DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

Complaint No. 477/10.8.2007.

Date of order: 5.3.2009.



Baldev Singh son of Sh. Kehar Singh, resident of V.P.O. Sahauli, Tehsil & Distt. Ludhiana.

(Complainant)

Vs.



1. Reliance General Insurance Company Limited, Regional Office SCO No.212-214, Sector 34-A, Chandigarh, through its Regional Manager.



2. The Reliance General Insurance Company Limited, Office at 7th Floor, Surya Tower 108, The Mall, Ludhiana.

(Opposite parties)



Complaint under section 12 of the Consumer Protection Act, 1986.

…..



Quorum:

Sh. T.N. Vaidya, President.

Sh. Rajesh Kumar, Member.



Present:

Sh. Baljit Sharma Advocate for the complainant.

Sh. Rajiv Abhi Advocate for opposite party.



O R D E R

T.N. VAIDYA, PRESIDENT:

1. Claim qua theft of insured motor cycle bearing temporary no. PB-10-BJ-(Temp) 08-5332, vide cover note no.1121633 dated 30.11.2006, was repudiated by opposite party vide letter dated 8.5.2007. Consequently, this complaint under section 12 of the Consumer Protection Act, 1986, assailing repudiation to be wrong, null, void and illegal.

2. Case of the complainant briefly stated is that had purchased the aforesaid motor cycle on 30.11.2006 for Rs. 30,222/- and got the same insured on the same day with the opposite party. On the day of purchase i.e. 30.11.2006, brother of the complainant Sh. Sukhdev Singh went to the fields on the insured motor cycle and parked it adjoining to the fields. After switching off the electric motor installed in the fields, he came back to the spot where the motor cycle was parked and found the same missing. Motor cycle was stolen by somebody which could not be traced despite efforts. FIR No. 94 dated 1.12.2006 under section 379 IPC in P.S. Sudhar was registered. Opposite party was intimated qua theft and lodged the claim, who got the surveyor appointed. Surveyor assessed the loss, submitted report to the Insurance Company but opposite party wrongly and illegally vide letter dated 8.5.2007 repudiated the claim on the ground that the vehicle was unattended at the time of loss, so, it falls within the scope of condition no.4 of the policy. This is claimed to be deficiency in service and sought insurance amount of the motor cycle along with Rs.20,000/- as compensation for deficiency and Rs.5500/- as litigation costs.

3. Opposite party in their reply admitted obtaining the insurance policy from them qua motor cycle by the complainant, lodging theft claim and repudiating the same. They have justified the repudiation on the ground that complainant had not taken reasonable steps to safe guard the vehicle from the loss as he left the ignition key in the motor cycle while parking the same. Further averred that the motor cycle was insured on 30.11.2006 at 1.00 p.m. and theft had occurred on the same day at 12.00 Noon. So, motor cycle was insured after theft of the motor cycle and as such not covered under the insurance policy, which commenced after 1.00 p.m. on 30.11.2006.The claim has rightly and legally been repudiated.

4. Both the parties adduced their evidence by way of affidavits and documents.

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

6. Regarding admitted aspects of the case, we deem not necessary to burden the record.

7. It is suffice to say that the complainant had taken the insurance cover note on 30.11.2006 and on the same day lodged the claim qua theft of the motor cycle. The claim was repudiated relying on condition no.4 of the policy. Ex.R.4 is copy of the insurance policy and its condition no.4 provides as under:

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



8. Now the question is whether the complainant or his brother taken reasonable steps to safeguard the vehicle from loss or damage. Our decision on this aspect has been eased by own admission of the complainant contained in FIR Ex.C5 (R1). FIR was lodged by Sh. Sukhdev Singh brother of the complainant, who had taken motor cycle to the fields. As per report lodged by Sh. Sukhdev Singh, he parked the motor cycle on side of the fields and forgot to take out ignition key of the motor cycle; himself went to the fields and after switching off the motor came back, found to his surprise, motor cycle having been stolen, which could not be discovered despite efforts.

9. It is as such clear from this FIR that ignition key of the motor cycle was left in the vehicle by brother of the complainant. So, it means he himself was negligent by keeping the ignition key in the vehicle and did not take reasonable steps to protect the motor cycle from being stolen, nor he took reasonable steps to safe guard it.

10. Hon’ble Chhattisgarh State Consumer Disputes Redressal Commission, Raipur in case III (2006) CPJ 180 titled as Bajaj Allianz General Insurance Co. ltd. Vs. Manoj Agrawal, in such scenario in similar circumstances, where owner of the vehicle had parked it on the road without locking the same in night, which was stolen, held that complainant was negligent, so, not entitled to receive compensation and justified repudiation of the insurance claim.

