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.

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.

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/-.

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.

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


…….. 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




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.

Present:

Sri.K.M.Thammaiah, President

Sri.D.Shivamahadevaiah Member

Smt.Girija Lady Member



Between:



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.

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










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.

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.

Sh. Rajinder (minor),

S/O Sh. Layak Ram Sisodia,

through his natural guardian Sh. Layak Ram Sisodia, Vill. Kotan Gaon, P.O. Thiroach,

Tehsil. Chopal, District Shimla, H.P.



… Complainant.

Versus



1. Sh. Naresh Sharma S/O Sh. Rama Nand r/O Adarsh Colony near C.C.I rajban, tehsil Paonta Sahib, Distt. Sirmour, H.P. ownr of offending of the vehicle.



2. Reliance General Insurance Co. through its

Executive Officer, Regd. Office Reliance centre, 19 Bal

Chand Marg Balard Estate, Mumbai 400001.

3. President Utility and Pick Up Union Nerwa, Tehsil Chopal, Distt. Shimla through its President Mahender Panta.



…Opposite Parties.








O R D E R:


This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that on, 12.08.2007, he booked 87 apple boxes in vehicle bearing registration No.HP-17B-0458 for sale to Saharan Pur, on whch date the market rate of per box was Rs.850/-, hence, the value of total boxes comes to Rs.73,950/-. He further avers that the vehicle owned by the OP No.1, when it reached, near Shiri Kiyari, it met with an accident causing damage to the apple boxes. The accident was caused due to the negligence of the driver and its owner, i.e. OPs no.1 & 4.


He further avers that the F.I.R. in relation to the accident, also came to be lodged with the concerned Police Station and the OPs were also requested to make good the loss suffered by him, but, the OPs did nothing in the matter. Hence, it is averred that there is apparent deficiency in service on the part of the OPs, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

2. The OP No.1, in its written version, to the complaint, raised preliminary objection regarding maintainability of the complaint, inasmuch, as, that the present claim does not fall within the purview of Section 12 of the Act. On merits, it is contended on behalf of the OP No.1, that the accident had occurred due to the rash and negligent driving of the vehicle by its driver namely Shri Minder Singh.


The OP No.2 in its separate reply, contended that the claim as involved in this complaint, is not covered under the Motor Insurance Policy, for which separate policy was required for covering the risks under the Cargo & Marine Policy. Hence, it is contended that there was no deficiency in service on their part.

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

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

5. It is admitted case of the parties that the vehicle owned by the OP No.1 and being driven by OP No.3, met with an accident on 12.08.2007, while it was carrying 87 apple boxes, in it, resulting damage to the apple boxes, while the vehicle met with an accident. An FIR, Annexure-A, in relation to the accident, also came to be lodged with the concerned police station.


The OP No.1, in its reply has contended, that, the vehicle at the time of the accident was being driven by OP No.3, in a rash and negligent manner, hence, the accident took place, on account of his negligence. The said fact remains un-repulsed on behalf of the OP No.3, as, he did not contest the present complaint. Since, their exists relationship of master and servant interse OP No.1 & 3, hence, in our considered view, on the principle of liability of master for tort of servant, both, the OP No. 3, is, liable, to, make good the loss of the complainant.

6. In so far as the OP No.2 is concerned, with whom the vehicle was insured by the OP No.1, no liability can be fastened on it, as the goods which were being transported in it, and suffered damage, were not insured, whereas, it was the vehicle which was insured by the OP No.1 with the OP No.2, hence, the OP No.2, is absolved of the liability.

7. Now comes the issue which requires determination by this Forum, is, the amount of indemnification. The complainant avers that the market rate of the apple boxes on, 12.08.2007, were Rs.850/- per box, hence, he, is claiming a total compensation of Rs.73,950/-. The OP No.1 in its reply, has contended that the market value of each box at that time was Rs.400/- per box. The complainant has not brought on record the rate list of the relevant date, enabling this Forum, to, hence, come to a conclusive decision qua the market value of the apple boxes.


Therefore, in the absence of cogent and reliable evidence, on record, the complainant cannot be held entitled to claim the market value at the rate of Rs.850/- per box. However, taking into consideration the reply filed by the OP No.1 wherein, he, has contended that the market value of each was Rs.400/-, we proceed to assess the cost of the apple box at Rs.500/- each, hence, the complainant, is entitled to a total compensation of Rs.43,500/ from the OP No.1.

9. Consequently, we allow this complaint and direct the OP No.1 to indemnify the complainant to the extent of Rs.43,500/-, along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 10.12.2007 till making full payment of the aforesaid amount to the complainant. The amount of damages as assessed above shall be comprised in an FDR drawn in the name of the minor and the FDR shall be enlisted only on the minor achieving majority.


The OP No.1 is also directed to pay litigation cost of Rs.2500/- to the complainant. This order shall be complied with, by the OP No.1, within a period of forty five days, after the date of receipt of copy of this order. With this, the complaint stands disposed of. The learned counsel for the parties have undertaken to collect the certified copy of this order from the office. The file after due completion, be consigned to record room.

