER:

This is a complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 against the opposite party.

1. The averments in the complaint are as follows: The complainant is the owner of TATA Indica DLS bearing No.AP 27 N 0640 and the same was insured with the opposite party and the policy was inforce from 19.05.2008 to 18.05.2009. When the policy was inforce the vehicle met with an accident on 27.05.2008 and the same was informed to the opposite party. The opposite party appointed a surveyor to assess the damage and the surveyor inspected the vehicle and assessed the loss of damage to the vehicle. Subsequently, the opposite party did not settle the claim. The complainant get the vehicle repaired at Padmavathi Motors, Nellore spending Rs.20,271/-. The complainant filed the present complaint for recovery of the amount spent for repairs and also for compensation and costs of litigation.


2. The opposite party though served with summons did not choose to appear before the forum and remained ex-parte.

3. On behalf of the complainant Exs.A1 to A3 were marked. Ex.A1 is the Insurance policy issued by Reliance General Insurance dated 19.05.2008. Ex.A2 is the Cash Bill issued by Padmavathi Motors, Nellore dated 16.06.2008. Ex.A3 is the legal notice issued to the opposite party by the complainant dated 19.02.2009.

4. The point for consideration is whether the complainant is entitled for the claims made in the complaint.

5. Ex.A1 is the policy and Ex.A2 is the cash bill issued by Padmavathi Motors, Nellore towards the repairs effected to the vehicle. The complainant issued notice to the opposite party under Ex.A3 calling upon the opposite party to pay the amount spent towards repairs and inspite of the notice, the opposite party did not choose to settle the claim of the complainant. It amounts to deficiency on the part of the opposite party and the opposite party is liable to pay the amount as claimed by the complainant.

6. In the result, the petition is allowed directing the opposite party to pay Rs.20,271/- with interest at 9% to the complainant from the date of petition till the date of reliasation. The complainant is also entitled to receive Rs.2,000/- as compensation for mental agony and Rs.1,000/- towards costs of litigation from the opposite party.

Surinder Sharma aged 60 years son of Goverdhan Dass r/o vill Hajipur Distt. Hoshiarpur.

vs.

1.

Reliance General Insurance Co. ltd. Jalandhar Ist Floor Rattan Tower Civil Lines near Nam Dev Chowk Jalandhar through its General Manager.
2.

Reliance General Insurance S.C.O. 212-213-214 Sector 34-A Chandigarh through its General Manager.
3.

Kotak Mohindera Prime Ltd Jalandhar through its Manager.

1.

The complainant namely Surinder Sharma has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the complainant got insured his car bearing registration no. PB-07-T-4171 with OP No.1 from 19.5.2007 to 18.5.2008.
2.

It is the case of the complainant that said vehicle was going from Mukerian to Hajipur on 13.5.2008. The vehicle at that time was being driven by Sumit Sharma-the son of the complainant. When the said vehicle reached near Dhir Poultry Farm, G.T.Road, it met with an accident. The vehicle got damaged. The intimation to P.S.Hajipur was given. The complainant got repaired the vehicle from Dada Motors, Jalandhar- authorized dealer of General Motor India Pvt. Ltd. and paid Rs. 1,58,720/- for the repair of the vehicle vide invoice no.7984 dated 28.5.2008 against receipt. Besides this, the complainant also spent Rs.5000/- . The complainant completed all the requisite formalities and lodged the claim with OP No.1,2.
3.

It is the allegation of the complainant that OP No.1,2 illegally repudiated the claim vide letter dated 21.7.2008. the complainant never used the vehicle as taxi. The repudiation of the claim is stated to be illegal, hence this complaint.
4.

OPNo.1,2 filed the joint reply Preliminary objections with regard to suppression of material facts was raised. On merits, the claim put forth by the complainant has been denied. It is admitted that the vehicle in question was insured with the replying OPs. It is also admitted that the claim was lodged. It is denied that the complainant spent the amount of Rs.1,58,720/- and Rs.5000/- . That as per terms of the insurance policy, the vehicle insured with the replying OPs could not be plied for hire and reward and the insured was bound to comply with the said terms and conditions. The matter was duly investigated and it transpired that the vehicle was being plied for hire and reward at the time of accident in breach of the terms and conditions i.e. 'limitation as to use', therefore, the claim of the complainant was repudiated vide letter dated 21.7.2008.
5.

OP No.3 filed a separate reply. On merits, the claim put forth by the complainant has been denied. However it is replied that the vehicle in question was hypothecated with the replying OP. . That no claim has been made against the replying OP.
6.

In order to prove the case, the complainant tendered in evidence his affidavit Ex.C-1, invoice Mark C-2, invoice dated 28.5.08 Mark C-3, invoice for Rs. 1,57,820/- Mark C-4, invoice dated 20.5.08 Mark C-5, RC Mark C-6, DD Mark C-7, letter dated 21.7.08 Mark C-8, insurance policy Mark C-9 and DL verification Mark C-10 and closed the evidence.
7.

In rebuttal, the opposite parties Nos.1,2 tendered in evidence affidavit of Satyan Kapoor Ex. OP-1, claim cost Mark OP-2 and report Mark OP-3 and closed the evidence. The OP No.3 tendered in evidence affidavit of Vishal Anand Ex. OP-4 and closed the evidence.
8.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
9.

The case of the complainant is that on 13.5.2008, the vehicle bearing registration no. PB-07-T-4171, which was insured with OP No.1 from 19.5.2007 to 18.5.2008, met with an accident and got damaged. The complainant got repaired the vehicle and paid Rs. 1,58,720/- vide invoice no.7984 dated 28.5.2008 against receipt and besides this, the complainant also spent Rs.5000/- .
10.

It is the allegation of the complainant that Insurance Company illegally repudiated the claim vide letter dated 21.7.08. The OPs have raised the defence that the insured vehicle could not be plied for hire and award.
11.

The claim was repudiated by the Insurance Company qua Mark C-8 on the ground that the vehicle was being plied for hire and reward at the time of accident in violation of the Motor Vehicle Act and policy clause 'limitation as to use', therefore, the claim was not within the purview of coverage of policy, as such, it was treated as closed claim .
12.

The other facts are admitted.
13.

Now the only point which calls determination from this Court is whether the vehicle was being plied for hire and reward at the time of accident in violation of the terms and conditions of the policy Mark C-9 ? The answer to this is in the negative.
14.

Since the OP No.1,2- Insurance Company has repudiated the claim on the ground that the vehicle was being plied for hire and reward at the time of accident in violation of the terms and conditions of the policy, therefore, it was for the Insurance Company to prove that the claim was not payable as it was not within the purview of coverage of Insurance Policy and was rightly treated as closed claim..
15.

The Insurance Company has only filed the affidavit of Satyan Kapoor, Manager Legal Ex. OP-1 in support of the said defence . The perusal of the record makes it clear that there is no other evidence available on the record to prove that the vehicle was being used for hire and reward, thus, OP No.1 and 2-Insurance Company was not justified in repudiating the claim, which amounts to deficiency in service.
16.

Admittedly, the complainant has placed on record repair invoices Mark C-2 to C-5 but has not produced on record the receipt towards the payment of Rs.1,58,720/- to Dada Motors nor has submitted any affidavit of the authorized representative of Dada Motors in support of the bills/ invoice Mark C-2 to C-5, therefore, it looses its evidentiary value and on the contrary, the OP has placed on record the report of the surveyor Mark-OP-3 qua which the loss to the vehicle in dispute had been assessed to the tune of Rs.1,29,894/-. Since the complainant has failed to produce the receipt to prove the payment of Rs.1,58,720/- to Dada Motors , therefore,the report of the surveyor qua Mark-OP-3 is to be accepted as the surveyor is an expert and also an independent person to assess the damage caused to the vehicle of the complainant , thus, we are of the opinion that the claim of the complainant can be allowed on the basis of the survey report Mark-OP-3.
17.

As a result of the above discussion, the complaint is accepted and the opposite parties Nos 1 and 2 are directed to pay Rs. 1,29,894/- to the complainant with interest @ 9 % per annum from the date of filing the complaint i.e. 27.1.2009 till realization alongwith litigation expenses of Rs.1000/- within one month from the receipt of copy of the order.

The complaint in brief is as follows:- The Complainant purchased a cow at the price of Rs.30,000/- and it was insured by the Opposite Party. The purchase of the cow was effected by the loan provided by the Indian Overseas Bank Branch at Kalpetta. The sum assured for the insurance was Rs.20,000/- and more over the policy of the sum insured was not given to the Complainant. On enquiry the Opposite Party apprised the Complainant that the policy would be issued to the bank which has given the loan. The cow was nurtured well and good. On 21.08.2008 the cow was died in connection with ailment for which the treatment was given by the veterinary doctor named Dr. Prabhakaran. The death of the cow was immediately informed to the Opposite Party and the agent. Later postmortem was conducted as per the direction of the insurer. The Complainant approached the Opposite Party with all the relevant documents as directed by the Opposite Party to honour the claim. The Opposite Party instead of granting the amount repudiated the claim and a letter in that effect was given to the Complainant dated 19.9.2008. The claim repudiation of the Opposite Party is absolutely a deficiency in service, the insurer is liable to pay the Complainant the sum insured Rs.20,000/- along with the interest at the rate of 12% from the date of filing the claim till realisation. There may be an order directing the Opposite Party to pay the claim amount Rs.20,000/- along with interest at the rate of 12% from the date of filing the complaint the payment is done.

2. The Opposite Party was served notice and no version was filed even after the expiry of the stipulated time. The Opposite Party is declared exparte.

3. The points in consideration are:-

1.

Whether any deficiency on the part of the Opposite Party?
2.

Relief and cost.

4. Point No.1 and 2:- The point No.1 and 2 are considered together the Complainant filed proof affidavit, Ext.A1 photocopy of the Cattle Insurance Policy along with the terms and conditions. The premium of the policy for the sum insured is Rs. 2,697/- the policy covers the period from 25.9.2007 to 24.9.2010. It is also avered in the affidavit by the Complainant that the postmortem certificate bills related to the purchase of medicines and ear tag along with other documents were sent to the Opposite Party to honour the claim of the Complainant. The repudiations of the claim is also avered in the affidavit. The Opposite party has not inter alia contented the reason for the rejection of the claim not even by filing version. On the ground of the this reason it is found that the Opposite Party's rejection of claim is against reasons and absolutely a deficiency in service. The Complainant is to be compensated with the claim amount along with interest from the date of filing this complaint.

In the result the complaint is allowed. The Opposite Party is directed to compensate the Complainant Rs.20,000/- (Rupees Twenty thousand only) the sum insured along with interest at the rate of 12% from the date of filing the claim till realization. The Complainant is also entitled for the cost of Rs.500/- (Rupees Five hundred only). The Opposite Party is directed to comply with this order within one month from the date of receiving this.

1. M/s Venus Industrial Corporation, 424, Industrial Area-A, Ludhiana through its partner Sh.Ashok Gupta.

2. Ashok Gupta partner M/s Venus Industrial Corporation, 424, Industrial Area-A, Ludhiana.

(Complainants)

Versus

Reliance General Insurance Company Limited having its branch Office at 7th Floor, Surya Towers, 108, The Mall, Ludhiana through its branch Head/Manager/Vice President.
(Opposite party)
O R D E R
1. In the present complaint under section 12 of the Consumer Protection Act, 1986, direction sought against the opposite party by the complainant is to order them to pay Rs.5,00,000/- after setting aside the repudiation letter dated 30.8.2007 of the opposite party. Have also claimed compensation of Rs. 50,000/- and litigation cost, for causing harassment, agony and sufferance to them.

2. Complainant no.2 is partner of complainant no.1 firm. Complainant had taken “Industry Care Policy” vide policy no. 20-26-15-00742-06 from opposite party, valid from 19.5.2006 to 18.5.2007. The policy covered ‘Standard Fire & Allied Perils, ‘Burglary and House breaking contents’ and ‘Money Insurance’. Consolidated premium of Rs.16,275/- was paid to the opposite party. Complainants for the purpose of business intended to purchase second hand machinery from Delhi, for their industrial plant and complainant no.2 was assigned duty to purchase such machine. He consequently on 26.12.2006, withdrew Rs.5,00,000/- from the bank account of the firm of complainant no.1. But could not visit Delhi till 7.1.2007, on account of business pre-occupations.

Hence, on 7.1.2007 carried cash of Rs.5,00,000/- in his car to Delhi for purchase of machine. On 8.1.2007, complainant no.2 on his way for purchase of industrial machine stopped at Connaught Place, New Delhi and left the bag containing Rs.5,00,000/- in the car under the care and custody of his driver for short time. On coming back, was apprised by the driver that the bag containing cash was stolen from the car, regarding which FIR was lodged immediately with Connaught Place, Police Station, New Delhi . On coming to Ludhiana, claim was lodged with the opposite party to indemnify the loss suffered under the insurance policy. All necessary documents and bills were furnished. Assistance provided to the opposite party from time to time.

Opposite party instead of settling the claim, repudiated it vide letter dated 3.8.2007 on the grounds that “money collected by the insured or the authorised employee of the insured whilst in transit to the insured’s business premises or bank shall not remain in their personal custody for more than 48 hours” and that “Moreover, you remain unable to prove that the money lost was withdrawn for official use.” This repudiation letter is assailed to be illegal, null and void. Claimed that Rs.5,00,000/- were withdrawn from account of the firm with H.D.F.C. Bank for the purchase of machinery when theft was committed. Hence, entitled to be paid the loss under the insurance policy.

3. Opposite party contested the complaint on the ground that the complainant is not entitled to file complaint as policy was for commercial purpose. This Forum has no jurisdiction to try the same. They denied existence of deficiency in service or negligence on their part. Obtaining of insurance policy by the complainant, lodging of claim under the policy and repudiating the same has been admitted. They have justified repudiation to be legal under the policy.

It is averred that on receipt of claim from the complainant, it was entertained, processed and got investigated from IPSO FACTO. On receipt of report from them, M/s Duggal Gupta Surveyors Pvt. Ltd. were engaged to investigate the claim. After scrutinizing the documents of the claim, applying their mind, claim was rightfully and legally repudiated under terms and conditions of the policy vide letter dated 3.8.2007. So, the complainant having no cause against the opposite party, complaint deserves to be dismissed.

4. In order to prove their respective versions, both the parties led their evidence by way of affidavits and documents.

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

6. Let us outrightly analyze the grounds conveyed by the opposite party to the complainant vide letter dated 3.8.2007 (Ex.P1) to repudiate the claim. But before venture to do so, would like to high light admitted aspects that complainant had taken insurance policy from the opposite party and under the policy after theft of Rs.5,00,000/- lodged claim. Opposite party engaged IPSO FACTO investigator and also appointed M/s Duggal Gupta Surveyors & Loss Assessors, on receipt of report from them, claim as accordingly repudiated.

7. Reasons conveyed to the complainant under repudiation letter Ex.P1 are as under:

“This is reference to your claim intimation dated 10.1.2007 about loss of cash of Rs.5 lacs during your visit to Delhi and further deputation of our investigator M/s IPSO FACTO & M/s DUGGAL GUPTA SURVEYORS P. LTD. for investigation and verification of your books of accounts.

Now, we have received investigation reports from our investigators and while scrutinizing the same we observed that the an imprest of 5 lacs was withdrawn by Mr. Ashok Gupta, Partner on 26.12.2006 as per books of accounts of your company and was kept lying in his personal custody till the date of loss i.e. 08.01.2007 as per written statement of Mr. Gupta dated 16.01.2007.

As per Industry care policy issued to you, under section VI-Money Insurance against point no.3 it is warranted “Money collected by the insured or the authorised employee/s of the insured whilst in transit to the insured’s business premises or bank shall not remain in their personal custody for more than 48 house.”

Moreover, you remain unable to prove that the money lost was withdrawn for official use.

In view of the above, we are constrained to repudiate the above said claim.

Please feel free to contact the undersigned in case of any query.”

8. So, bare look of letter Ex.P.1 goes to show that opposite party on the basis of report of its surveyor had concluded that amount of Rs.5,00,000/- was withdrawn by complainant no.2 on 26.12.2006 as per books of account of complainant firm, which amount was lying in personal custody till loss on 8.1.2007. Main reason of repudiation, as such, was that he kept the amount in personal custody for more than 48 hours in contravention of section VI , Point no.3 of the Insurance Policy and secondly be failed to prove that money was withdrawn for official use.

9. It is in these circumstances that necessity has arisen to look into the terms and conditions of the insurance policy, copy of which is Ex.R28. Section VI of the policy titled “Money Insurance” is relevant. Sub section II of section VI deals in What is covered under the policy. This reads as under:

This section covers loss of money relating to insured’s business due to accident or misfortune

a) While in transit,

b) From safe at the Insured’s business premises,

c) From till at the Insured’s business premises.

10. Sub section 3 of section VI is titled as “warranty”. This warranty is to the following affect:

a) It is warranted that the Insured shall maintain and keep a complete account of money in a safe, cupboard or cash box under lock and key at places other than the place where the money covered is kept. The liability of the Company shall be limited to the account actually shown by such records not exceeding the amount states in the Schedule.

b) It is also warranted that money collected by the Insured or the authorised employee/s of the Insured whilst in transit to the insured’s business premises or bank shall not remain in their personal custody for more than 48 hours.

11. According to ld. counsel for the complainant, money was withdrawn by the complainant no.2 from the account of complainant no.1 for business purpose for purchase of old machinery from Delhi. But due to pre-occupation immediately could not go to Delhi. He went to Delhi on 7.1.2007 and for purchase of machinery left on 8.1.2007. On way stopped at Connaught Place, New Delhi, keeping the bag containing cash in the car, which was stolen from there. So, theft occurred of the money while in transit. Therefore, the Insurance Company would be liable under the policy to pay the amount as theft was fully proved of the money carried by complainant no.2 for purchase of machinery for opposite party no.1.

12. Whereas on behalf of opposite party they supported repudiation letter on the ground that claim was rightfully and legally repudiated, as complainant acted in contravention of terms and conditions of sub section 3 (b) of section VI of the policy by keeping money in personal custody by complainant no.2 for more than 48 hours.

13. We have considered rival contentions of the parties and given our utmost consideration to conditions of the policy Ex.R.28 governing the parties. We feel that application of sub section 3 (b) of section VI of the policy has been wrongly applied by opposite party for repudiating the claim. Because that provision is not at all attracted to the facts of the case in hand. Because that provision is applicable only qua money “collected by the insured or authorised employee/s of the Insured whilst in transit to the Insured’s business premises or bank shall not remain in their personal custody for more than 48 hours.”

14. In the present case, money was neither collected by complainant no.2 or authorised employee of the firm of complainant no.1, nor such money was in transit to business premises of the complainant or the bank. Money which was collected must have been collected from other source. Such collected money can only be kept by the insured for a period not more than 48 hours. In the instant case, the case of the complainant is that the money was withdrawn from account of complainant no.1 from the bank, which aspect was not disputed by investigator of the opposite and complainant was able to prove the same by placing material on the record in the shape of statement of account Ex.P.5.

15. Whereas section VI of the policy covers, loss of money related to insured’s business due to accident or misfortune while in transit (emphasis laid). In the instant case, money of the complainant no.2 related to his business when theft was committed. The money was in transit. This clause is not supplemented or made subject to condition that such money in transit can not be kept in personal custody for more than 48 hours, as was the condition under sub section 3 (b) of the policy. Section VI, sub section 2 is independent of sub section 3.

Both are to be read separately. Therefore, it means that there was no condition for money in transit to be kept beyond 48 hours in personal custody. That condition of keeping money in personal custody for not more than 48 hours applies only to the money collected by the insured or his authorised employee while in transit to the insured’s business premises or bank. Only that money was required to be kept in personal custody for not more than 48 hours. That provision was wrongly made applicable by opposite party to the case in hand. As it was not covered thereunder.

16. Second ground of repudiation was failure of the complainant to prove that money was withdrawn for official use. Complainant in his affidavit Ex.CE1/A has stated that he withdrew money from account of the firm for purchase of machinery and could not go immediately on withdrawal from bank account. When on 7.1.2007 went to Delhi, theft was committed on 8.1.2007 at Connaught Place, New Delhi, qua which he had also intimated to the opposite party and also lodged FIR Ex.R.2 under section 379 IPC in Connaught Place, Police Station, New Delhi. Opposite party had engaged M/s Duggal Gupta Investigator, who vide report Ex.R.4 had found accounts of the firm of the complainant to be correct and also affirmed allegations of theft of currency notes Rs.5,00,000/- from the bag. Cash book of the firm of the complainant no.1, copy of which is also Ex.R.14, also corroborate that report along with certificate Ex.R14/A of the HDFC Bank.

17. Moreover, M/s IPSO FACTO in their investigation report Ex.R.16 and R.17 had also affirmed theft allegations of the complainant and that Rs.5,00,000/- were withdrawn by complainant no.2 from the account of complainant no.1 firm on 26.12.2006, which amount was kept in personal custody in Almirah till 7.1.2007. In these circumstances, we feel that the repudiation of the claim by the opposite party in such circumstances is not at all justified and proper. Because no condition of the Insurance Policy was infringed by the complainant. Conditions of the policy were wrongly interpreted by the opposite party. Hence, by not releasing the claim, opposite party would be guilty of not rendering proper services to its own consumer.

18. Hence, for such deficiency on the part of opposite party, it is evident that they wrongfully and illegally repudiated the claim of the complainant. Therefore, we allow the complaint and as a result of which direct the opposite party to pay claim of Rs.5,00,000/-(Rs. Five Lacs only) under the policy to the complainant within 45 days of the receipt of copy of the order, and also to pay compensation of Rs.10,000/-(Rs.Ten Thousands only) for causing harassment, mental tension and agony and litigation cost of Rs.3000/-(Rs. Three Thousands only).

Katta Govinda Rao, S/o K. Varahalu Hindu, aged 24 years, R/o D.No.44-27-55/1, Railway New Colony, Near Yasodha Talent School, Viskahapatnam – 530 016.

… Complainant

1. The Branch Manager, Reliance General Insurance Co. Ltd., 3rd Floor, Eswar Paradise, Dwarakanagar, Visakhapatnam – 530 016.

2. Manager, Relaince General Insurance Co. Ltd., Regd. Office at Reliance Centre, 19 Walchand Hirachand Marg, Ballard Estate, Mumbai – 400 001.

... Opposite Parties

: O R D E R :

1. The complainant is the owner of Tata Indica Car bearing No.AP16AD3337. He took an Insurance Policy from opposite party bearing No.1802382311100038 covering a period from 10-12-2007 to 09-12-2008. Further he converted the car into a public carrier i.e., Tax and applied for a fresh policy and he was given a fresh policy bearing No.1802172338711325 covering period from 01-03-2008 to 28-03-2009. It is complained that he demanded for the refund of the earlier policy amount from the 1st opposite party inspite of registered notice did not refund. Hence this complaint that this failure to refund the insurance premium in toto or proportionately amounted to deficiency in service and this resulted in suffering both mentally and physically. Hence the complaint for a direction to pay Rs.4,000/- for the suffering, Rs.2,000/- for the mental agony and Rs.1,000/- towards costs.

2. Opposite party resisted the claim of the complainant, while admitting the change of policy from private car to public carrier, pleaded that there was never any demand for such refund by the complainant to them. It also pleaded that demand should accompany the surrender of the policy. Hence there is no deficiency in service.

3. At the time of enquiry both the parties filed affidavit in support of their respective contentions and also marked Ex.A.1 to Ex.A.4 and Ex.B.1 and Ex.B.2.

4. It is the contention of the counsel for the complainant that inspite of sending notice demanding such refund as evidenced by Ex.A.4 postal receipt and acknowledgement, the opposite parties failed to refund. This clearly amounted to deficiency in service and the complainant is entitled for the refund of the amount as well as the compensation claimed.

5. On the other hand there is contention of the counsel for the opposite party that there was never any demand and point out that neither the complainant nor the affidavit of the complainant would show the details as to when such a demand was made at all. He pleaded had there been such surrender, the opposite parties would have refunded proportionate premium to the complainant. Apart from that he urged now the financial year is changed and it may not be possible to refund at all.

6. In view of the respective contentions the point that would arise for determination is whether there is any deficiency in service on the part of the opposite party and the complainant is entitled for the relief asked for ?

7. There is no dispute that the complainant, who originally took policy Ex.A.1 for his Tata Indica Car, later converted into public carrier namely Taxi and took another policy Ex.B.1, even by then earlier policy was in force. The claim of the complainant is inview of the changed policy obtained later, the opposite party is liable to refund the entire amount of the earlier premium amount or atleast proportionately.

There is not much dispute as to the liability of the opposite party to refund the premium, proportionately, for the unexpired portion of the insured period. The only objection of the opposite party is there was never any demand by the complainant for such refund that too by surrendering the original policy Ex.A.1 and unless it is done, the refund cannot be ordered at all.

The complainant filed Ex.A.4 postal receipt and acknowledgment showing that a registered notice was sent to the opposite party at its Mumbai office and Visakhapatnam office and the acknowledgement is from Visakhapatnam office. Though the dates of such registered notice and acknowledgement thereon is not clear, it would show that a registered letter is sent to opposite parties, which naturally be subsequent to 2nd policy and the purpose must be for refund. Inspite of the fact that those postal acknowledgment was filed along with the complaint, as specifically mentioned therein as one of the documents filed though not mentioned in the body of the complaint, the opposite parties did not try to explain what was the document received by them and other hand took a bald plea that no such notices was received.

Therefore, it proves to great extent that such a demand was made by the complainant for refund. Inspite of such receipt of letter the opposite parties did not choose to intimate the complainant that the original policy should be surrendered. In our view this conduct of failure to intimate the complainant the necessity for surrender of the policy, inspite of receipt of notice, amounts to deficiency in service. We do not find any force in the contention of the counsel for the opposite party since the original policy period already expired and even that proportionate refund of premium is not possible.

A duty is cast upon them to intimate the necessity of surrender of the policy, especially, when a notice for refund is given. For its failure to do so, the complainant cannot be penalized. Hence we are of the view that it would be just and proper that a direction be given to the opposite parties to refund the proportionate premium for the unexpired period of the insurance policy. Apart from this, in our view it would be just and proper that the complainant be awarded the compensation of Rs.1,000/- for the deficiency in service on the part of the opposite parties. Accordingly this point is answered.

8. In the result, the complaint is partly allowed, directing the opposite parties to refund the premium amount proportionately covering the unexpired period of insurance policy bearing No.1802382311100038 i.e., from 01-03-2008 to 09-12-2008. It is further directed that the opposite parties shall pay compensation of Rs.1,000/- (Rupees one thousand only) to the complainant and costs of Rs.500/- (Rupees five hundred only). Advocate fee Rs.500/- (Rupees five hundred only).

D.Kalamani, W/o.Late P.Duraisamy,

s1/301, A.D.Colony, Sarkarsamakulam,

Vaiyampalayam, Coimbatore 641 110 --- Complainant

Vs.

The Manager,

Reliance General Insurance Co.Ltd.

2nd floor,New No.41, 8th street,

Tatabad, Coimbatore-12. --- Opposite Party

This case coming on for final hearing before us on 27.07.09 in the presence of M/s.R.Ravikumar and R.Anandhakumar, Advocates for complainant and of Mr.S. Balasubramanian, Advocate for the opposite party and upon perusing the case records and hearing the arguments and the case having stood over to this day for consideration, this Forum passed the following:

ORDER

Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite party to pay a sum of Rs.1,00,000 with 24% since 16.4.07 to realization of the said amount, to pay Rs.50,000 towards mental agony and to pay Rs.5000/- towards legal expenses.

The averments in the complaint are as follows:

1. The Complainant is the wife of late P.Duraisamy, S/o.Palanisamy. The above said P.Duraisamy died in a motor accident which took place on 12.1.07 at about 16.30.hrs. while he was driving his motor cycle bearing Regn.No.TN 38-AF-6521 on the Coimbatore to Sakthy main road, towards south to north direction. The deceased P.Duraisamy is the regd.owner of the above said motor cycle. The deceased P.Duraisamy insured the above said vehicle and also personal loss of life with the opposite party under Policy No.12-23-12-57956-06 dt.28.4.06.As per the terms and limits of liability of the opposite party incorporated under the policy, the opposite party is liable to pay a sum of Rs.1,00,000/- to the complainant who are the legal heir of the deceased P.Duraisamy. The deceased P.Duraisamy had a proper and valid driving license at the time of the accident.

2. The complainant has filed a claim form on 16..4.07 before the opposite party with all necessary certificates of the said P.Duraisamy, certificate of registration of motor cycle, insurance policy of P.Duraisamy copy of the FIR, Post Mortem certificate etc. as directed by the opposite party so as to get the sum of Rs.1,00,000 from the opposite party as compensation on the basis of the terms of the policy issued by the opposite party. Though the opposite party acknowledged claim form, they have not come forward to the said sums. Again they have not chosen to issue any reply to the complainant.

3. The conduct of the opposite party in the above circumstances under law is nothing but a deficiency of their service and also amounts to an unlawful trade practice for which the opposite party is liable to the interest at 24% p.a. from 16.4.07 apart from the compensation of Rs.1,00,000. Because of the deficiency in the service of the opposite party, the complainants have been suffering from untold mental agony and pain for which they claim sum of Rs.50,000 apart from a sum of Rs.5000 towards the cost of this complaint. Hence this complaint.

The averments in the counter of opposite party are as follows:

4. The opposite party had issued a Motor Vehicle Policy to the deceased Mr.P.Duraisamy for his TVS Star City Motorcycle bearing No.TN-38-AF-6521 as per details averred in para III of the complaint. No claim was made with this opposite party by the complainant before filing the present complaint. Further, no pre-litigation notice was issued to the opposite party. Therefore in the absence of any intimation of claim under the policy, the present complaint is not maintainable.