Tmt.K.Kasthuri,

D/o Shanmugam,

3/108, Bharthiar Street,

Ammapet, Bhavani Taluk,

Erode District. Complainant.



-vs-

1. The Branch Manager,

Relience General Insurance Company Ltd

Lakshmi Complex,

Omalur Main Road,

Salem 636 004.



2. M/s. Reliance General Insurance Co., Ltd,

Anil Dhirbhai Ambani Group,

6th Floor, Reliance House,

6, Haddows Road, Nungambakkam,

Chennai 600006. Opposite parties.



This complaint is coming on 23.10.2009 for arguments before us Mr.P.K.Parameswaran, Counsel for the complainant and Mr.M.Manisekar, Counsel for the opposite parties and heard arguments and having perused documents having stood for consideration till this date this forum passed the following:



ORDER

1. The case of the complainant is briefly as follows :

The complainant is the Owner of the vehicle Maruthi Omni Van bearing registration No.TN.37 AA 3726 and the vehicle was insured with the opposite parties under policy No.1202372323100177 for the period from 23.06.2007 to 22.06.2008. While so, on 26.1.2008 when the complainant’s driver S.Asokan was driving the above vehicle near Paiyur on the National Highways near Kaveripattinam, Krishnagiri District at about 10 a.m., suddenly got fire and the vehicle totally burnt away. Immediately, the complainant’s driver lodged a complaint before the Kaveripattinam police and the police have registered a FIR. The complainant also intimated the opposite parties about the fire accident and the opposite parties’ representative came to the spot and surveyed and prepared a report bearing No.2081027529 and also informed the complainant to file a claim form immediately.

2. The complainant also approached the opposite parties office and presented the claim form with all relevant details and the estimation charge of total loss caused to the vehicle. But, there was no proper response from the opposite parties office. So, the complainant was forced to sent a letter on 12.05.2008 and then on 3.6.2008, the opposite party has sent a letter stating

“ the seating capacity of the vehicle has been altered and used from 5 to 8 in the vehicle. Under these circumstances we regret our inability to entertain your claim”.

The complainant’s vehicle was running with 4 passengers and one driver totally 5 members at the time of accident. This fact was also mentioned in the First Information Report. Hence the complainant came forward with this complaint praying to direct the opposite party to (1) settle the claim as per the claim form and (2) award a sum of Rs.4,00,000/- towards mental agony, stress and strain, and money loss and (3) to pay Rs.2000/- towards litigation expenses and cost.

3. Written version filed by the first opposite party and adopted by the 2nd opposite party is briefly as follows :

The complaint is false, frivolous, vexatious and unsustainable in law. It is submitted that the averments in Para No.1 of the complaint is generally admitted. It is admitted that on 26.1.2008 the complainant’s driver S.Asokan drove the said vehicle at about 10 a.m. the vehicle suddenly got fire. It is not correct to state that the vehicle was totally burnt away. It is false to state that immediately the complainant approached the opposite parties office and presented a claim form with all claims and estimated total loss caused to the vehicle. It is true that the opposite party’s letter dated 3.6.2008 repudiating the claim. It is also admitted that after intimation to the complainant about the accident the vehicle was inspected by the surveyor and it was learnt that the complainant had altered the seating capacity of the vehicle from 1+4 to 1+ 7. Investigation also reveals because of the alteration of the seating arrangements, there was a friction in the LPG cylinder and so the vehicle got fire. The opposite parties responded and sent the reply. On receipt of the claim form there was no question of deficiency of service. It is also submitted that the claim can be considered taking into various policy conditions and the terms of agreement between them and the complainant. If there are violation of policy condition opposite parties will not be able to oblige to pay the loss incurred by the complainant. Moreover, the vehicle was insured for a sum of Rs.1,11,250/- and the investigation reveals that the damaged vehicle could be sold for Rs.20,000/- (scrap value). It is also submitted that if the claim had been in tune with the terms and conditions of the policy, the maximum amount that could have claimed by the complainant is only Rs.91,250/-. So the complainant’s claim of Rs.4,00,000/- is arbitrary. Hence the complaint is to be dismissed with costs.

4. Basing on the proof affidavit of the complainant Ex.A1 to A5 were marked. Ex.A1 is the xerox copy of the RC book of the complainant’s vehicle. Exp.A2 is the xeorx copy of insurance certificate issued by the opposite party to the complainant’s vehicle. Ex.A3 is the Xerox copy of First Information Report No.145/2008 dated 26.01.2008 registered in the Kaveripattinam police station. Exp.A4 is the xerox copy of legal notice issued by the complainant (with photos) Exp.A5 is the xerox copy of the reply notice issued by the 2nd opposite party to the complainant.

5. Basing on the proof affidavit of the opposite parties Exp.B1 surveyor report is marked.

6. The points for consideration is :

1. Whether there is any deficiency of service as alleged ?

2. To what relief the complainant is entitled to ?

7. POINT NO.1 : It is admitted that the complainant’s vehicle bearing registration No.TN 37 AA 3726 was insured with the opposite parties Insurance company from 23.06.2007 to 22.06.2008 midnight and this has been proved by Ex.A2 insurance certificate. It is also admitted by the both parties that the vehicle in question suddenly got fire on 26.01.2008 at about 10 a.m. when the vehicle was driven by the complainant’s driver S.Asokan near Paiyur, Krishnagiri district and the vehicle burnt.

8. The only difference of opinion between the parties is the opposite parties content that the seating capacity of the complainant’s vehicle was changed from 1 +4 to 1 + 7 which led to the friction of LPG cylinder and so the vehicle got fire. The contention of the complainant is that the seating capacity of the vehicle was not at all changed and the opposite parties have not proved the same by producing any documents or proof to that effect. The learned counsel of the opposite parties argued that as per Exp.A4 photos it is clear that the seating capacity of the vehicle was 1 +7 at the time of accident. But, on seeing the xerox copies of the above photos, we are not able to conclude that the seating capacity of the above vehicle was 1 +7 at the time of fire accident.

9. Moreover, on perusal of Ex.A1 Registration Certificate it is seen that the seating capacity of the vehicle was only 5. It is also seen from the Ex.A1 Registration certificate that the complainant was allowed to use LPG apart from petrol as fuel for the vehicle. So, as contended by the complainant’s learned counsel there is no proof, that seating capacity of the above vehicle was altered from 1 + 4 to 1+7. Even in the Ex.A3 First Information Report which was lodged within 5 hours from the time of occurrence, it is seen that the driver S.Asokan has mentioned that he was driving the vehicle only with 4 passengers in the vehicle. As the First Information Report is the earliest public document, the contents of the First Information Report it is to be believe as true.

10. So, the action of repudiating the claim of the complainant by the opposite parties is not correct. Hence it is clear that the non settlement of claim being statutory negligence on the part of the insurer, amounts to deficiency of service. So, the complainant is lawfully entitled to be reimbursed for the total loss caused to his vehicle and this point is answered accordingly.

11. POINT NO.2 : The learned counsel for the opposite party contended that as per the Ex.A2 insurance certificate issued by the opposite parties, the complainant has declared the total value of the vehicle as Rs.1,11.250/- only and paid the insurance premium for that amount only. He has also argued that, while so, the complainant cannot claim a compensation of Rs.4,00,000/- for the vehicle. He has further argued that as per Ex.B1 surveyor’s report, the damaged vehicle can be sold for Rs.20,000/- as scrap and if the value of the scrap is deducted , the complainant is entitled to a sum of Rs.91,250/- only. On perusal of Ex.B1 surveyor’s report, it is seen that the surveyor has valued the scrap as Rs.20,000/-. The contention of the counsel for the opposite parties have to be accepted, because the burnt vehicle was not handed over to the opposite parties by the complainant and so it would have been sold as scrap by the complainant. So the complainant is entitled for a sum of Rs.91,250/- only as compensation for the damaged vehicle and a sum of Rs.10000/- as compensation for the mental agony, stress and strain and money loss.

In the result, the complaint is allowed. The opposite parties are directed to (1) to pay a sum of Rs.91,250/- as compensation for the damaged vehicle and (2) to pay a sum of Rs.10000/- towards compensation for the mental agony , stress and strain and money loss and (3) to pay a sum of Rs.2000/- towards costs. These awards shall be paid within a period of two months failing which, compliance entails interest at 9% p.a. thereafter till realization.

Appeal case No.237/2009

Date of institution:1.5.2009

Date of decision :11.11.2009



Reliance General Insurance, Anil Dhirubhai Ambani Group, First floor, SCO No.147-148, Sector-9, Madhya Marg, Chandigarh through its Assistant Manager Legal(claims)

….…Appellant

V E R S U S

The High court Lawyers, Public Charitable Trust (regd.) Administrative block, high court premises at Chandigarh through Ajaib Singh Tung,advocate son of Sh.Sunder Singh.

.…Respondent

Appeal U/s 15 of Consumer Protection Act,1986 against

order dated 1.4.2009 passed by Consumer Disputes

Redressal Forum-II, U.T.Chandigarh.



Argued by: Sh.Mrigank Sharma,advocate for the appellant.

Sh. Gaurav Bhardwaj, advocate for respondent.


BEFORE : Hon’ble Mr.Justice Pritam Pal, President

Maj.Gen.S.P.Kapoor (retd), Member

Mrs. Neena Sandhu,Member



JUDGMENT

11.11.2009



Justice Pritam Pal, President



1. This appeal by opposite party is directed against the order dated 1.4.2009 passed by District Consumer Forum-II, U.T.Chandigarh whereby complaint filed by the High Court Lawyers, Public Charitable Trust through Ajaib Sing Tung, advocate for the mediclaim of his wife was allowed in the following terms ;

“Keeping in view of this, it is our considered opinion that the present complaint must succeed in favour of the complainant and against the OP and we order accordingly. We pass the following order and the OP is directed to make the following payments to the complainant ;

i) to pay a sum of Rs.1.00 lac i.e. the insured sum alongwith interest @ 9% per annum on account of the mediclaim from the date of repudiation of the claim i.e. 20.11.2007 till the date of realization.

ii) to pay Rs.5000/- as cost of litigation.