5. The policy of insurance granted to the deceased P.Duraisamy for his TVS Star City motorcycle is a personal contract and therefore any claim under the policy has to be decided strictly in accordance with the terms and conditions incorporated therein. Section III – Personal Accident cover for Owner-Driver. This cover is subject to

a. The owner-driver is the registered owner of the vehicle insured

b. The owner-driver is the insured named in the policy

c. The owner-driver holds an effective driving licence, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules 1989, at the time of accident.

6. It is seen from the complaint documents that no proof of the deceased P.Duraisamy holding a valid and effective licence to drive a geared motorcycle as on the date of the alleged accident on 12.1.07. Therefore it is evident that the deceased P.Duraisamy was not having any such Driving Licence as on that date. Hence the present complaint is not maintainable against the opposite party. Hence the complaint has to be dismissed.

7. The complainant and opposite parties have not filed Proof Affidavit. There was no representation on the side of the complainant for the last few hearings. Arguments of opposite party heard.



The point for consideration is

Whether the opposite party has committed deficiency in service? If so to what relief the complainant is entitled to?

ISSUE 1

8. The complainant is a wife of late P.Duraisamy. The said P.Duraisamy died in a motor accident on 12.1.2007 while he was driving his motor cycle. Based on the insurance policy, the complainant filed a claim application before the opposite party on 16.4.07, but the opposite party has not come forward to settle the lawful claim of the complainant. Hence this complaint.

9. In the present case, the complainant has not filed any Proof Affidavit and no document is marked.

10. The contention of the opposite party is that there is no claim was made with this opposite party by the complainant before filing the present complaint. The complainant has filed 4 documents viz. (1) FIR dt. 12.1.07, (2) the postmortem certificate dt.12.4.07, (3) copy of the insurance policy dt.28.4.06 and (4) the copy of RC book of TN38 AF 6521. As stated by the opposite party no copy of claim application and driving license of the deceased is filed. The policy of insurance is a personal contract and therefore any claim under the policy has to be decided in accordance with the terms and conditions incorporated with the policy.

11. Therefore in the absence of any intimation of claim under the policy and in the absence of effective driving license, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules 1989, at the time of accident, the present complaint is not maintainable.

12. In the result, this complaint is dismissed. No costs.

Smt.Daljeet Kaur Widow of Sh.Ranjit Singh, S/o Sh.Amar Singh, resident of village Khera Kalan, Tehsil Sardulgarh, District Mansa.


..... Complainant.


VERSUS


1.

The Manager, Head office, The Mansa Central Co-operative Bank Limited, Mansa.


2.

The Manager, The Mansa Central Co-operative Bank Limited, Branch Sardulgarh, District Mansa.


3. Reliance General Insurance, Anil Dhirubhai Ambani Group, Regional

Office, SCO 212-214, Sector 34-A, Chandigarh.

..... Opposite Parties.





ORDER:-




This complaint has been filed, by Smt.Daljeet Kaur widow of Sh.Ranjit Singh, a resident of village Khera Kalan, Tehsil Sardulgarh,

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District Mansa, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act') against the opposite parties for release of maturity amount of insurance policy in the sum of Rs.1,00,000/- and for payment of amount of compensation in the sum of Rs.20,000/- and costs of filing of the complaint in the sum of Rs.2,000/-. Briefly stated, the case of the complainant may be described as under:-

2. That Ranjit Singh, husband of the complainant had opened a saving bank account No.3577 with OP No.2 at Sardulgarh. Since the date of opening of the said account, he had been drawing and depositing amount therein from time to time. The bankers of the complainant secured insurance cover from OP No.3 under accidental insurance scheme, as such, complainant is consumer under all the opposite parties. The husband of the complainant has also nominated her as his nominee. On 11.12.2006, the husband of the complainant died in road accident between motorcycle and bullock cart, while he was riding a motorcycle. In this regard DDR No.10 was registered on even date at Police Station Sardulgarh on the statement of the deceased. Being nominee of her husband, the complainant is entitled to receive the amount payable under the insurance policy, but the opposite parties had been prolonging the matter for payment on one pretext or the other despite being approached by her several times.


The complainant also served registered notice dated 12.12.2007 upon OP No.1, Sh.Munish Kumar, Advocate, but the opposite parties have not responded to the same. On being approached in his office, OPNo.2 used filthy language and sent the complainant out of the premises of the bank. As such, complainant, has been subjected to mental and physical harassment, due to deficiency in service on the part of the opposite parties. Hence this complaint.

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3. On being put to notice, Opposite parties No. 1 & 2 filed joint written version, resisting the complaint, by taking preliminary objections; that the complaint is barred by limitation, as such, it is not maintainable and liable, to be dismissed, with costs. On merits, it is admitted that deceased husband of the complainant had been maintaining saving bank Account No.3577 with OP No.2, but it is denied that he is consumer under the answering opposite parties. It is also denied that any information was conveyed by the complainant to the answering opposite parties about the death of her husband or that there is any deficiency in service on their part. The receipt of notice has been denied, but it is submitted that answering opposite parties have no liability to pay her the insured amount, therefore, the complainant could have served notice upon the insurance company and not upon the answering opposite parties. Rest of the averments made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.

4. The Opposite Party No.3 filed separate written version resisting the complaint, taking preliminary objections; that claim of the complainant has been repudiated vide letter dated 31.7.2003, after thorough investigation and seeking report of Sh.Satish Kumar Bansal, Detective and Investigator, as complainant failed to supply him copy of the postmortem report, as such, answering opposite party is not liable to make payment of any amount under the policy secured by the deceased husband of the complainant; that this Forum has no jurisdiction to entertain and try the complaint because the controversy cannot be adjudicated in summary manner, but by the civil court after affording opportunity to the parties to lead evidence to their satisfaction; that complaint is time barred and is not maintainable in the present form; that there is no deficiency in service on

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the part of the answering opposite party; that the complainant has no locus standi and cause of action to file the present complaint and that complaint being false and vexatious is liable to be dismissed with compensatory costs. On merits, it is submitted that Sh.Ranjit Singh, deceased husband of the complainant had been maintaining saving bank Account No.3577 with the OP No.2, who secured insurance cover note No. 17258 from the answering opposite party under Sehkari Bank Beema Yojna Scheme for the persons who are maintaining account in the bank for the period 1.6.2006 to 31.5.2007. It is submitted that under the above said scheme, a sum of Rs.1,00,000/-, is required to be paid as per terms and conditions of the policy in case of accidental death of any account holder, but the complainant has violated these conditions.


As such, her claim received through her bankers has been rightly repudiated. It is also submitted that on receipt of intimation regarding death of the husband of the complainant, Sh.Satish Kumar Bansal, Detective and Investigator was deputed by the OP No.1 to investigate the factum of cause of death and he submitted his report dated 4.3.2007 that neither any FIR has been lodged nor any postmortem of the body of the deceased husband of the complainant, was performed, to ascertain the exact cause of death. It is denied that there is any deficiency in service on the part of the answering opposite party. Rest of the averments made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.

5. On being called upon, by this Forum, to do so, learned counsel for the complainant, tendered his affidavit and photo copies of documents, Ext.C-1 to C-5 and closed evidence. On the other hand learned counsel for the opposite parties tendered in evidence affidavits of Sh. Satish Kumar Bansal, Detective & Investigator, Sh.Satyan Kapur, Manager

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(Legal) and photocopies of documents Ext.OP-1 to OP-10 and closed the evidence on their behalf.

6. We have heard the learned counsel, for the parties and gone through, the oral and documentary evidence, adduced on record, by the parties, carefully, with their kind assistance.

7. Admittedly, Ranjit Singh S/o Sh.Amar Singh, husband of the complainant had been maintaining saving bank Account No.3577 with the OP No.2, before his death 0n 11.12.2006. The factum of death is also proved by the copy of DDR No.10 registered at Police Station, Sardulgarh on 11.12.2006 Ext.C-6 and copy of death certificate Ext.C-4 tendered in evidence by the complainant and his affidavit Ext.C-1.

8. Learned counsel for the complainant Sh.Randeep Sharma, Advocate, has submitted that DDR has been registered at the instance of the complainant to the effect that he sustained injuries in road accident while riding a motorcycle and said fact is proved by duly sworn affidavit of the complainant and even the investigator deputed by the opposite parties, after receipt of intimation about the death of the husband of the complainant, has accepted her version, as such, repudiation of the claim, is not justified, merely because postmortem of the body of the husband of the complainant, was not preformed or that no proceedings were initiated by the police under Section 174 of the Cr.P.C. Learned counsel further argued that as the OP No.3 has repudiated the claim without any cogent reason, as such, there is deficiency in service on his part because of which complainant is entitled to seek compensation on account of mental and physical harassment and costs of filing of the instant complaint. Learned counsel argued that even remaining opposite parties cannot escape liability, because they have failed to pursue the case of the complainant after receipt

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of intimation of death of her husband from her and to convey the information immediately after receiving intimation regarding repudiation of her claim.

9. On the other hand, learned counsel for the opposite parties No.1 & 2, Sh.S.K.Singla, Advocate, has argued that his clients have processed the case of the complainant with great promptitude after receiving intimation regarding death of the husband of the complainant and her claim was to be honored by the OP No.3 under the policy. As such, no liability can be fastened upon them and complaint against them is liable to be dismissed.

10. We find merit in the argument advanced by the learned counsel for the OPs No1 and 2. The insurance policy extending benefit of accident through death, has been issued by OP No.3 covering risk of life of account holders maintaining accounts with OP No.2 and they have deposited the premium in time. The complainant has not disclosed the date on which she conveyed the intimation to OP No.1 about the death of her husband in road accident. As per copy of notice Ext.C-2, the notice has been served upon the Ops No.1 and 2 on behalf of the complainant on 12.12.2007 to the effect that death of the husband of the complainant has taken place on 11.12.2006. As such, there is delay of about one year on the part of the complainant herself to convey intimation about factum of death of her husband to the opposite parties. The claim of the complainant has been repudiated by the OP No.3 vide office letter dated 31.3.2007. The investigator appointed by the OP No.3 has given the copy of the report after conducting detailed inquiry on 4.3.2007. In the peculiar facts and circumstances of the case, the Opposite Parties No.1 and 2 have no personal liability to make the payment of claim under the insurance policy

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issued by the OP No.3. Since the opposite parties No.1 & 2 have performed their obligation towards the deceased account holder, with due diligence, therefore, we are unable to accept the plea of the complainant that there is no deficiency in rendering service on the part of these opposite parties, even if, there is some delay on account of conveyance of information regarding repudiation of claim by the OP No.3 after receipt of the same in their office. As such, OPs No.1 & 2 cannot be burdened with any liability to pay compensation and costs on account of deficiency in service, as prayed for in the complaint by the complainant.

11. Learned counsel for the Opposite Party No.3, Sh.Naval Goel, Advocate, has argued that complicated questions of law and facts are involved in this case because cause of accident of deceased husband of the complainant is not clearly proved, as such, controversy cannot be adjudicated by the Consumer Fora in summary manner. Learned counsel urged that complainant be relegated to the civil court, because controversy can be resolved, after affording opportunity to the parties, to lead evidence, to their satisfaction.

12. The argument advanced by the learned counsel for the OP No.3 has failed to sound well with us because documentary evidence adduced on record by the complainant regarding cause of accident is enough to clinch the matter and has gone unrebuttable. Even the investigator appointed by OP No.3, to ascertain the said fact, has not suspected the genuineness of the claim made by the complainant. The OP No.3, has neither examined any person, who may be personally conversant with cause of death of the deceased husband of the complainant, nor any person, has appeared before the investigator, in the course of inquiry about the cause of accident of the deceased, on the basis of which, it may be held,

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that husband of the complainant died due to some other reason and at some other place. Since facts are clear on record, therefore, in our opinion, there is no necessity of relegating the complainant to the civil court. The argument advanced by the OP No.3 thus stand repelled.

13. Learned counsel for the OP No.3 has also argued that claim of the complainant has been repudiated in terms of report of investigator appointed by the OP No.3, because she has not got the postmortem of the body of her husband performed, and neither registered F.I.R., nor prepared inquest report of cause of death of her husband has been prepared by the police. Learned counsel has further argued that one of the conditions of the policy for honoring the claim under the insurance policy, is that in the event of death, it is incumbent upon the claimant to furnish copies of postmortem and quest reports, in respect of the deceased, within 14 days of death. Learned counsel has further argued that complainant has failed to supply the requisite documents, to the opposite parties, within the period provided in the insurance policy, therefore, her claim, has been rightly repudiated by the OP No.3, as per terms and conditions of the policy and there is no deficiency in service on his part, which may invite indulgence of this Forum, as sought in the instant complaint.

14. The argument advanced by the learned counsel for the OP No.3, has failed to impress us because, as observed in the earlier part of the order, factum of death of the husband of the complainant in road accident, is proved by the copy of DDR No.10 Ext.C-3 registered at Police Station, Sardulgarh on 11.12.2006 and said fact is corroborated by the affidavit of the complainant Ext.C-1 and copy of death certificate Ext.C-4. The opposite parties have not led any evidence to the contrary on the basis of which it may be held that accident has taken place due to some other

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reason or at some other place. After recording the statement of the complainant and other co-villagers, the investigator of OP No.3 in his report Ext.OP-4 has accepted the version of the complainant in its entirety. He has also concluded that after the accident in Sardulgarh, he was referred to Civil Hospital, Mansa, where he succumbed to his injuries sustained by him in the road accident on 11.12.2006. It may not be out of place to mention here that DDR No.10 has been registered at the instance of the injured himself about the cause of accident. He has no reason to absolve the real culprit to give false version as death has been caused by some person or in other manner just to claim the amount payable under the policy. Since the police has accepted the version of the deceased husband of the complainant, after spot inspection and decided not to register the FIR on the basis of DDR and he succumbed to the injuries in the hospital, therefore, occasion never arose for preparation of inquest report.


Since cause of accident was not suspicious, therefore, there was no need for postmortem examination. As per the admitted facts, death has taken place on 11.12.2006 and complaint has been filed by the complainant on 18.3.2008, i.e. within a period of two years, as provided in Section 24 of the Act, as such, complaint is otherwise within limitation.

15. In the face of these facts, we have no hesitation in holding that repudiation of the just claim of the complainant by OP No.3 for non production of postmortem and inquest report, amounts to deficiency in service, for which the complainant has been subjected to mental and physical harassment and had incurred avoidable expenses for filing the instant complaint.

16. For the aforesaid reasons, we dismiss the complaint against Opposite Parties No.1 & 2 and accept the same against Opposite Party

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No.3, who is directed to pay a sum of Rs.1,00,000/- to the complainant under the insurance policy and to pay compensation in the sum of Rs.2,000/- for harassment and a sum of Rs.1,000/- as costs of filing of the instant complaint. The compliance of the order be made within the period of two months from the date of receipt of the copy of this order,failing which the complainant shall also be entitled to payment of interest at the rate of 9 percent per annum from the date of this order, till date of actual payment.

17. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record.

Patnam Raju S/o Ramaiah,

Age Major, Occ: Auto owner, Resident of House

No. 174, Cherla Gopularam Village,

Mandal Kondapur, Medak District.



….. Complainant

Vs

M/s Reliance General Insurance Company Limited,

6-4-8, First Floor, Vijetha Sanjeevini,

Appartments, Opposite Gandhi Hospital,

Musheerabad, Hyderbad.

….Opposite parties






O R D E R



This complaint is filed Under Section 12 of Consumer Protection Act, 1986 to direct the opposite party to pay Rs.1,00,000/- with interest 12% p.a. towards damages and to pay costs of Rs.5,000/-.

The averments in the complaint in brief are as follows:

1. The complainant insured his auto bearing No. AP 23 V 7387 with the opposite party through their agent on 12.03.2008 by paying a premium of Rs.2,591/- and he issued a proposal cum cover note No.200703151952 in favour of the complainant. The agent informed that the opposite party will furnish the original policy within 30 days from the date of issue of the proposal cum cover note. But the complainant did not receive the policy within 30 days and his oral requests including through telephone made to the opposite party and to the agent proved futile. Therefore he got a legal notice issued on 21.06.2008 to the opposite party for the policy. Even after receipt of the notice the opposite party has neither issued the policy nor replied.


Traffic Police and officials of RTA are creating so many problems to the complainant as he does not posses the original policy, as such the complainant is not in a position to run his auto properly which is the only source of living to him and to his family. The complainant has not been running the auto regularly from the date of the proposal cum cover note till the date of the filing of the complaint and there by the auto is also spoiled. For the negligence of the authorized agent the opposite party is vicariously liable. The complainant is a consumer and the negligence of the opposite party and their authorized agent is deficiency in service within the meaning of the Consumer Protection Act. Hence this complaint.

2. The complaint is resisted the opposite party by filing a counter to the following effect:

Policy was issued to the complainant from Reliance General Insurance Company Ltd., Wadala (W) Mumbai on 19.03.2008 and the same was sent by the opposite party to the insured on the same date to the address given by the complainant. Agent of the company of the opposite party is a necessary party to the complaint as the complainant has taken the copy from the agent. Therefore the complaint is liable to be dismissed for non joinder of necessary party. The opposite party learnt that after receiving the original policy only this complaint is filed to harass the opposite party. The opposite party denies that the complainant did not receive the policy and requested orally and by telephone. They are all false. It is further false to allege that the complainant faced so many problems from traffic police and officials of RTA and he lost his lively hood.


In fact the complainant came to know about the address of the opposite party after receiving the policy only and then only filed this false case. The complainant is not entitled to Rs.1,00,000/- towards damages as policy was already issued to him. The complainant himself is harassing the opposite party by filing this false complaint. It is reliably learnt that after receiving the cover note and policy copy, the complainant furnished copy to the Motor Vehicles Inspector, Sangareddy in crime No. 35/2008 and with this it is clear that the complainant received the policy already.


The address of the complainant mentioned in the cover note, legal notice and in the house hold card are different. The complainant deliberately furnished different addresses at different times. The opposite party is filing copy of the policy in this forum and the same may be given to the complainant even though the opposite party sent the policy copy already and hence the complainant may be dismissed.

3. In order to prove the averments of both parties, their evidence affidavits are filed and marked Ex. A1 to A4 on behalf of the complainant and Ex.B1 on behalf of the opposite party. Written arguments of both parties filed and oral arguments are also advanced on either side. Perused the record.

4. The point for consideration is whether the complainant is entitled to damages of Rs.1,00,000/- and costs of Rs.5,000/- as prayed for in the complainant?

Point:

5. The case of the complainant is that he is owner of auto bearing No. AP 23 V 7387 and he paid premium amount to the agent of the opposite party for a policy, who issued a proposal cum cover note No. 200703151952 to cover the risk of auto from 12.03.2008, but the opposite party did not send policy copy within one month and inspite of requests of the complainant to the opposite party and their agent for the policy, there was no response and for want of policy the complainant could not run the auto from the date of proposal cum cover note. The income derived by running auto is the only source of living for him. According to him he could not run the auto as police and officials of RTA are creating so many problems to him. But according to the opposite party on 19.03.2008 itself the policy was sent to the complainant to the address given in the cover note, however a copy of it is filed before this forum for being delivered to the complainant.


The opposite party denied the contentions of the complainant that police and officials of RTA created so many problems to the complainant for want of policy therefore the complainant could not run the auto from the date of cover note and there by he lost his living and the auto was also spoiled. According the learned counsel for opposite party proposal cum cover note is as good as policy and it serves the purpose.

6. Ex.A1 is proposal cum cover note, Ex.A2 is copy of legal notice issued by the advocate for the complainant to the opposite party, Ex.A3 is postal registration receipt and Ex.A4 is house hold card of the complainant. Ex. B1 is the copy of the policy.

7. It is not in dispute that the complainant paid premium of Rs. 2,591/- to the agent of the opposite party on 12.03.2008 for a policy to his auto bearing No. AP 23 V 7387 under Ex.A1 proposal cum cover note bearing No. 200703151952 . Te contention of the opposite party is that the agent to whom the premium is paid by the complainant is a necessary party and the complaint is liable to be dismissed for non joinder of necessary party. This contention is not acceptable as the opposite party sent the policy directly to the complainant but not through their agent. Moreover payment of premium by the complainant to the agent of the opposite party is not in dispute.

8. According to the complainant he did not receive the policy within 30 days from the date of Ex.A1 proposal cum cover note and his requests orally and through telephone to the opposite party and their agent proved futile. Opposite party denied the said contentions. According to it on 19.03.2008 i.e. one week after Ex.A1 they received the policy from their Mumbai Office and on the same day it was sent to the complainant. Because the complainant denied receipt of the same the burden is on the opposite party to prove sending of the policy to the complainant.


The learned counsel for the opposite party argued that they have sent the policy through ordinary post as usual to the address given in the proposal cum cover note therefore they do not have any proof to show that the policy was sent to the complainant. Moreover the complaint has given different addresses at different times and in this connection he has referred to Ex.A1, A2 and A4. In Ex.A1 the address of the complainant is mentioned as Cherlagopularam, Morlapala, Ex.A2 legal notice shows the residence of the complainant as H.No. 1-74, Cherla Gopularam Village, Kondapur Mandal, Medak District. Ex.A4 shows the residence of the complainant as House No. 1-79/2, Ch.gopularam, Kondapur Mandal, Medak District. Therefore on a perusal of Ex.A1,A2 and A4 it is observed that Ex.A1 does not contain House Number and Ex.A2 and A4 contain different house numbers.


The complainant has not alleged any personal animosities to any of the officials of the opposite party to make false representations that they sent the policy to the complainant without sending. As they discharge official duties, in their regular course of business they must have certainly sent the policy to the complainant as contended by them and because of different addresses given by the complainant, it might not have been received by him. Even otherwise till the receipt of the policy a person who paid premium is entitled to use proposal cum cover note as the same is as good as policy.

9. The learned counsel for the opposite party then argued that they reliably learnt that the auto of the complainant met with an accident on 12.03.2008 at 10:00 A.M. and suppressing the said fact the complainant managed to pay premium to the agent of the opposite party at 4:00 P.M. on 12.03.2008 and obtained Ex.A1 proposal cum cover note and later the time of proposal mentioned in the Ex.A1 is corrected as 9:00 A.M. On a perusal of Ex.A1 it is clearly seen that there is correction of the time and the letter ‘A’ in “A.M.” after the time. The correction lends support to the contentions of the learned counsel of the opposite party that 4-00 P.M. is corrected has 9-00 A.M. It is not known by whom the correction is made. There are initials of some body above the said corrections and they appear to be of the authorized signatory of the opposite party who signed the proposal cum cover note at the end.


Ex.A1 does not contain the signature of the complainant even though a provision is made for the said purpose at the left side bottom of the front page of it. Another aspect to consider is normally policy cum cover note and subsequent policy covers a period of one year only for insurance of motor vehicles, but Ex.A1 shows that the effective date and time of commencement of the insurance is 12.03.2008, 9:00 A.M. (the time is with correction) and date of expiry of insurance is mentioned as mid night of 11.08.2009 instead of 11.03.2009. Therefore from the above circumstances there is something fishy in the matter.



10. The contention of the complainant that police and officials of the RTA are creating so many problems to him and therefore he could not run the auto from the date of issue of Ex.A1 and there by he lost his living and further the auto is also spoiled. This contention of the complainant is totally un acceptable because as already stated above, Ex.A1 can be made use of by the complainant till he receives policy, because it is as good as policy. The complainant has not placed any satisfactory evidence in support of the problems alleged to have suffered by him at the instance of police and officials of RTA. The complainant has also not produced any proof that he did not run the auto from the date of EX.A1 and therefore it is spoiled and that he is entitled to damages of Rs.1,00,000/-.



11. In view of the circumstances discussed above we do not see any merits in the complaint and therefore it is held that the complainant is not entitled to any relief muchless the damages and costs claimed in complaint. The point is answered against the complainant.

12. In the result the complaint is dismissed. No costs.

G.Malathi W/o Anil Kumar, Aged: 35 years, Occ: Private Employee,

R/o H.No.6-7-62, Shivaji Nagar locality of Nalgonda Town and

District.

…Complainant.




Vs







1) Reliance General Insurance, Registered Office: Reliance Centre,

19, Walchand Hirachand Marg, Ballard Estate, Mumbai-400 001.

Represented by its Authorized Signatory.

2) Medi Assist India (P) Limited, 49, Shilpa Vidya Road, Sarkar-

Industrial Lay Out, 1st Main, J.P.Nagar, 3rd Phase, Bangalore.

Represented by its Vice President.



…Opposite Parties.







This complaint coming on before us for final hearing on 18-8-2009, in the presence of Sri J.Bhaskar Reddy, Advocate for the Complainant, and Sri A.Raja Ranga Rao, Advocate for Opposite Party No.1, and Opposite Party No.2 having been called absent, and on perusing the material papers on record, and having stood over for consideration till this day, the Forum passed the following:






O R D E R





1. It is the say of the complainant that she had obtained a Health

Insurance Policy from Reliance General Insurance, vide Policy No.282510201314, dated 29-11-2007. The Plan opted was Silver for a period of one year, i.e. from 29-11-2007 to 28-11-2007 and the sum



Contd…2

- 2 -

assured was for an amount of Rs.1,00,000/-. For that she had paid Rs.900/- towards premium to the Opposite Party No.1 for health insurance, the policy which covers the complainant, her daughter namely G.V.S.Mounvy and her husband namely G.Anil Kumar. To that effect the Opposite Party No.1 had issued a Healthwise Policy Certificate, Premium Paid Certificate and Cashless Card to the complainant. But, the complainant claims that in the issued policy only her name and her daughter’s name was mentioned, in fact the said policy covers her husband also. She further says that the Opposite Party No.2 is Third Party Administrator through Opposite Party No.1 and this policy is payable by Opposite Party No.1 for health and medical expenses.



She further says that on 29-4-2008 her daughter namely GVS Mounvy suffered with walking difficulty with her legs, for that the said Mounvy was referred to Yashoda Hospital, Secunderabad for treatment, where she was admitted. At the time of admission she had submitted the Cashless Card which was issued by Opposite Party No.1 in the said hospital and the same was informed to the Opposite Party No.2 through fax on dated 1-5-2008. In response, the Opposite Party No.2 had sent a letter asking for further information of the patient, in reply to that she had sent all the information required under Cashless Benefit Scheme such as details of the ailment and Doctors Certificate.


In spite of sending the required information the Opposite Party No.2 had denied the Cashless facility without any reason to avoid her claim. For the said reason she had to borrow money from others in order to meet the medical expenses and for the surgery recommended by the doctors. The total expenditure incurred in the hospital was Rs.38,517/- towards operation and Rs.1,476/- for medical bills which comes to a total of Rs.39,993/- which was paid by her from the loan amounts.

Contd…3

- 3 -

For the above said reasons the complainant had issued legal notice to the Opposite Parties on 2-6-2008 claiming them to pay the said amounts which is covered in the policy. On receiving the above said legal notice, the Opposite Party No.2 had given a reply on 14-6-2008 asking her to send all paid bills. For that she immediately sent all necessary documents and bills through Registered Post on 25-6-2008 and the same was received by Opposite Party No.2 on 28-6-2008.


After that the Opposite Party No.2 again sent a message to her demanding to send further all original documents through Yahoo.com email on 5-8-2008, on receipt of the above said email she had sent all original documents through Registered Post on 26-8-2008. Again after receiving the said documents the Opposite Party No.2 had sent another message through yahoo.com email on 15-10-2008 stating that no intimation is received within seven days from the date of hospitalization of her daughter and the documents were also not reached within time from the date of discharge. So, the policy conditions were violated, in view of that they are repudiating her claim.



Her claim is that as she had not violated the policy conditions she had finally requested the Opposite Parties to settle the claim on 10-11-2008, but the same was denied by the Opposite Parties. For the above said reason she had filed this complaint. Where this Forum has territorial jurisdiction for the reason that she had paid the above said premium through a Demand Draft bearing DD.No.292882, dated 29-11-2007 which was taken from Andhra Bank, situated in Nalgonda.



For all the said reasons she prays that the Opposite Parties are liable to pay her the amounts paid in the hospital, i.e. Rs.39,993/-



Contd…4

- 4 -



with interest and an amount of Rs.40,000/- towards mental agony and deficiency of service along with costs.



2. The Opposite Party No.1 in his counter denies all the allegations made in the complaint except those that are specifically admitted. He says that he does not know the facts mentioned in Para No.3 of the complaint. He admits that the complainant had obtained a Unique Healthwise Policy from them and they had issued a Policy under that scheme to the complainant with cashless facility. He further says that the complainant is not a consumer as defined under Chapter-1 Section-2(d) of C.P.Act, 1986. He further says that it is a pre condition for invoking the provisions of the C.P.Act that the complainant would satisfy the requirement that she would come under the purview of consumer as defined in the Act, where the basic requirement is not fulfilled as the complainant is not locus standi to file this complaint against them.


He further says that the complainant had violated the conditions and also there is a breach of agreement that any dispute should be referred to Arbitrator, further he says that this Forum does not have jurisdiction to entertain this complaint. Hence, the complaint should be dismissed. He further says that the documents which were sent by the complainant reached them late and there was no intimation from the hospital, and they did not receive the intimation within seven days and the documents which were sent by the complainant did not reach them within time from the date of discharge. For that the policy conditions are violated. The expenditure incurred by the complainant in the hospital are put to strict proof by the complainant.