This order be complied with by OP within a period of six weeks of the receipt of its certified copy by them, failing which the OP shall pay a sum of Rs.1.00 lac alongwith interest @ 15% per annum from 20.11.2007 till realization in addition to cost of litigation. ”

2. The facts culminating to the commencement of this appeal may be recapitulated thus ;

The complainant is a Charitable Trust duly registered with its office at Administrative Block, High Court Premises at Chandigarh and the complainant authorized Mr. Ajaib Singh Tung to file the claim against the OP. There were 1682 advocate members including Sh. Ajaib Singh Tung who were insured with the OP insurance company and the complainant had paid a premium of Rs.36,56,301/- to the OP insurance company for taking Group insurance Mediclaim policy. The policy bearing No.2004072811000001 was issued by OP which was valid from 16.8.2007 upto midnight of 15.08.2008 . According to the said policy of Insurance, all 1682 advocate members including Ajaib Singh Tung, Advocate and his spouse and two unmarried dependent children were insured for mediclaim to the tune of Rs.1.00 lacs each family member. It was alleged that Mrs. Ranjit Kaur wife of Sh. Ajaib Singh Tung, Advocate, covered under the Insurance Policy did not have any pre-existing disease including Cardiac Problem. However, as she complained of stomach pain , her husband took her to Liberty Hospital Mohali, where she was admitted on September 07,2007 and she was diagnosed to be having a stone in the gall bladder. According to the Ultra Sound Report, the Gall Bladder Phase was fully distended, the lumen was big 1.20 cm mobile calculus with biliary sludge and small calculi seen and common duct was dilated 12 mm in almost entire length and she was rushed to Fortis Hospital, Mohali on 08.09.2007 where she was found to be suffering from acute coronary syndrome, acute pulmonary edema and acute ATN and stent to LAD.

She remained on ventilator for 5/6 days and it was only on 14.09.2007 that coronary Angiogram was done which revealed double Vessel Disease and thus she underwent PTCA on the same day and had spent more than Rs.5,38,000/- for the treatment on his wife in the Fortis Hospital, Mohali. The complainant filed the claim of rupees one lac and submitted the necessary documents but OP instead of making the payment of rupees one lac to the insured member, repudiated the claim under Policy exclusion clause No.4.1. Complainant then approached OP so many times to settle his claim but of no avail. Alleging deficiency in service on the part of OP, complainant filed complaint before the District Consumer Forum seeking directions to OP to pay a sum of Rs.1.00 lac alongwith interest @12% besides compensation and litigation costs.

3. On the other hand, the stand of OP before the District Forum was that it was a case of pre-existing disease as the insured was admitted in the Fortis Hospital on 08.09.2007 and was having history of pain in Abdomen since the last six months and ultimately it was found to be a case of double vessel disease and she underwent PTCA on the same day. It was pleaded by OP that the double vessel disease does not develop within a span of one or two months but it takes a longer period to develop. Hence, it was clear case of a pre-existing disease and accordingly, the claim was repudiated under Clause 4.1. It was further pleaded that the claim was also not found payable under Clause 4.2 as per this clause the claim was not payable if such a disease was contracted by the insured person during the first 30 days from the commencement date of the policy. The policy started from 16.08.2007 and the date of admission in the hospital was 08.09.2007,therefore, it could safely be said that the insured was hospitalized within 30 days of the policy and as such the claim was rightly repudiated under Clause 4.2 and there was no deficiency in service and a prayer was made for dismissal of the complaint .

4. The learned District Consumer Forum after going through the file and hearing the learned counsel for parties, allowed the complaint as indicated in the opening part of this judgment. This is how feeling aggrieved against the said order, opposite party has come up in this appeal.

5. We have heard learned counsel for the parties and also gone through the file carefully. The only noticeable point raised on behalf of appellant/Opposite party (hereinafter to be referred as OP) is that in view of the terms and conditions laid under ‘exclusion clause 4.1’ respondent/complainant (hereinafter referred to as complainant) is not entitled to any compensation as she was suffering from pre-existing disease, so, claim was rightly repudiated by OP. This contention has been repelled by the learned counsel for complainant and at the same time he made reference to the certificate of treating doctor placed and proved on the file of District Forum at page-25.

6. We have given our thoughtful consideration to the aforesaid sole point raised on behalf of appellant and find the same to be devoid of any merit. Before we proceed further, let us reproduce the certificate issued by Dr. Rakesh K.Jaswal, who is highly qualified having the degrees of MD(Medicine) D.M.(Cardiology and also an additional Director Interventional cardiology working in the Fortis Hospital. He was the doctor who had treated Mrs. Ranjit Kaur wife of Sh.Ajaib Singh Tung,advocate, complainant in this case. The certificate dated 14.9.2007 reads as under ;

“This is to certify that Mrs. Ranjit Kaur vide UHID 138827 wife of S.Ajaib Singh Tung, advocate member Punjab and Haryana High Court Association, Chandigarh was admitted on 8th September,2007 in Fortis Hospital, Super Speciality in heart, Mohali. She had acute coronary syndrome. Acute Pulmonary edema and acute ATN. She had to be immediately put on ventilator and required an urgent life saving PTCA+stent to LAD. It is further clarified and certified that according to our medical record, patient had no pre-existing cardiac disease before this admission.”

7. A perusal of the above certificate based on medical record of the patient goes a longway to show that Mrs.Ranjit Kaur had no pre-existing cardiac disease before her admission in the said hospital on 8.9.2007. On the other hand, OP has failed to produce any cogent and convincing medical evidence to rebut the aforesaid report of the doctor of Fortis hospital where the patient was admitted and treated in respect of her disease. Thus, we have no hesitation to hold that infact the wife of complainant Sh.Ajaib Singh Tung who is member of the High court Bar Association was not having any pre-existing disease at the time of taking insurance policy and as such the exclusion clauses 4.1 & 4.2 of the conditions attached to the policy were not attracted to her case.

8. In the result, we find no force in the appeal and consequently the same is dismissed with cost which is quantified at Rs.5000/-

Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.

Complaint Case No.:597 of 2009

Date of Inst:28.04.2009

Date of Decision:13.11.2009
Nitin Grover s/o Sh.Sushil Grover r/o # 5138, Ground Floor, Modern Housing Complex, Manimajra, Chandigarh.

---Complainant

V E R S U S
1. Reliance General Insurance Co.Ltd., through its Manager, SCO NO.141-142, Sector 8-C, Madhya Marg, Chandigarh.
2. Medi-Assist India Pvt. Ltd., 3rd Floor, No.49, Shilpa Vidhya Sarakki Industrial Layout, 1st Main J.P. Nagar, 3rd Phase, Bangalore-560078.
3. Medi-Assist India Pvt. Ltd., 29, Ist Floor, Community Centre, Eastof Kailash, New Delhi.


---Opposite Parties

QUORUM SHRI LAKSHMAN SHARMA PRESIDENT

SMT.URVASHI AGNIHOTRI MEMBER

SHRI ASHOK RAJ BHANDARI MEMBER



PRESENT: Complainant in person.

Sh.Hitender Kansal, Adv. for OPs.

---

PER LAKSHMAN SHARMA, PRESIDENT

Sh.Nitin Grover has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OP be directed to :-

i) To reimburse medical expenses of Rs.39315/- along with interest @ 18% p.a. from the date of lodging of claim i.e. 22.09.08 till realization.

ii) To pay a sum of Rs.3750/- incurred on account of MRI.

iii) To pay a sum of Rs.20000/- as compensation for mental torture and physical harassment.

iv) To pay a sum of Rs.2000/- as litigation expenses.

2. In brief the case of the complainant is that The High Court Lawyers Charitable Trust (Regd.) purchased Group Medical Insurance policy No.2004072811000001 from opposite party No.1 which was valid from 16.08.07 to midnight of 15.08.08. Under the said policy, family of every insured person was insured for a sum of Rs.1 lac (each family with floater i.e. self plus spouse plus 2 unmarried dependent children). The complainant being member of High Court Bar Association was also insured under the above said policy. His Customer/MA-ID number is 40001499350.

According to the complainant, on 15.08.2008 he met with an accident at Mussoorie while going to Kemty Fall (Resort) and he suffered dislocation of left hip with fracture of femoral head and multiple contusions. Initially, he was admitted at Landour Community Hospital, Mussoorie and thereafter he was referred to Combined Medical Institute, Dehradun. The complainant was further referred to PGI, Chandigarh. He was got admitted in PGI on 17.08.2008 and was discharged on 26.08.2008. According to the complainant, he spent Rs.39,315/- on his treatment. On 22.09.2008, the complainant lodged the claim along with all the relevant documents with OPs No.2 and 3. It has further been stated that on the recommendation of PGI, he got MRI by spending Rs.3750/-. The complainant made number of telephone calls and written requests to OPs No.2 and 3 for releasing the claim but to no effect. According to the complainant, the non-settlement of the claim on the part of OPs amounts to deficiency in service. In these circumstances, the present complaint was filed seeking the reliefs mentioned above.

3. In the reply filed by the OPs, it has been pleaded that on scrutiny of the claim of the complainant, it transpired that the policy extended to the High Court Lawyers was a group medical policy and was valid from 16.08.2007 to the midnight of 15.08.2008. The complainant lodged the claim for injuries suffered by him and his mother in the accident which took place on 15.08.2008 at 01.30 p.m. and therefore, detailed enquiry was to be made into the exact date and cause of accident. It has further been pleaded that the bills and prescription slips which were submitted by the complainant were of 16.08.2008 i.e. one day after the lapse of the policy. The OPs appointed investigator with a direction to verify the documents from the concerned hospital. After processing the claim and verifying the documents, the Company issued banker cheque No.071125 in favour of the complainant dated 11.09.2009 amounting to Rs.4842/- along with covering letter of the like amount towards the injuries of his mother Smt.Kamlesh Gorver. Similarly a cheque No.071125 for a sum of Rs.38340/- was got prepared in the name of the complainant. In these circumstances, according to OP, there is no deficiency in service on its part and the complaint deserves dismissal.