Contd…5



- 5 -



He further says that they reserve their right to file an additional counter in case of need arises so as to furnish better particulars in order to just and fair conclusion and to do justice between the parties. Hence, this complaint is liable to be dismissed.



3. In support of her claim, the complainant had filed her affidavit along with documents which are marked as Exhibits A-1 to A-34. In support of their counter, the Opposite Party No.1 had marked one document, i.e. Ex.B-1 and did not file any affidavit.



4. Opposite Party No.2 had received the notice which was sent through this Forum, but did not represent. Hence, called absent.



5. Now the points that arise for consideration in this complaint are:



1) Whether the complainant in this complaint is a consumer or not? Whether this complaint comes under the jurisdiction of this Forum or not?



2) Whether the Opposite Parties No.1 and 2 are liable to pay the claim made by the complainant?



3) Whether the complainant is entitled to the claimed amount in his complaint or not?



4) If so, to what extent the complainant is entitled of the claim?





6. POINT No.1: Where the Opposite Party No.1 had contested that the complainant in this complaint is not a consumer Under Section 2(d) of C.P.Act, 1986. In Section 2(d)(ii) it is clearly mentioned that “ (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other



Contd…6

- 6 -



than the person who (hires or avails of) the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose) is a Consumer”.



In the above said para it is clearly defined that whoever avails the services of Opposite Party for a consideration comes under the definition of consumer. Hence, we hold that the complainant in this complaint is a consumer.



Where the Opposite Party No.1’s another contention was that this Forum does not had territorial jurisdiction, but where the Opposite Party No.1 is one of the branch involved in general insurance under the name Reliance General Insurance under the parental company ‘Reliance Capital Company’ and this parental company has another branch in the name of Reliance Money which had a franchise in Nalgonda and in which they deal with all sorts of money transactions including life and general insurance. Under the above said reasons this Forum had territorial jurisdiction to entertain this complaint.


Hence, the complainant has a locus standi to file this complaint in this Forum. Coming to the Arbitrator’s point which was stated in the Opposite Party No.1’s counter where the complainant had multiple options to file a complaint for seeking justice the complainant is at liberty to choose any one of them. As the C.P.Act, 1986 is not in derogation with any existing laws the complainant is at his will to choose this Forum.



Contd…7



- 7 -



7. POINT No.2: It is not in dispute that the complainant paid a sum of Rs.900/- to the Opposite Party No.1 to avail their services and obtained a Health Insurance Policy under option “Silver” for a period of one year, i.e. from 29-11-2007 to 28-11-2008 for an assured sum of Rs.1,00,000/-. For that the Opposite Party No.1 had issued a Policy Certificate with bearing No.282510201314 which is marked as Ex.A-2 with cashless facility which covers the complainant herself and her daughter namely GVS Mounvy, in which they had stated that Medi Assist India Private Limited which is situated at Bangalore hereinafter called as Opposite Party No.2 will act as a “Third Party Administrator” and also issued a Premium Certificate which is marked as Ex.A-3.


Further it is not in dispute that GVS Mounvy had approached Dr.Sanjib Kumar Behera who is a consultant in Yashoda Hospital, Secunderabad with a problem in her walking on 3-3-2008 and where it was diagnosed that “Grade-1 Spondylolisthesis with Spondylolysis”, which is marked as Ex.A-7, and started treatment for that.


Again on 29-4-2008 when she approached the same consultant doctor for further check-ups it was detected that she had a problem of adductor and knee flexion contracture bilateral and line of treatment recommended was adductor tenotomy and knee flexion release which is to be done by operation, marked as Ex.A-9 and Ex.A-11 which shows that the same was intimated to the Opposite Party no.2 by the complainant. Ex.A-12 shows that the Opposite Party No.2 informed the complainant to send further information and treating doctor certification stating since when claimant is suffering from spastic paraparesis. For the said reason the complainant obtained a Certificate which is marked as Ex.A-6 from treating doctor, i.e. Dr.Sanjib Kumar Behera on 3-5-2008 and the same

Contd…8



- 8 -

was sent to Opposite Party No.2 by fax with an acknowledgement which is marked under Ex.A-11, and after receiving the same the Opposite Party No.2 sent a letter to the hospital authorities stating that they are unable to extend cashless facility to the complainant showing the cause as ‘discrepancy in the duration’ and advised them to collect the hospital expenses from the pocket of the complainant and advised the complainant to submit the bills to them for a possible reimbursement subjected to the terms and conditions of the policy which is marked as Ex.A-13.



For the above said reasons as stated by the complainant in her complainant that she had borrowed money in emergency for the treatment of her daughter and paid the same in the hospital may be true.



Ex.A-14 is a legal notice sent by the complainant through her Advocate Sri D.Swamy Das, Nalgonda to the Opposite Parties No.1 and 2 with a request to reimburse the said expenditure which was incurred by her at the hospital. Ex.A-15 is a reply letter sent by Opposite Party No.2 to the advocate of the complainant stating that some of the conditions of the policy was violated by the complainant, one of which is that the insured had not sent full information within 30 days of the discharge of the patient from the hospital for reimbursement.


In it they also asked the complainant to submit the bills raised in the hospital for reimbursement. Ex.A-18 is a reply letter written by the complainant to the Opposite Party No.2 with an apology and further asking them to settle the claim. Ex.A-19 is an email sent to the complainant by the Opposite Party No.2 to furnish further required information of administration notes, daily doctor notes and nurse chart etc. And they also asked her to provide the original bills of nursing charges and medical charges.

Contd…9

- 9 -

Exs.A-21 to A-26 are the attested copies of hospital records and bills which were sent to Opposite Party No.2 by the complainant on 26-8-2008 through Speed Post as Ex.A-20.



Ex.B-1 is a medical opinion given by the medical insurance panal doctor of Opposite Party No.1 namely K.V.Shenoy, in which he stated that after scrutinizing of the documents sent to him and the x-ray reports it is evident that the insured is a case of hereditary spastic paraparesis already seen at the time of 1 ½ years with knee flexion contracture and hip adductor contracture bilaterally as mentioned in the indoor case papers in the claim file. Hence, the claim may be repudiated on the following two clauses. 1) Policy Exclusion 1 (Pre-existing ailment), 2) Policy Exclusion-10 (congenital anomaly or defect). But, where the Opposite Party No.1 did not produce the affidavit of the above said doctor his report cannot be considered.



After going through all the recorded facts, we come to a conclusion that there was deficiency of service on the part of Opposite Parties No.1 and 2 because after receiving the initial intimation on 1-5-2008 and further information on 3-5-2008 from the complainant, the Opposite Party No.2 did not act accordingly and released the facility of cashless card which was issued at the time of policy and after receiving of all original hospital records and the bills from the complainant on 26-8-2008 for reimbursement of the expenditure incurred by the complainant at the hospital, who is a third party administrator of Opposite Party No.1.



Coming to the part of Opposite Party No.1, as the complainant is a consumer of Opposite Party No.1 who paid the premium for the policy

and the same was received by them and appointed a third party

Contd…10



- 10 -

administrator to mediate the claims is responsible for the actions of Opposite Party No.2. Hence, the Opposite Party No.1 is also at fault in rendering services.



The Opposite Party No.1 did not produce any recorded evidence that the complainant suppressed knowingly that the insured G.V.S.Mounvy had a pre-existing ailment and congenital anomaly and got treatment for that since the age of 1 ½ years before taking of the policy.



Under the above observations the Opposite Party No.1 alone is liable to pay the claim made by the complainant, where he is the sole insurer of the insured.



7. POINT No.3: After perusing all the material and recorded facts under Points No.1 and 2, we opine that the complainant is entitled for the claim.



8. POINT No.4: In the result, we direct the Opposite Party No.1 alone to pay to the complainant a sum of Rs.38,517/- (Rupees Thirty eight thousand five hundred and seventeen only) expenditure which was incurred in the hospital by the complainant along with interest at the rate of 9% per annum from the date of filing of this complaint till realization and costs of Rs.1,000/- (Rupees One thousand only) within 30 days from the date of receipt of this Order.

Sandeep Ohri son of Shri Satish Ohri, Red Road, Hoshiarpur.

......... Complainant

versus


1.

The Manager, Cargo Motors Pvt. Ltd., BSF Chowk, G.T. Road, Jalandhar.
2.

Fint India (P) Ltd., Plot No. B-19, MIDC, Industrial Area, Rajan Gaon, Pune-412210.
3.

Reliance General Insurance Co., Anil Dhirubhai Ambani Group, SCO 212-214, First Floor, Sector 34, Chandigarh.


......... Opposite Parties

1.

The complainant namely Sandeep Ohri has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the complainant got his car bearing registration No. PB-08-571 comprehensively insured from OP No. 3.
2.

It is the case of the complainant that when he was coming from Amritsar to Hoshiarpur via Tanda Road, the said car was hit by a motor cycle. The complainant is holding a valid and effective driving licence. The car got damaged to a considerable extent. The complainant immediately informed OP No. 1 for lifting the car from the site of accident.
3.

It is the allegation of the complainant that since 24.9.2007, the car is parked in the workshop of OP NO. 1 and has not been repaired. The complainant contacted OP No. 1 on telephone, but of no avail. The complainant is daily incurring the expenditure to the tune of rs. 2000/- to hire a taxi for attending his office at Jalandhar and Amritsar. The complainant got issued a notice through Advocate dated 6.11.2007, whereby the OP No. 1 was called upon to hand over the car after repairs or to supply the new car.

4.

It is further the allegation of the complainant that the car of the make, which was purchased by the complainant from OP No. 1 is no longer manufactured by OP No. 2, as its spare parts are not available, therefore, the said car will not become roadworthy. The complainant does not want to retain this vehicle and is interested for its replacement.
5.

It is further the case of the complainant that after the accident, the claim was lodged with OP NO. 3. That OP No. 3 vide letter dated 18.8.2008 informed that the claim file was closed on 25.10.2007 due to non-availability of spare parts.
6.

The OP No.1 filed the reply. The preliminary objections vis-a-vis maintainability, the complainant is not a consumer, estoppel, jurisdiction and non-joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant has violated the terms and conditions of the warranty by installing LPG Kit. That there was not time frame or agreement regarding the repair of the vehicle. It is further replied that the vehicle had been repaired, but the complainant is not taking delivery of the vehicle nor has paid the repair bill. The replying OP is entitled to recover Rs. 100/- per day as garage charges from 12.11.2007 onwards.
7.

It is further replied that the vehicle in question had been purchased by the complainant from M/s. Cargo Motors and the same was insured with M/s. Reliance General Insurance Company at Jalandhar vide Temporary Registration No. PB-08-PT-0571. The complainant has not produced any FIR or Police Report and Photographs with regard to the accident. It is further replied that the car was brought to the workshop of M/s. Cargo Motors at Jalandhar on 24.9.2007 in damaged condition. The complainant was required to produce the relevant papers. The actual process to assess the loss to the car started on 8.10.2007. The complainant had failed to produce the RC and other documents. The car was fully repaired and became roadworthy on 12.11.2007. That despite of various requests, the complainant has failed to take the delivery of the car. The complainant also failed to pay the necessary repair charges as accident claim is not covered under the warranty. It is further replied that the spare parts of the car are available in the market.
8.

The opposite party No. 2 filed a separate reply. The preliminary objections vis-a-vis jurisdiction, cause of action and suppression of material facts were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the vehicle in question does not suffer from any manufacturing defect. As per terms and conditions of the warranty, the replying OP is liable only, if the vehicle is found defective to the satisfaction of the company. The claim of the complainant is not covered under the terms and conditions of the warranty. The complainant had violated the terms and conditions of the warranty, therefore, the company is not liable for any loss or damages, direct or consequential to the vehicle. It is further replied that as per information received, the vehicle had been repaired and is lying ready for delivery, but the complainant is not taking the delivery of the vehicle. The spare parts of the Fiat vehicles are readily available with all the dealers and manufacturer.
9.

The defence of opposite party No. 3 was ordered to be struck off vide order dated 20.8.2009.
10.

In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, letter dated 18.8.2008 – Ex. C-2, insurance policy – Mark C-3 and closed the evidence.
11.

In rebuttal, the opposite party No. 1 tendered in evidence affidavit of I.D. Sharma, Sr. Manager (Finance), Cargo Motors – Ex. OP-1, another affidavit of ID Sharma – Ex. OP-3, whereas, opposite party No. 2 tendered in evidence affidavit of Parshana Panday – Ex. OP-2, warranty terms – Mark-A and closed the evidence on behalf of opposite parties No. 1 and 2.
12.

The learned counsel for the complainant and opposite parties No. 1 and 2 filed written arguments. We have gone though the written submissions and record of the file minutely.
13.

The allegation of the complainant is that when he was coming from Amritsar to Hoshiarpur, the car bearing registration No. PB-08-571, which was comprehensively insured with OP No. 3 – Reliance General Insurance Company was hit by a motor cycle. The car got damaged to a considerable extent. The said car is parked in the workshop of OP No. 1 since 24.9.2007, and has not been repaired. It is the allegation of the complainant that the car of the make, which was purchased by the complainant from opposite party No. 1 is no longer manufactured by OP No. 2, as its spare parts are not available, therefore,the said car cannot become roadworthy, therefore, the complainant is interested for the replacement of the car in question. It is also the case of the complainant that the claim was lodged with OP No. 3, who vide letter dated 18.8.2008 informed that the claim file was closed on 25.10.2007 due to non-availability of spare parts.
14.

The opposite party No. 1 has raised the plea that the complainant has violated the terms and conditions of the warranty by installing LPG Kit. That there was no time frame or agreement regarding the repair of the vehicle. The OP No.1 has claimed that the vehicle had been repaired and became roadworthy on 12.11.2007, but the complainant is not taking its delivery nor has paid the repair bill. The vehicle in question had been purchased by the complainant from M/s.Cargo Motors and the same was insured with M/s. Reliance General Insurance Company, Jalandhar.
15.

The opposite party No. 2 has raised the plea that the vehicle in question does not suffer from any manufacturing defect. As per terms and conditions of the warranty, the replying OP is liable only, if the vehicle is found defective to the satisfaction of the company. The claim of the complainant is not covered by the warranty, as he has violated the terms and conditions, therefore, the Company is not liable for any loss or damages. The spare parts of the Fiat vehicles are readily available with all the dealers and manufacturer.
16.

The opposite party No. 1 has admitted in the reply that the car was fully repaired and became roadworthy on 12.11.2007. The complainant has failed to take the delivery of the car and has also failed to pay the necessary repair charges.
17.

The complainant has averred in the complaint that opposite party No. 3 vide letter dated 18.8.2008 has closed the claim file on 25.10.2007 due to non-availability of spare parts. On the other hand, the opposite party has alleged in the reply that the spare parts of the Fiat vehicles are readily available with all the dealers and manufacturer. The OP No. 1 had admitted that the car was fully repaired and became roadworthy on 12.11.2007.
18.