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

5. Admittedly, the complainant being member of the High Court Bar Association was covered under the Group Medical Insurance Policy No.2004072811000001 purchased by High Court Lawyers Charitable Trust. The above said insurance policy was admittedly valid from 16.08.07 to midnight of 15.08.08. The Customer/MA-ID number of the complainant was 40001499350. The accident took place on 15.08.2008 at 1.30 p.m. The complainant submitted his claim on 22.09.2008. However, the claim was not paid to him till the date the complainant filed the present complaint i.e. 28.04.2009. OPs released the claim and prepared the cheque No.071126 dated 11.09.2009 in favour of the complainant after filing of the complaint. The above said cheque was delivered to the complainant on 22.09.2009 in the Forum itself. Thus, OPs took one year’s time in processing the claim and handing over the cheque to the complainant under the said insurance policy. In our view taking of such a long time in processing the claim of the complainant itself amounts to deficiency in service. The above said delay in releasing the claim has also caused mental agony and physical harassment to the complainant.

6. In view of above findings, the complaint is allowed with direction to OPs to pay to the complainant a sum of Rs.15000/- as compensation for mental agony and harassment etc. besides Rs.5000/- as costs of litigation.

7. This order be complied with by the OPs within one month from the date of receipt of its certified copy, failing which the OPs shall also be liable to pay the aforesaid amount of Rs.15,000/- to the complainant along with penal interest @ 18% p.a. from the date of order till its realization besides costs of litigation.

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

Complaint Case No.68/2009

Date of Institution 26-2-2009

Date of Decision 30-11-2009

Rajender Kumar son of Sh. Nand Lal resident of village and Post Office Khurahal, Tehsil Sundernagar, District Mandi, H.P.

…Complainant.
V/S

1. Reliance General Insurance through its Manager, SCO 145/146 Second Floor Sector 9-C Madhya Marg Chandigarh.

2. Reliance General Insurance Company through its Branch

Manager, 126/12 Ramnagar , near Namdhari Gurdwara, Mandi, H.P.

..Opposite parties

For the complainant Sh. Rahul Awasthi, Advocate

For the opposite party Sh. Tarun Pathak, Advocate
Complaint under Section 12 of the
Consumer Protection Act, 1986.

ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986

( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties . The case of the complainant is that he is registered owner of jeep Mohinder Pick-up bearing No.HP-31-B-0296 which was duly insured with the opposite parties vide policy with effect from 26-7-2007 to 25-7-2008 .That on 11-2-2008 the complainant was coming on the said vehicle from village Senahan to Village Khurahal after unloading cement bags and the vehicle was being driven by Sh.Sarwan Kumar son of Sh. Budhi Singh resident of village Khurahal who was having effective driving license to drive the vehicle and it met with an accident at 11 PM when reached near Panjawara and the jeep fell down into gorge . The complainant and the driver sustained injuries and the vehicle was badly damaged . The matter was reported to the opposite parties and jeep was brought from the spot of accident to the work shop by spending Rs.5000/-. The complainant averred that he had spent Rs.64,065/- on its repair and total amount spent was Rs.69,065/-inclusive of recovery van charges . The complainant further averred that he had submitted all the relevant documents to the opposite parties for settlement of the claim in the month of Feb/ March 2008 but the opposite parties did not entertain the claim of the complainant vide letter dated 10-3-2008 on the pretext that the driver of the said jeep was not holding effective and valid driving licence at the time of the accident . The complainant alleged that the rejection of the claim amounts to deficiency in service. The complainant had claimed Rs.70,000/- as repair charges of the vehicle , Rs.15000/- for non plying of the vehicle for two months ,Rs.10,000/- as compensation on account of defective service rendered by the opposite parties and Rs.3000/- as costs of complaint. With these averments , the complainant had sought a direction to the opposite parties to pay Rs.98,000/- in all .



2. The opposite parties have filed reply wherein they had taken preliminary objections that the present complaint is barred under section 26 of the Act, that the complaint is not maintainable , that the complainant is estopped to file the complaint by his own act and conduct , that the complaint is not maintainable since complicated question of law and facts are involved in it , that the complaint is hopelessly time barred . On merits , the opposite parties have admitted the insurance of the vehicle in question and receipt of premium . It has been contended that the parties are bound by the terms and conditions of the insurance policy and it is well settled law that nothing can be added or subtracted out of the terms and conditions . The opposite parties further contended that the driver Sh.Sarwan Kumar did not posses a valid and effective driving license to drive the vehicle which is a light transport vehicle . The opposite parties further submitted that the loss of the vehicle was assessed at Rs.12,832/- by the surveyor Sh.Rajinder Kumar Sharma vide his survey report Annexure O.P. 3. It has been denied that there was deficiency in service on their part and contended that the claim has been rightly repudiated vide letter Annexure O.P.4 The opposite parties had prayed for dismissal of the complaint .


3. The complainant had filed rejoinder reiterating the contents of the complaint and controverting those as made in the reply.

4. We have heard the ld. counsel for the parties and have carefully gone through the record. Be it stated that the insurance of the vehicle and its accident is not in dispute. As per the registration certificate produced in evidence by the complainant, the vehicle in question has been registered as Light Goods vehicle . According to the complainant, the vehicle was being driven by his driver Sh Sarwan Kumar and whose driving license has been annexed by the opposite party as Annexure O.P-1. The perusal of the driving license shows that it was issued on 1-7-2004 in favour of Sh.Sarwan Kumar by Registering and Licensing Authority, Sundernagar and valid up to 30-6-2024 and he was authorized to drive LMV

( NT) . The opposite party had repudiated the claim of the complainant on the ground that the aforesaid driving

license possessed by the driver was not a valid driving license since the vehicle in question is a goods vehicle and it

falls under the definition of transport vehicle as per Motor vehicles Act,1988.

5 Now the question which arises for consideration by this Forum is as to whether Sh. Sarwan Kumar was holding a valid and effective driving license at the time of the accident. As discussed hereinabove , the vehicle was being driven by Sarwan Kumar and he was only authorized to drive light motor vehicle ( non transport) at the time of the accident . At this stage, it would be relevant to refer to the definition of the transport vehicle as defined in section 2(47) of the Motor Vehicles Act,1988 which reads as under:-

(47) “ transport vehicle” means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.

6 As per the registration certificate, the vehicle in question is a “ light goods vehicle ” .Since it is a goods carriage therefore , according to section 2(47) of the Motor Vehicles Act,1988, it falls under the category of a

“ transport vehicle”. As per section 3 of the Motor Vehicles Act,1988 , a specific endorsement is necessary on the driving license for driving a transport vehicle. However, there is no such endorsement on the driving license of Sh. Sarwan Kumar that he was authorized to drive transport vehicle at the time of the accident . In a case titled as New India Assurance Co. vs Prabhu LaL AIR 2008 Supreme Court -614 = 2008(1)CPC-239 S.C , the driver was driving Tata -709 vehicle which was a transport vehicle while he was holding driving license for light motor vehicle ( LMV) without having an endorsement of transport vehicle under section 3 of the Motor vehicle Act. In these circumstances ,the Hon’ble Apex court held that the driver was not competent to drive “transport vehicle ” in the absence of valid driving license in view of sections 2,10,15 and 27 of the Motor Vehicles Act 1988 . Para No.29 and 33 of the aforesaid judgment reads as under:-

“ 29.We find considerable force in the submission of the learned counsel for the insurance company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under clause (47) of section 2 of the Act. Section 3 , therefore required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram, Narain was allowed to ply transport vehicle. On the contrary the case of the complainant was that it was Mohd Julfikar who was driving the vehicle. To us , therefore the District Forum was right in holding that Ram Narain could not have driven the vehicle in question.

33 In the present case all the facts were before the District Forum. It considered the assertion of the complainant and defence of the insurance company in the light of the relevant documentary evidence and held that it was established that the vehicle which met with an accident was a transport vehicle. Ram Narain was having a licence to drive Light Motor Vehicle only and there was no endorsement as required by Section 3 of the Act read with Rule 16 of the Rules and Form No.6. In view of necessary documents on record , the insurance company was right in submitting that Ashoke Gangadhar does not apply to the case on hand and the insurance company was not liable.”


7 In a recent judgment the Hon’ble Apex court in the case titled Oriental Insurance Co. Ltd vs Angad Kol and others 2009(2)418 Recent Apex Judgments , a goods carriage vehicle met with an accident causing death of a lady and its driver was possessing driving license to ply light motor vehicle only. The Hon’ble Apex court had held that the driver did not held a valid and effective driving license for driving a goods vehicle Relevant portion of para No.10 of the order is reproduced herein below:-


“The distinction between a “light motor vehicle” and

“transport vehicle” is therefore evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same a distinct licenses is required to be obtained . The distinction between a “transport vehicle “ and passenger vehicle can also be noticed from section 14 of the Act. Sub section (2) of Section 14 provides for duration of a period of three years in case of an effective license to drive a transport vehicle where as in case of any other license , it may remain effective for a period of 20 years .

In the present case also the vehicle is admittedly a light goods vehicle and it falls under the category of a “transport vehicle”. Sh. Sarwan Kumar who was on the wheel of the vehicle at the time of accident was only authorized to drive light motor vehicle( non transport)as per driving license adduced in evidence by the opposite parties as Annexure

O.P.-1 and in the absence of specific endorsement on the driving license to drive “ transport vehicle” it cannot be said that he was having a valid and effective driving license at the time of accident and we hold that the repudiation of the claim of the complainant by the opposite parties is genuine and it does not amount to deficiency in service .

8 In view of the legal position and in view of what has been discussed hereinabove, the complaint fails and the same is hereby dismissed with no order as to costs

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

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

Complaint no.871 of 11.12.2009.

Date of Order 09.11.2009.
Neeraj Taneja aged 33 years son of Sh. Tarlok Nath Taneja, resident of B.IX.542, Old Civil Hospital Road, Ludhiana.
…..Complainant.
Versus

1- Reliance General Insurance Company, 7th Floor, Surya Tower, 108, The Mal, Ludhiana, through its Manager.

2- Reliance General Insurance Company, Reliance Centre, 19, Walchand Hirachand Marg, Ballard Estate, Mumbai-400001 through its authorized representative.

….Opposite parties.

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

Quorum:-

Sh. T.N. Vaidya, President.

Sh. Rajesh Kumar, Member.