Mark-A is the copy of the Warranty Card and its Clause 7 (b) is relevant and material to decide the present controversy between the parties, as such, the Clause 7 (b) is being reproduced :

“7. This warranty shall cease to operate and become void if:

(a) xx xx xx xx

(b) The Car has been subjected to negligence, accident, improper use participation in Motor race/rallies and/or any alteration of what so ever nature;”


19.

Admittedly, the car in question bearing registration No. PB-08-571 met with an accident on way from Amritsar to Hoshiarpur via Tanda Road, therefore, as per Clause 7 (b) of the warranty card, referred to above, the warranty ceases to operate and becomes void, therefore, the opposite party No. 2 cannot be held liable to pay any compensation.
20.

The matter does not rest here. Even the Clause 6 of the said Warranty Card – Mark-A reads that time spent or any delay in carrying out repairs shall not be relied upon for claiming any compensation/damages or extension of warranty. The period of warranty shall not be deemed to have been extended by repairs or replacement of the parts. This being so, it is held that opposite party No. 2 is not liable to pay compensation/damages on account of delay in carrying out repairs of the vehicle bearing registration No. PB-08-571.
21.

Vide para no.4 of the complaint, it is alleged that the accident of the vehicle took place on way from Amritsar to Hoshiarpur via Tanda Road i.e., within the jurisdiction of this Court, therefore, it is held that this Court has got the jurisdiction to try the present complaint.
22.

Ex.C-2 is the repudiation letter dated 18.8.2008 and its close scrutiny makes it clear that the claim has been closed by Reliance General Insurance on 25.10.2007 due to non availability of spare parts for the repair of the vehicle.
23.

As held in para supra(s) , the car has been fully repaired and is lying with opposite party No. 1, therefore, in the circumstances, we are of the opinion that the ends of justice would be well met, if direction is issued to opposite party No. 3, who had closed the claim file on 25.10.2007, due to non-availability of spare parts, to appoint the surveyor/investigator to assess the loss to the car in question, and thereafter, to settle the claim.
24.

As a result of the above discussion, the Insurance Company is directed to appoint the surveyor / investigator to assess the loss to the car in question and then to settle the claim within 30 days from the date of order and in case, the complainant does not feel satisfied, he will have the right to approach this Court by filing a fresh complaint. No order as to costs. The complaint stands disposed of accordingly. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Varinder Kumar son of Dalip Singh aged 35 years, resident of Ward No. 12, VPO: Tanda, District Hoshiarpur.


....... Complainant

versus


1.

Reliance General Insurance Co. Ltd., through its Branch Manager, Court Road, Hoshiarpur.
2.

Reliance General Inurance Co. Ltd., through its Manager, SCO 212-214, Sector 34-A, Chandigarh.
3.

Reliance General Insurance Co. Ltd., through its concerned officer, registered office : Reliance Centre 19, Walchand Hira Chand Marg, Ballard Estate, Mumbai.


...... Opposite Parties





1.

The complainant namely Varinder Kumar has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Stated briefly, the facts of the case are that the complainant got his vehicle (Tavera) bearing registration No. PB-07S-8101 insured from 30.4.2008 to 29.4.2009 from the opposite parties.
2.

It is the case of the complainant that on 23.8.2008, the said vehicle met with an accident in District Ludhiana. That DDR No. 5 dated 24.8.2008 was recorded at PS Salemtabri, Ludhiana. That information with regard to the accident was also given to the opposite parties. The opposite parties appointed surveyor, Rajesh Khanna, who inspected the vehicle.
3.

It is further the case of the complainant that he suffered loss of Rs. 5,00,000/-. It is the allegation of the complainant that the OP No. 2 repudiated the claim on the ground that the vehicle was used for carrying passengers. The repudiation of the claim is stated to be illegal, as the complainant never used the vehicle for any commercial purpose. It is further the grouse of the complainant that he received letter dated 11.12.2008 from the opposite parties qua which the insurance policy had been cancelled. The said act of the opposite parties is also stated to be illegal, hence this complaint.
4.

The opposite parties filed the joint reply. The preliminary objection with regard to suppression of material facts was raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that Tavera Car of the complainant was insured with the replying opposite parties from 30.4.2008 to 29.4.2009. It is also admitted that the complainant lodged the claim. It is denied that the complainant suffered the loss of Rs. 5,00,000/-.
5.

It is further replied that as per terms and conditions of the insurance policy, the vehicle insured with the replying opposite parties could not be plied for hire and reward. The matter was duly investigated, and it came in the investigation that the vehicle in question was being plied for hire and reward at the time of accident. The said use of the vehicle was in breach of policy terms and conditions i.e. “Limitation as to Use”, therefore, the claim of the complainant was repudiated and intimation in this regard was sent to him vide letter dated 20.10.2008. It is further replied that the loss to the vehicle was assessed at Rs. 2,93,414/- by the surveyor.
6.

In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, insurance policy – Mark C-2, R.C. - Mark C-3, DDR dated 24.8.2008 – Mark C-4, notice – Mark C-5, cancellation of insurance policy – Mark C-6 and closed the evidence.
7.

In rebuttal, the opposite parties tendered in evidence affidavit of Satyam Kapoor – Ex. R-1, investigation report – Ex. R-2, survey report – Ex. R-3, consent letter – Ex. R-4 , affidavit of Kashmir Singh - Ex. R-5, statement of Gurmeet Singh – Mark R-6, statement of Varinder Kumar – Mark R-7 and closed the evidence on behalf of the opposite parties.
8.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
9.

Admittedly, the Tavera car bearing registration No. PB-07S-8101 was insured with the opposite parties from 30.4.2008 to 29.4.2009. The opposite parties have raised the plea hat the matter was duly investigated and it came to light that the vehicle in question was being plied for Hire and Reward at the time of accident, therefore, the claim of the complainant was repudiated.
10.

Now, the only point which calls decision from this Court is whether the vehicle bearing registration No. PB-07S-8101 was being plied for Hire and Reward at the time of accident? The answer to this is in the negative.
11.

The learned counsel for the opposite parties raised the argument that Sh. Satyam Kapur, Asstt. Legal Manager qua his affidavit – Ex. R-1 had stated that the matter was investigated through Investigator, M/s. Royal Associates. It came to light that the vehicle was being plied for Hire and Reward at the time of accident.
12.

The copy of the Investigation report is Ex. R-2. The Survey Report is Ex. R-3 on the record. The consent letter by the complainant is dated 3.10.2008- Ex. R-4 whereby he agreed to accept a sum of Rs. 1,60,000/- in full and final settlement of the claim. The affidavit of the investigator is Ex. R-5.
13.

The learned counsel for the opposite parties made a reference to the statement of Gurmit Singh son of Sh. Gurbachan Singh- Mark R-6, wherein he has stated that on 23.8.2008, they hired the vehicle No. PB07-S-8101. That 7/8 passengers were sitting in the said vehicle. That the said vehicle met with an accident. Mark R-7 is the statement of Varinder Kumar Tuli son of Dalip Singh Tuli, wherein he has stated that on 23.8.2008, the vehicle No. PB-07-S-8101 was carrying passengers at the time of accident. It was argued that the vehicle was being used for Hire and Reward, therefore, the claim is not payable.
14.

Admittedly, the opposite parties have not produced on record the affidavits of said Gurmit Singh and Varinder Kumar Tuli in support of their statements – Mark R-6 and Mark R-7, therefore, the said statements lose their evidentiary value, as such are not sufficient to prove that the vehicle was being used for Hire and Reward.
15.

The opposite parties have produced on record the Consent Letter of the complainant – Ex. R-4, wherein he has agreed to accept the amount of Rs. 1,60,000/- as full and final settlement of the claim. Since the complainant has agreed to receive the amount of Rs. 1,60,000/- qua Consent Letter – Ex. R-4 as full and final settlement of th claim, therefore,he cannot ask the insurance company to pay the amount of Rs. 5,00,000/-.
16.

As a result of the above discussion, it is held that the opposite parties have illegally repudiated the claim of the complainant,which amounts to deficiency in service on their part, consequently, the complaint of the complainant is accepted and the opposite parties are directed to pay Rs. 1,60,000/- to the complainant with interest @ 9% per annum from the date of filing of the complaint i.e. 26.3.2009 till realization. Litigation expenses are assessed at Rs. 1,000/- to be paid by the opposite parties to the complainant within one month from the date of receipt of copy of the order. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Ashok Kumar son of Punjab Ram resident of 41/4, Jawahar Nagar, Ludhiana.

(Complainant)

Vs.



1. Reliance General Insurance, Feroze Gandhi Market, Ludhiana through authorised signatory.



2. Paramount Health Services Pvt. Ltd. 138, 3rd floor, Feroze Gandhi Market, Ludhiana through authorised signatory.

(Opposite parties)







O R D E R



1. By paying premium of Rs.1492/-, complainant from opposite party no.1 obtained Reliance health wise policy for the period 11.4.2007 to 10.4.2008. On 26.1.2008, complainant due to chest pain, diapharesis was admitted in Satguru Partap Singh Apollo Hospital, Ludhiana. He was diagnosed being Acute Anterior Wall MI, Coronary artery disease, hypertension leading to coronary angiography on 28.1.2008 and revealed TVD and treated for underwent PTCA and stenting to LAD on 29.1.2008 and discharged on 31.1.2008. He spent Rs.1,70,000/- on his treatment. Insurance claim along with medical bills, certificate was lodged with opposite party no.1 who referred the case to opposite party no.2 and then vide letter dated 20.2.2008 repudiated the same on the ground that history of hypertension of the complainant was since two years. Under exclusion clause of the policy, it was pre existing ailment. Hence, claim not covered under the policy.


This repudiation by filing the present complaint under section 12 of the Consumer Protection Act, 1986 has been claimed to be null, void and illegal. It is averred that the complainant was not suffering from any disease nor it was pre-existing disease. Therefore, the claim was illegally repudiated.

2. Opposite party no.2 in reply admitted obtaining insurance coverage by the complainant and lodging claim thereunder, which was repudiated. But claimed that repudiation is valid and legal as the claim was got investigated from Paramount Health Service Pvt. Ltd TPA of opposite party no.1. After receipt of report of investigation from the TPA and going through the record, it was rightfully repudiated.


Because, exclusion clause of the policy was attracted as disease of the complainant was pre-existing. There was no deficiency in service on their part and the complainant not entitled for any compensation.

3. Opposite party no.2 did not contest the complaint and as such was proceeded ex-parte.

4. In order to prove their respective contentions, complainant and opposite party no.1 led their evidence by way of affidavits and documents.

5. We have heard the arguments addressed by the ld. counsel for the complainant and opposite party no.1, gone through file, scanned the documents and other material on record.

6. As obtaining insurance health coverage from the opposite party by the complainant is conceded along with lodging of claim under the policy and repudiating the same. Therefore, we need not to elaborate such aspects. Suffice to say that purpose of the case would be solved if we straight way come to reasons considered to be valid by opposite party no.1 to repudiate the claim.

7. Ex.C2 is communication under which the claim lodged by the complainant was repudiated. This letter reads as under:

“With regards to the above mentioned claim we would like to inform you that we have thoroughly scrutinized the documents submitted by you in support of the claim and have arrived at the following conclusion that:

39 years old male was admitted between 26.01.08 to 31.01.2008 as a case of Hypertension with coronary artery disease. Date of joining of HWG policy of RFCIL is 1104.2007. As per documents attached patient has the history of Hypertension since two years. As per exclusion no. (1) Pre existing ailments are not covered, hence claim stand repudiated.

In view of the above, the claim reported by you is not admissible as per the terms and conditions of the policy.

Hence, we are unable to reimburse/admit any amount under the captioned claim”



8. It is manifest that claim of the complainant was declined, as he had history of hypertension since two years. So, his case fully covered under pre-existing ailment so regretted to pay the same.

9. In these circumstances, now question is whether hypertension would be a disease so as to term it pre-existing at the time of purchase of the policy.

10. Be stated that the present policy under which claim was lodged by the complainant was purchased by him for the first time. In other words, it was his first medi-claim policy obtained by the complainant which came in operation on 11.4.2007 till 10.4.2008.

11. Complainant as per his case due to chest pain etc. got admitted in Satguru Partap Singh Apollo Hospital, Ludhiana. Ex.R.6 is discharge summary showing that he was admitted on 26.1.2008, operated on 28.1.2008 for CAG, on 29.1.2008 for PTCA and discharged on 31.1.2008. He was diagnosed of :

· Acute anterior wall MI

· Coronary artery disease

· Hypertension



12. In brief history of the patient recorded that he complained of chest tightness, diapharesis 2 hours prior to admission and one episode 2 days prior to admission. Under the history, it is recorded:

“Patient came with complaint of chest rightness, diapharesis 2 hours prior to admission and one episode 2 days prior to admission”



13. On angiography report Ex.R.8 recorded that final impression of the ailment was triple vessel disease and advised PTCA and stenting to LAD.

14. After lodging of claim by the complainant, he was required by opposite party to furnish medical practitioner’s statement. In compliance with medical practitioner’s statement, Ex.R.16 was provided by the complainant to opposite party which in addition to signed by the treating doctor of Satguru Partap Singh Apollo Hospital, Ludhiana was also signed by the complainant. Against column no.4 of the statement, it was mentioned that complainant was suffering from disease HTN/CAD-AWMI/PUD+ Stent to LAD and symptom appeared for the first time on 24.1.2008. But column no.7 of this report is relevant. Wording of column no.7 is as under:

“Whether the present ailment is pre-existing caused by any pre-existing ailment? If yes, please specify.”



15. Aforesaid column no.7 is answered by the complainant and his doctor Sh. Rajinder pal Singh as under:

“Hypertension-two years. Chronic Smoker”



16. On the strength of this format containing statement of treating doctor of the complainant, signed by the doctor who treated him and the complainant, it was argued that the complainant was suffering from hypertension since 2 years and was a chronic smoker. Disease of hypertension was such that had caused heart problem as there is connected link between disease of hypertension being a chronic smoker and the heart problem. But while purchasing the insurance policy, complainant suppressed this pre-existing disease as apparent from the proposal form Ex.R.25. Therein he answered in negative i.e. not suffering from pre-existing ailments. And as a result under the policy Ex.R23, opposite party rightfully and legally repudiated the claim.


Because, the disease was pre-existing for which insurance company is not liable to make any payment. On the other hand, on behalf of the complainant, it was argued that hypertension is not any disease, nor the complainant can be termed guilty of suffering with any such disease. Complainant for the first time came to know all the problem when felt chest pain and got examined in Satguru Partap Singh Apollo Hospital, Ludhiana. Therefore, exclusion clause would not be applicable.

17. The battle now appears to be legal between the parties whether in circumstances of the case hypertension with which the complainant is proved to have suffered since two years along with being a chronic smoker would amount to a disease or not.

18. On aforesaid legal battle, ld. counsel for the complainant contended that hypertension is not a disease and non disclosing it while purchasing the insurance policy for the first time, would not amount to suppression of material facts. Contrary was arguments of the opposite parties.

19. Complainant in support of his contention referred us to decision of the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh reported in II (2008) CPJ 213 titled as Life Insurance Corporation of India Vs. Sushma Sharma. Hon’ble Mr. Justice Sh. S.N. Aggarwal, President of the Punjab State Consumer Disputes Redressal Commission, Chandigarh in that case held that hypertension and diabetes are not material diseases and due to non disclosure claim can not be repudiated under section 45 of the Insurance Act. His Lordship concluded that hypertension is not material disease as in these days of fast life, majority of the people suffer from hypertension.

20. In another case Life Insurance Corporation of India & Anr Vs. Sukhpal Kaur, reported in 2008 (2) CPC, 34, Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh, again took the view that taking of liquor and suffering from hypertension for 10 years would not amount to suppression of material information.

21 The direct authority on the point is reported as Madhu Jain (Mrs.) Vs. National Insurance Company Ltd. II (2008) CPJ-137 (Delhi State Commission). In that case, policy holder had never been treated, hospitalized or undergone operation for any disease and consumer being layman, was held not supposed to know medical terminology of disease for which he was never hospitalized and treated or undergone operation. It was also held that day- to-day problems which are normal wear and tear of human life, would not be diseases required to be referred in proposal form.

22 Such legal aspect of the case came for decision before Hon’ble National Commission in a case reported as Life Insurance Corporation of India vs. Sajida Begum III (2007) CPJ-319 (NC). In that case, insured was suffering from hypertension for 15 years and diabetes for 10 years. The insured died due to cardiac respiratory arrest and acute renal failure. Insurance company had repudiated the claim for reasons of suppressing pre-existing disease such as diabetes mellitus, hypertension and diabetic nephropathy. The Hon’ble State Commission of Andhra Pradesh had allowed the claim against which insurance company went in appeal, which was dismissed by the Hon’ble National Commission. In other words, diabetes, hypertension etc. were not taken to be amounting to disease.

23. In case Aviva Life Insurance Co. India Pvt. Ltd. Vs. T. Umavathi reported in III (2007) CPJ 336 (NC) insured was diabetic since 12 years and there was no evidence that he had prior knowledge of disease which was disclosed to him a day before death by treating hospital. Such was held not amounting to suppression of pre-existing disease.

24. Hon’ble National Commission in case Santosh Kanwar Vs. Life Insurance Corporation of India reported in 2008 (3) CPC 562 has clearly settled the legal preposition that unless suppression of disease is material, it should not be made ground for repudiation of claim.

25. On the other hand, ld. counsel for opposite party in order to show that hypertension would amount to a disease, suppression of which would be fetal affecting the insurance policy, drew our attention to a case reported in II (1995) CPJ 62 (NC) titled as United India Insurance Co. Ltd. Vs. Biman Krishna Bose. In that case insured was suffering from hypertension for the last five years which he did not disclose while getting the policy and claim was repudiated. Repudiation was concluded proper.

26. Second authority relied by the opposite party is Life Insurance Corporation of India vs. Piari Devi & Ors. reported in II (2008) CPJ 156 of Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh, wherein disease of myocardial infarction which was an old disease was suppressed and the same was concluded fraudulent suppression. But in the instant case, question is different whether hypertension would be a disease. Hence, authority has no connection with the point in issue.

27. Next authority relied is IV (2007) CPJ 248, titled as R.K. Duggal Vs. Life Insurance Corporation of India (Hon’ble Union Territory Consumer Disputes Redressal Commission, Chandigarh. In that case insured was suffering from diabetes and other diseases, which he had not disclosed and died due to respiratory arrest. Said disease was concluded having nexus with death. As facts of the case are distinct from the present one, so, this ratio of the case would be of no help to the opposite party.

28. Further opposite party pointed to a case reported in IV (2003) CPJ 91 (NC) titled as LIC of India & Ors. Vs. Smt. Shashi Bala. In that case person was diabetic which he did not disclose and there was found nexus between diabetes mellitus and heart attack, so, repudiation was held justified. In the instant case, the ratio of the case is also different from the one with which we are dealing.

29. When hypertension would not be a disease, so, non disclosure at the time of purchasing the policy consequently in our view would also not amount to suppression of material facts amounting to commission of fraud by the insured with the insurance company. Neither such problem of hypertension can be taken to be a pre-existing disease. Ratio of the Hon’ble National Commission in case United India Insurance Co. Ltd. Vs. Biman Krishna Bose (supra) was decided on 12.1.1995.


Whereas in subsequent decision Hon’ble National Commission in case Aviva Life Insurance Co. India Pvt. Ltd. Vs. T. Umavathi III (2007) CPJ 336 (NC) Hon’ble National Commission has held that a person who was alcoholic suffering from diabetes mellitus and jaundice would not be sufficient to prove suppression of material facts or that insured had prior knowledge of such disease. On similar analogy there is no proof that complainant had knowledge of suffering with hypertension. So, he can not be accused of suppressing material facts qua his health from the opposite party.

30. In view of the aforesaid circumstances, we are of the view that opposite party was not justified in repudiating the claim. Consequently, we allow this complaint and sequel thereto direct opposite party to settle and pay insurance claim of the complainant under the terms and conditions of the insurance policy within 45 days of the receipt of copy of order. In peculiar circumstances of the case, no order as to compensation and costs. Copy of the order be supplied to the parties free of costs.

Sri.A.Ramachandra

S/o. late Ayodhya Ramaiah

Aged about 70 years, Complainant

Residing at Sharadadevi Nagar,

Tumkur city





AND



1. The Manager,

T.G.M.C. Bank,

J.C.Road, Tumkur Opposite Parties

2. The Manager,

Reliance General Insurance,

Manandi Plaza, No.3,

St.Marks Road,

Bangalore-560 002




ORDER




2. Through this complaint, the complainant prays for an order against the Opposite Parties (hereinafter called as the OPs for short) to pay Rs.9,51,867/- with interest at 18% per annum from the date of accident till its realization and impose penalty on the OPs for deficiency in service with interest at 12% per annum from the date of complaint till its realization.

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

It is contended that, he has approached the 1st OP seeking for sanctioning of loan with respect to purchase of one Hitachi. The 1st OP has sanctioned the loan in favour of the complainant for a sum of Rs.12,00,000/-. Out of the said loan amount, the complainant has purchased the TATA Hitachi – Ex-70 vehicle bearing chassis No.3074, model TAT Excavator 2007, M.S.C.No.0703. It is further contended that the 1st OP has insisted the complainant to take the insurance policy to the said vehicle from the 2nd OP. Accordingly the vehicle was insured with the 2nd OP. The 1st OP himself has paid the premium amount of the said policy. However, the complainant has not signed the insurance proposal forum. Likewise the OPs in collusion, got insured the above said vehicle according to their whims and fancy. The complainant was under the impression that the said insurance covered all risks and he has paid the loan amount to the 1st OP as agreed upon.



4. It is further contended that, the said Hitachi vehicle met with an accident on 27-4-2008 at the work spot near Kolar. In the said accident, the vehicle was toppled and suffered extensive damages. After that, the complainant had approached the 2nd OP and sought for settlement of the claim as per the terms and conditions of the insurance policy since the policy was valid as on the date of accident. The 2nd OP being the insurer of the vehicle is liable to pay the compensation amount as claimed supra, but the 2nd OP has failed to settle the claim. Instead of that, the 2nd OP has issued an endorsement dated 24-6-2008 stating that, the vehicle was not covered under the commercial vehicle (Miscellaneous vehicle) package policy.



5. It is further contended that, the complainant has left the said damaged Hitachi vehicle at Swastik Enterprises, Tumkur branch for repairs and got repaired by spending a sum of Rs.1,35,867/- .That on account of repair work, the said vehicle was parked in the workshop for four months,. During the said period, the complainant has suffered the following losses;

1. Rent at the rate of Rs.500/- per hour, for 10 hours per day Rs.500 X120 days ( 4months) (after deducting fuel expenses) incurred loss of Rs.6,00,000/-

2. Rent of lorry for carrying this Hitachi Rs.20,000/- per month i.e. for 4 months incurred a loss of Rs.80,000/-

3. Salary to operator, Helpers, writer-cum-Addl. Lorry driver with Bata Rs.20,000/- per month for 4 months a sum of Rs.80,000/-

4. Interest on loan installment at the rate of Rs.14,000/- PM for 4 months a sum of Rs.56,000/-

5. Total Hitachi repair charges a sum Rs.1,35,867/- likewise the complainant sustained a loss of Rs.9,51,867/-



6. It is further contended that, the complainant is not aware of the fact that, the vehicle was not covered with the risk of “Toppling of the Crane”. However, the complainant was under an impression that, the said vehicle had been covered with all the risks. But the OPs in collusion with each other have insured the said vehicle according to their whims and fancy without obtaining his signatures and with an intention to cause wrongful loss to the complainant. On 27-2-009 the complainant got issued a notice to the OPs. The said notice was served on the OPs. Even inspite of service of the notice, the OPs have remained silent and thereby shown their negligence and deficiency in service. Hence this complaint.



7. The OPs who have been notified of the complaint entered appearance through their counsel and resisted the same by filing their objections.



8. The gist of the objections is as follows:

In the objections filed by the 1st OP, it is admitted that this OP has insisted the complainant to insure the vehicle but not with the 2nd OP. This OP while emphatically denying all the complaint averments as false and untenable interalia pleaded that, the complainant had borrowed a loan from this OP to purchase the vehicle from one Srikanta S.Patel who borrowed loan by hypothecating the vehicle with City Corporation Finance India Ltd, Bangalore where the said vehicle was insured with National Insurance Co, Ltd, and the said Insurance policy was in force upto 22-4-2008. The complainant borrowed a loan on 31-1-2008 to purchase the vehicle by clearing the loan with M/s. City Corporation Finance India Ltd, Bangalore. By clearing the loan on the very same day, the complainant hypothecated the vehicle in favour of this OP.


When the insurance was lapsed on 22-4-2008, this OP requested the complainant to get the renewal of insurance. The complainant insured the vehicle with reliance general insurance Co. on 22-4-2008 which was valid from 23-4-2008 to 22-4-2009. As such the allegations made in the complainant are all false. Further the complainant has cleared the loan of this OP fully on 13-9-2008. Thus, this OP is not liable to pay any damages much less the alleged damages of Rs.9,51,867/-. Accordingly he prays for dismissal of the complaint.



9. In the version filed by the 2nd OP, it is alleged that, the complaint is not maintainable either in law or on facts and the same is liable to be rejected in limine.



10. This OP while emphatically denying all the complaint averments as false and untenable interalia pleaded that, this OP Company had issued a commercial vehicle (Misc. vehicle) package policy bearing No.1401382343100660 valid from 23-4-2008 to 22-4-2009 in the name of A.Ramachandra in respect of TATA Excavator bearing chassis No.3074, Engine No.0703. The liability is subjected to the terms and conditions of the policy. As per the policy conditions, toppling slip of the vehicle/crane is not covered and as such the company is not liable to indemnify the insured. The policy is not extended to cover risk of damages to I/V, due to overturning while being used as operational tool for trade.



11. It is further submitted that, immediately after receiving the information about the incident, without prejudice, the company had arranged for survey and the surveyor after investigation had submitted his report estimating the approximate net loss at Rs.86,078/-. Assessment of damages/loss shall not be construed as an admission of liability. After thorough verification/scrutiny, the company had come to the conclusion that, the claim of the complainant was not payable and accordingly the same had been intimated to the complainant through RPAD on 24-6-08. Therefore, the company is not liable for any consequential loss.



12. It is further submitted that, this forum has no jurisdiction to entertain the said complaint as the rejection of the claim is done as per law and the conditions of the policy. There is no cause of action as alleged. The complainant has not come with clean hands. He made the above complaint with ulterior motives to make a wrongful gain at the cost of this OP, taking undue advantage of the CP Act. Accordingly he prays for dismissal of the complaint.



13. In support of the case, the complainant and OPs have filed affidavits and pressed into service of several documents. The complainant has filed written arguments. The documents produced by the complainant and 2nd OP came to be marked as Ex.-P-1 to P-9 and Ex.R-1 to R-4. We have heard the learned counsels appearing for the parties. We have also examined the material available on records



14. The questions that arise for our considerations are:

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

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



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

Point No.1: Yes, against the 2nd OP

Point No.2: As per order



REASONS



16. At the very outset, we must point out that, though the complainant had alleged the collusion between the OPs has failed to establish the same through cogent evidence. Admittedly, the complainant is a signatory to the insurance policy of the vehicle taken from the 2nd OP. This is substantiated through Ex-P-2. When he is a party to the contract and a signatory, it is for him to place cogent evident to show that, his signature to the document was taken by the OPs under threat, promise or practicing undue influence. Neither these facts have been pleaded nor there is any cogent evident in this behalf. Therefore, we can not believe the version of the complainant that the OPs in collusion each other have created the document according to their will and wish.



17. On merits of the case, it is contended by the learned counsel appearing for the OPs that, the vehicle in question was toppled while working on a lose soil. It is further contended that, when the heavy vehicle was used in a loose soil, the complainant should have taken due care and caution about the protection of the vehicle and the driver thereof. It is his contention that, toppling of the vehicle due to loose soil is not covered under the clauses of the damages covered under Section 1 to 10 of the insurance policy. Therefore, it is necessary to examine the said clause. It reads as thus:

“Section I – Loss of or Damage to the vehicle Insured

1. The company will indemnify the insured against loss or damage to the vehicle insured hereunder and / or its accessories whilst thereon

i. By fire explosion self ignition or lightning

ii. By burglary house breaking or theft

iii. By riot and strike

iv. By earthquake (fire and shock damage)

v. By flood, typhoon, hurricane, storm, tempest, inundation cyclone, hailstorm, frost

vi. By accidental external means

vii. By malicious act

viii. By terrorist activity

ix. Whilst in transit by road rail inland waterway lift elevator or air

x. By landside rockslide



18. A careful reading of the clauses on which the company has undertaken indemnify the insured against the loss or damaged to the vehicle more particularly “by accidental external means; and by landslide and rockslide”, it is clear that the toppling of the vehicle due to loose soil will also come within the purview of those two clauses. Therefore, we are of the opinion that, the act of the OPs in repudiating the claim of the claimant is not well founded. From the invoice produced by the complainant at Ex-P-4, it is seen that, he has paid a sum of Rs.1,35,867/- towards repairs charges. In so far as, the claim of the complainant for Rs.6,00,000/- at the rate of Rs.500/- per hour for 10 hours per day is concerned there is no cogent evident. Likewise, there is no evidence placed on record to substantiate his claim covered under Sl.No. b to d. No scrap of paper or cogent evidence is placed on record to establish these claims. Therefore, we are not inclined to grant such reliefs. Thus, we hold that, the complainant would be entitled for recover a sum of Rs.1,35,867/- towards repairs charges. In the result, we pass the following:

ORDER



The complaint is allowed in part with costs directing the 2nd OP to pay a sum of Rs.1,35,867/- within 8 weeks from the date of this order. Failing which, the said amount shall carry an interest at 10% per annum from the date of this complaint till the date of payment. The costs of the proceedings is fixed at Rs.1000/-. The complaint against 1st OP stands rejected but without costs.