Present:- Sh. T.N. Taneja Adv. for complainant.

Sh. Rajeev Abhi Adv. for opposite parties.

O R D E R

T.N.VAIDYA, PRESIDENT:

1- Insurance claim qua vehicle no.PB-10BS-8728 of the complainant, insured with opposite party, vide policy no.2001382311101857 valid from 1.3.2008 to 5.3.2009, was partly settled by opposite party, by paying Rs.3230/- against the claim of Rs.32,336/-. So, such act of opposite party is claimed amounting to deficiency in service. Hence, this complaint u/s 12 of the Consumer Protection Act, 1986.

2- It is claimed by the complainant that on the intervening night of 4/5th April, 2008, when was driving his car, due to heavy rain, there was lot of water on the road near Domoria Bridge. While crossing the pool of water, a big stone hit under the car, which got stopped. Car couldn’t be started and then from customer care number of Garyson Motors, a person was called, who checked the vehicle and towed the same to the workshop. Next day, claim was lodged with opposite party, who engaged the surveyor. The car was got repaired from M/s Vishkarma Motors, by spending Rs.32,336/-. The claim was lodged, but opposite party cleared it for Rs.3230/- only. By not paying entire damage to the complainant, opposite party claimed deficient in services. Hence, also claimed alongwith the amount spent on repair, compensation of Rs.1 lac.

2- Opposite party in reply, took objections qua maintainability of the complaint and that there is no deficiency in service on their part. Admitted insuring vehicle of the complainant and lodging claim qua damage to the vehicle under the policy. But pleaded that the claim was processed and consequently, Sh. Yogesh Kochhar surveyor and loss assessor was appointed, who assessed loss of Rs.3230/-. After receipt of the report of surveyor, applying mind, the claim was settled for Rs.3230/- in full and final settlement and the said amount has been paid to the complainant, vide cheque dated 20.5.2008, which he accepted in full and final settlement of the claim. So, there is no deficiency in service on their part.

3- To prove their respective claims, parties led evidence by way of affidavits and documents and stood heard through their respective counsels.

4- In order to reflect that spent bigger amount on repair, complainant has placed on the record, retail invoices Ex.CW1/2 and Ex.CW1/3 for Rs.16,686/- and Rs.13,650/- respectively. Opposite party settled the claim for Rs.3230/- only, as per intimation through SMS Ex.CW1/4. Complainant not satisfied with the settlement of claim, served legal notice Ex.CW1/8 dated 31.10.2008 on opposite party, demanding full payment of Rs.32,336/-. Then also issued letters Ex.CW1/10 and Ex.CW1/10A in this behalf on opposite party.

5- Whereas, on receipt of claim from the complainant, opposite party engaged services of Sh. Yogesh Kochhar,Surveyor and Loss Assessor, who vide report Ex.R1, assessed total loss to the vehicle to the tune of Rs.3230/-. To prove his report, Sh. Yogesh Kochhar has filed his affidavit Ex.RW2/A.

6- In this scenario, agued on behalf of opposite party that this amount stands accepted by the complainant as full and final payment of the claim, so stands prohibited from raising such claim, by way of present complaint. His remedy consequently would be to approach the Insurance Regulatory and Development Authority, or to go for arbitration. But filing of complaint is no remedy for him.

7- Hon’ble National Commission in Vishnu Tex Vs New India Assurance Company Ltd. II(2008)CPJ-319(NC), held that where full insurance claim is not paid by the insurance company to the insured, who received it without protest and only course open for him, either to approach Insurance Regulatory and Development Authority or to go for arbitration.

8- In the instant case also, there is no proof that the amount so remitted by the opposite party to the complainant, was ever received by him under protest. Though after receipt of the amount, as conveyed to the complainant, vide SMS dated 16th May, 2008, he subsequently under notices Ex.CW1/8 dated 31.10.2008, Ex.CW1/10 dated 5.8.2008 and Ex.CW1/10A dated 29.8.2008, claimed the balance amount. But these letters are much later to receipt of cheque of Re.3230/- by the complainant from the opposite party. Subsequent protest by him, not giving full amount of the claim, won’t show that he had received the payment from opposite party, under protest.

9- It is settled that report of surveyor being an important document, can not be ignored without sufficient reasons. Reliance placed on Prem Chand Sadana Vs New India Assurance Co. Ltd. I(2008)CPJ-229(Uttrakhand State Commission).

10- Though report of the surveyor is not final and last word, to settle the claim, but it is a necessary report. Such was laid down by the Hon’ble Supreme Court in New India Assurance Co. Ltd. Pardeep Kumar 2009 CTJ-599(SC).

11- In the instant case, we have to take report of the surveyor to be final, as he has prepared this report, keeping in mind terms and conditions of the policy. The amount so found due by him, was accepted by the complainant without protest.

12- In view of aforesaid discussions, we are of the view that complainant now is not entitled for further amount from the opposite party, after having accepted Rs.3230/- as full and final settlement from the opposite party. Consequently, finding no merits in the complaint, the same stands dismissed, leaving the parties to bear their own costs. Copy of the order be made available to the parties free of charge. File be completed and consigned to record room after registration.