1. Revathi Sathish Das,

W/o. Late Satish Das,

Aged about 41 years,

Mundi House,

Near Jarandaya Temple,

Boloor, Mangalore.



2. Master Sidharth Satish Das,

S/o. Late Satish Das,

Aged 16 years,

Mundi House,

Near Jarandaya Temple,

Boloor, Mangalore.

Represented by his mother and

Natural Guardian Revathi Satish Das

(The Complainant No.1 and 2 are the

legal heirs of the

deceased Complainant Satish Das) …….. COMPLAINANTS







VERSUS



1. Reliance General Insurance Company Ltd.

Maximus Commercial Complex,

4th Floor, Allocyous Road,

Light House Hill, Hampankatta,

Mangalore.






2. Media Assist India Pvt. Ltd.,

3rd Floor No.49, 1st Main Road,

Sarakki Industrial Layout,

J.P. Nagar, 3rd Stage,

Bangalore – 78. ……. OPPOSITE PARTIES






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

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

It is submitted that, the complaint was initially filed by Mr.B.Sathishdas, who was a insured of Reliance Healthwise Policy bearing Policy No.282510034471. The said Sathishdas availed the policy on 26.9.2007 from the Opposite Party No.1 and Opposite Party No.2 is the 3rd party Administrator. The Sum insured was Rs.1.00 lakh for the period from 26.09.2007 to 25.09.2009. It is submitted that the above policy includes benefits as domiciliary hospitalization. The above said Sathisdas on 15.8.2009 was diagnosed with cancer left tonsil T3 N3 MO by Doctors of Fr. Muller’s’ hospital. He undertook treatment in the above said hospital and on 22.8.2008 the request of the Complainant for cashless hospitalization dated 25.8.2008 rejected by the Opposite Party stating that the complaints are existing prior to inception of the policy and the claim repudiated under the policy exclusion clause No.1. On 30.10.2008 the Complainant submitted the claim form and all the medical prescriptions and certificates to the Opposite Party but the Opposite Party not honoured the claim.


On 22.3.2009 the insured Sathidas passed away due to cancer after filing of this complaint and the legal heirs i.e., widow and son of the deceased brought on record and contended that the repudiation made by the Opposite Party is not just and valid and filed this complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay Rs.2.00 lakhs as per policy terms and conditions and also pay Rs.2,00,000/- for compensation and Rs.20,000/- claimed as litigation expenses.



2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 appeared through their counsel filed version and admitted the policy but it is contended that the insured has misrepresented the Opposite Party by concealing the facts of pre-existing disease. It is submitted that the insured’s illness was existing prior to the inception of the policy hence the claim was repudiated under policy exclusion No.1 and submitted that there is no deficiency and denied the claim of the Complainant and prayed for dismissal of the complaint.

Opposite Party No.2 despite of serving notice neither appeared nor contested the case till this date. Hence we have proceeded exparte as against the Opposite Party No.2. The acknowledgement placed before the FORA marked as court document No.1.



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

(i) Whether the Complainants prove that the Opposite Parties committed deficiency in service?



(ii) If so, whether the Complainants are entitled for the reliefs claimed?













(iii) What order?



4. In support of the complaint, Mrs.Revathi Satish Das (CW1) – Complainant No.1 filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. Ex C1 to C44 were marked for the Complainants as listed in the annexure. Opposite Parties not led any evidence but filed policy i.e., Ex R1. The Complainants and Opposite Party No.1 produced notes of arguments along with citations.

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

Point No.(i): Affirmative.

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



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

In the present case, the facts which are not in dispute is that the insured one Mr.Sathishdas had availed reliance Healthwise policy bearing No.282510034471 on 26.9.2009 for the insured sum of Rs.1,00,000/-. The said policy is valid from 26.9.2007 to 25.9.2009 (as per Ex C1). The said policy included benefits such as Domiciliary Hospitalization, day care treatment, pre and post hospitalization, critical illness. It is also undisputed that the said Mr.Sathishdas on 15.8.2009 was diagnosed with cancer left tonsil T3 N3 MO and he has undertook treatment against the cancer with intermediary breaks in Fr. Muller’s Hospital, Kankanady, Mangalore. On 22.8.2009 i.e., during the pendency of the complaint the insured Mr.Sathishdas passed away due to the cancer and the Complainant No.1 is the widow and Complainant No.2 is the son of the deceased insured brought on record.

Now the dispute between the parties before the FORA is that the insured Mr.Sathishdas was diagnosed with cancer at Fr. Muller’s Hospital on 15.8.2008. On 22.8.2008 the Opposite Party had rejected the request of the Complainant for cashless hospitalization vide fax dated 25.8.2008 stating that complaints are existing prior to inception of this policy and repudiated the claim under exclusion clause No.1. The Complainants contended that the repudiation is arbitrary and not correct.

The Complainant No.1 filed affidavit and produced Ex C1 to C44. Opposite Party not led any evidence but filed policy i.e., Ex R1.

On considering the materials on record, it is the bounden duty of the Opposite Party to prove that the policy holder i.e., the insured Mr.Sathishdas had pre-existing disease at the time of obtaining the policy and which excludes under the terms and conditions of the policy. In a case of like this nature, the entire burden lies upon the Opposite Party Company to prove before the FORA that the claim falls under the exclusion clause.

However, it is worthwhile to refer policy condition before discussing the points on merits. The Exclusion Clause No.1 defines as under:-

The Company shall not be liable to make any payment for any claim directly or indirectly caused by, based on, arising out of or howsoever attributable to any of the following:

“1. Pre-existing diseases/illness/injury/conditions – All diseases, illness, injuries/conditions which are pre-existing when the cover incepts for the first time. However, this policy shall provide for payment of hospitalization expenses for treatment relating to pre-existing diseases, illness, injury from the 3rd year of the policy after two continuous renewals or from the 5th year of this policy after 4 continuous renewals, as the case may be, subject to the plan opted”.



From the above clause it is very clear that if the Opposite Party Company proves that the claim of the insured falls within the purview of the above exclusion clause then definitely the Complainants are not entitled for any reimbursement of the claim under the policy.

In the given case, except the policy nothing has been placed on record in order to substantiate the case of the Opposite Party. On the other hand, the Complainant produced the discharge summary as well as histopathology reports, doctor’s diagnosis, laboratory report, medical bills and prescriptions before this FORA. On careful scrutiny of the above documents it revealed that the insured Sathishdas diagnosed as left neck metastasis with skin involvement from Ca (L) tongue and after the entire diagnosis it is revealed that Sathishdas who has been diagnosed to have carcinoma left tonsil T3 N3 MO. He has been treated with Chemoradiation with IMRT for 7 weeks and underwent comprehensive neck dissection on the left side and several other treatments have been given and subsequently on 22.3.2009 Sathishdas passed away due to the cancer.


There is no record to show that the insured had pre-existing disease at the time of obtaining the policy. The above disease diagnosed by the doctor reveals that he had diagnosed to have/Carcinoma left tonsil T3 N3 MO for the 1st time. Only after the final diagnosis the insured came to know that the disease suffered by him was a cancer and underwent Chemoradiation, neck dissection etc. etc. We are very surprise to note that how the Opposite Party can presume that just because the histopathology report confirm the cancer of carcinoma left tonsil T3 N3 Mo, they cannot assume that the insured was aware of the above disease or the insured had a pre-existing disease. As we know, some of the cancers may not be within the knowledge of the patients till it reaches to the last stage.


There is no evidence on the record to show that the policy holder ever taken any treatment for the alleged disease prior to his admission in the above said hospital. A person might be suffering from disease like cancer but he may not aware of the same till it reaches to the last stage or other stages. The question always, which has to be determined, is, was the pre-existing disease to the knowledge of the insured. This knowledge can be attributed if the person takes some or the other treatments from a doctor/hospital. In the given facts and circumstances of the case, the insured was not either in the immediate past nor at any stage admitted in the hospital or underwent any treatment. There is no evidence that the insured knew about the disease at the time of taking of the insurance policy. Under such circumstances, the defence taken by the Opposite Party Company has no merits and there is no proof that the insured was aware of the disease at the time of obtaining the policy nor he has suppressed the above disease.

In this connection we would refer the judgment rendered by the Punjab State Consumer Disputes Redressal Commission, Chandigarh: II (2005) CPJ 3; in National Insurance Company Ltd. versus Suraj Prakash referred by the counsel for the Complainant dealing with the similar contention. The Hon’ble State Commission held that –

Consumer Protection Act, 1986 – Section 15 – Insurance – Medi-claim policy – Insured admitted for checkup, diagnosed having Aorto Occlusive Disease – Claim repudiated on ground of suppression of pre-existing disease – No evidence produced in support that Complainant knew about disease at the time of taking of policy. Complaint allowed by Forum – order upheld in appeal.

(Paras 4 and 5)



Similarly in the present case, there is no evidence produced in support that insured knew about the disease at the time of obtaining the policy.

In view of the above discussion, we are of the considered opinion that the Opposite Party Company miserably failed to prove the suppression of material facts/pre-existing disease. In the absence of any cogent/ material evidence, we hold that the repudiation made by the Opposite Party Company is not just and valid which amounts to deficiency in service.

As far as the medical reimbursement is concerned, the policy condition under the head critical illness reproduced herebelow:

Critical illness:

If, 30 days after the inception of this Policy, the Insured/Insured Person is at any time during the policy period required to undertake treatment for a Critical Illness as defined herein above, the Sum Insured specified in this Policy shall be doubled specifically for the treatment of such critical illness.

This Double Sum Insured mentioned in this feature is exclusive and specific for the treatment of the diagnosed critical illness as defined herein above undertaken in a Hospital/Nursing Home as an inpatient and will not be available for other treatment/ hospitalization. For all other treatments/ hospitalization benefits the limits shall be Sum Insured as specified in the Schedule to this Policy unless specifically and explicitly mentioned.



From the above definition it is very clear that the critical illness such as cancer falls within the purview of that definition. In a critical illness as defined herein above, the sum insured specified in this policy shall be doubled specifically for the treatment of such critical illness. In the given case, the policy sum assured is of Rs.1.00 lakhs and the Complainants i.e., the legal heirs of the insured is entitled for the double amount i.e., Rs.2.00 lakhs. By considering the above, the Opposite Party No.1 i.e., Reliance General Insurance Company Limited is hereby directed to pay Rs.2.00 lakhs to the Complainants along with interest at 9% p.a. from the date of the claim till the date of payment. However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation. And further Rs.1,000/- awarded as cost of the litigation expenses. The payment shall be made within 30 days from the date of this order.

In the given case the Complainant No.2 is the minor the amount of Rs.1,00,000/- shall be kept in the minor’s name till he attains the majority in any of the nationalized bank in the interest of justice and rest of the amount along with interest shall be entitled by the Complainant No.1.

Since there is no contractual relationship between the Complainant and Opposite Party No.2 hence complaint against Opposite Party No.2 is hereby dismissed.



6. In the result, we pass the following:
ORDER

The complaint is allowed. The Opposite Party No.1 i.e., Reliance General Insurance Company Limited is hereby directed to pay to the Complainants Rs.2,00,000/- (Rupees two lakhs only) along with interest at 9% p.a. from the date of the claim till the date of payment and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. The payment shall be made within 30 days from the date of this order.

Kailash Yadav son of Sh.Rudal Yadav, resident of House No.1190, Sector 21-B, Chandigarh.



….…Complainant

V E R S U S

The Reliance General Insurance Company Ltd., SCO NO.145-146 (Top Floor) above VLCC, Sector 9, Chandigarh through its Authorised Officer.



..…Opposite Party



Succinctly put, the complainant purchased an insurance policy for his vehicle bearing registration No.CH03-Y-0697 for the period 2.1.2008 to 1.1.2009 and paid premium of Rs.6,915/- to the OP. During the period of insurance the vehicle met with an accident and it was transported by M/s Lakhbir Singh Dhaliwal, Crane Service after receiving Rs.3,600/- as toeing charges. The vehicle was handed over to Anil Corporation (Workshop) Tata Motors authorized service station and an estimate of Rs.1,46,878/- was forwarded to the OP.


The OP asked the complainant to furnish consent letter for having accepted Rs.60,000/- towards net of salvage/cash loss basis and the said understanding was forwarded to the OP on 18.9.2008 on a duly notarized stamp paper. He also paid Rs.2,990/- as parking charges to the said M/s Anil Corporation. After getting the vehicle repaired he demanded the sum of Rs.60,000/- but the OP did not release the same even after receipt of legal notice. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.



2] In their written reply the OP pleaded that immediately upon receipt of information, the surveyor Mr. Puneet Handa was appointed who assessed the loss to the tune of Rs.98,111.49 but as the complainant wished to get the vehicle repaired from a workshop of his choice, accordingly the surveyor assessed the loss to be settled at cash loss amount of Rs.60,000/-. It has been submitted that after verification and inspection of the records it transpired that the complainant had opted for 20% as no claim bonus from the insurance company at the time of taking the policy although he had taken a claim from his previous insurers i.e. Oriental Insurance Company and, therefore, the claim was repudiated vide letter dated 30.9.2008. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint has been made.



3] Parties led evidence in support of their contentions.

4] We have heard the ld.Counsel for the parties and have also perused the record.



5] There is no dispute about it that the matter has been settled between the parties in view of which the OP was to pay a sum of Rs.60,000/- to the complainant as compensation. However, the amount was not paid due to the reason that the complainant while getting the insurance policy from the OP had wrongly claimed No Claim Bonus whereas he, having already got the compensation from the earlier insurer, was not entitled to the same and the proposal form for claiming No Claim Bonus was to be submitted by the complainant giving this understanding that he has not earlier claimed any compensation from the previous insurer.


The OP, however, has not produced any document to suggest if any wrong information was given by the complainant to the OP in this respect. The OP was well aware that earlier the vehicle was insured with Oriental Insurance Company Limited and before issuing the policy in favour of the complainant, it was the duty of the OP to confirm whether the complainant was entitled to No Claim Bonus or not. If the OP failed in its duty to confirm this fact and issued the policy giving No Claim Bonus to the complainant, the complainant cannot be penalized for the inaction on the part of the OP Insurance Company. The claim of the complainant, therefore, could not be denied on any such ground.



6] In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly allowed. The OP Insurance Company is directed to pay to the complainant Rs.60,000/- minus (-) Rs.1307/- (No Claim Bonus as mentioned in the Policy of Insurance) i.e. Rs.58,693/- within 30 days from the date of receipt of copy of this order along with Rs.5000/- as cost of litigation, failing which the OP would be liable to pay it with penal interest thereon at the rate of 12% per annum since the filing of the present complaint i.e. 26.5.2009 till its actual payment to the complainant.

Certified copies of this order be sent to the parties free of cost.