11. Similarly, herein motor cycle was parked outside the fields leaving ignition key which was negligence on the part of brother of the complainant, facilitated the theft and was in breach of terms and conditions of the insurance policy, hence opposite party was justified in repudiating the claim.

12. Though the claim has not been repudiated under letter Ex.C.6 (Ex.R.5) on ground that at the time of theft, motor cycle was not insured with the opposite party. But it is a factum established on the record, as per FIR motor cycle was stolen at 12.00 noon on 30.11.2006, whereas it was insured by the complainant with the opposite party on 30.11.2006 at 1.00 p.m. as mentioned in the cover note Ex.R.3. So, it appears that insurance policy was purchased after loss or theft of the motor cycle. Theft took place at 12.00 noon and subsequently after one hour, insurance cover note at 1.00 p.m. was obtained. Where the vehicle was not insured at the time of accident, claim was held rightly rejected. Reference made to United India Insurance Company Limited & Anr. Vs. Raj Rani & Ors. Reported as II (2007) CPJ 141(Hon’ble Union Territory Consumer Disputes Redressal Commission, Chandigarh; Bhupindra Singh Vs. New India Assurance Co. Ltd. reported as IV (2005) CPJ 95 (Hon’ble Chhattisgarh State Consumer Disputes Redressal Commission, Raipur and Anthony Rebello Vs. New India Assurance Co. Ltd. II (1996) CPJ 92 (Hon’ble National Consumer Disputes Redressal Commission, New Delhi.

13. In view of the aforesaid discussion, it is apparent that the complainant was negligent in not taking care of the vehicle, which he left unattended along with ignition key and infringed condition of the policy. Further more, he got the vehicle insured after one hour of the theft. So, in these circumstances, we feel that the complainant has no case against the opposite party. Therefore, finding no merit, we dismiss the complaint. Parties to bear their own costs. Copy of the order be supplied to the parties free of costs. File be completed and consigned to record.





Announced

Dated 5.3.2009 T.N. Vaidya, President

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:

VIZIANAGARAM

(UNDER THE CONSUMER PROTECTION ACT, 1986)

PRESENT:- SRI N.JAGANNADHA RAO, B.Sc., B.L., PRESIDENT.

SRI P.APPALANAIDU, M.A., B.L., B.Ed., MEMBER.
SMT P.RUKMINI, B.A., B.L., MEMBER

WEDNESDAY, THE 04TH DAY OF MARCH, 2009

C.C.09/08

BETWEEN:

M.Suryanarayanaraju,
S/o Krishnamurthyraju,
60 years, Business,
R/o Perumali Village,
Terlam Mandal,
Vizianagaram. …….Complainant.

And

1. Reliance General Insurance company Limited,
Rep., by it’s Manager, Regd., Office 3rd Floor,
Maker Chambers, IV, 222, Nariman Point,
Mumbai.
2. Reliance General Insurance Company Limited,
Rep., by it’s Branch Manager, Near R.T.C. Complex,
Vizianagaram.
3. The Manager,
Road Safety Club (P) Ltd.,
Admi Office Z-A, IInd Floor, Prakasam Road,
T.Nagar, Chennai.
4. The Branch Manager,
National Insurance Co., Ltd., Annanagar Branch,
Chennai
Bearing policy No.500500/42/03/8200124 valid from 08-01-2005 to 07-01-2006.
(Amended as per order in I.A. /09 dt.18-09-2008. ..…Opposite parties.

This complaint is coming on for final hearing before us on 18-02-2009 in the presence of Sri J.Bheemasena Rao and Sri Y.Mohan Das, Advocates for complainant and of Sri B.Satyanarayana Raju, Advocate for opposite party No.1 and Opposite party No.2 called absent and remained exparte and Sri P.Seshadri, Advocate for opposite party No.3 and Sri K.Venu Gopal, Advocate for opposite party No.4 and having stood over for consideration, the Forum made the following:

O R D E R

1. The complainant, a resident of Perumali Village, Terlam Mandal, obtained a Group Personal Accident Master Policy through the 3rd opposite party with opposite parties 1 and 2 bearing Policy No.12-29-14-00129-05 dated 23-12-2005 and valid up to 07-01-2007 and his wife is a nominee. On 24-2-2005, the complainant along with Yelala Srinu, was proceeding on Hero Honda Motor Cycle bearing No.A.P.35 D 9172 from Perumali to Rajam and though the complainant drove the same in normal speed, a tractor bearing No.A.P.35 T 1292 came in opposite direction at high speed and dashed the motor bike and the complainant received fractured injuries to his right knee and patella, and fracture on his right shoulder besides fracture to his lower jaw and both cheeks and mandible on both sides. All injuries are grievous in nature. He became permanent disabled man. Due to lake of teeth, he could not eat any hard food and lost his biting capacity and lost his vision a bit. He could not attend his normal duties. As per the terms and conditions of the policy, the opposite parties are liable to pay compensation of Rs.2,00,000/- for permanent disability and Rs.25,000/- towards hospitalization expenses. The complainant was removed to P.V.R.hospital, Vizianagaram and from there, referred to Simhadri Hospital, Visakhapatnam, where he was inpatient for 180 days. A case in Crime No.29/05 under Sections 338, 337 of I.P.C. was registered and charge sheet against the driver of the tractor was filed in C.C.75/05. The policy was inforce from 08-01-2005 to 07-01-2006. The opposite parties did not pay the sum assured inspite of a legal notice nor give any reply. This failure to make payment amounted to deficiency in service. Hence the complaint claimed compensation of Rs.2,00,000/- towards permanent disability Rs.25,000/- towards hospitalization expenses and another sum of Rs.15,000/- towards compensation for mental agony.


2. While the complaint is pending enquiry and in view of counter filed by the 1st opposite party the complainant impleaded the 4th opposite party, National Insurance Company as the insurer.

3. The 1st opposite party, denying the claim of the complainant, pleaded that it is no way concerned with the claim of the complainant. It also took up a plea that as per the reply of the 3rd opposite party it is the National Insurance company which was the insurer and which was processing the claim and on that ground sought for dismissal of the complaint.

4. The 3rd opposite party filed a counter admitting issue of policy, but pleaded that it was issued by National Insurance company and the same was in force from 08-01-2005 to 07-01-2006 and that insurance company is the necessary party. It denied in liability it is the only a felicitator in obtaining the policy from insurance company and there cannot be any deficiency in service. Hence the complaint has to be dismissed.

5. The newly added National Insurance Company, while denying the complaint allegations pleaded that the failure to give any report to police as to the accident is against natural conduct of any ordinary person. More over, the complainant claimed to have obtained treatment at Vizianagaram for two days, but did not inform the police and only six days after the accident, the report was sent to police would show, there is something fishy in the alleged accident. It also pleaded that the dates mentioned in the first information report and the complaint are quite contrary. It is also pleaded that the complainant is not a consumer and this Forum has no jurisdiction as the dispute if any is subject jurisdiction of Chennai Court only and more over it should be decided by arbitration. It is also pleaded that the complaint itself is barred by time and there is no deficiency in service on the part of this opposite party. Hence the complaint is dismissed.

6. At the time of enquiry both parties filed affidavits in support of their contentions and marked Ex.A.1 to A.10 and Ex.B.1 to B.4 and both the counsels were heard who reiterated their respective contentions.

7. It is the contention of the counsel for the complainant that the issue of policy not being in dispute, the evidence filed by him would show that there was an accident wherein the complainant sustained grievous injuries, the opposite parties are bound to pay the policy amount to the complainant and its failure to do so is nothing but deficiency in service. More over, he contended, the claim is in time, as only from the date of repudiation of the claim, the limitation starts run to. He relied upon a decision in Ganeshwar Mohanty Vs. Divisional Engineer, The New India Assurance co., Ltd., a& Anr 1995(1) CPR page 65, wherein it was held that the complaint within three years of repudiation of claim is maintainable. He pleaded that Ex.A.10 disability certificate would show permanent disability sustained by the complainant.

8. It is the contention of the counsel for opposite parties 1 and 2 that it did not issue any policy to the complainant covering the accident period. More over, it is contended by the counsel that there is no office of opposite party No.1 at Vizianagaram and so notice was rightly returned with such endorsement. He pointed out that this Forum has no territorial jurisdiction. He ultimately contended that at any rate, the liability if any, would be on opposite party No.4 only. The counsel for opposite party No.3 Road Safety Club naturally took up a plea that it is only a felicitator in obtaining the insurance policy and forward the claim to the concerned insurance company and it does not have any liability.

9. The counsel for opposite party No.4 is opposing the claim on two grounds. Firstly, that the claim is barred by time which was made three years after incident. He pointed out that inspite of specific plea by the 3rd opposites party that it is the 4th opposite party only which was the insurer, the complainant did not take proper step to impleade this opposite party and even by the date of its impleading the claim is barred by time. He also urged that it was never issued any notice by the complainant and so question of repudiation did not arise. The 2nd ground urged by the opposite party No.4 is with the nature of injury sustained by the complainant, do not come under the terms and conditions of the policy enumerated therein and hence it cannot be mulcted any liability. It is also its contention that this Forum has no territorial jurisdiction as the terms of the policy would in fact show that dispute, if any, would be subject to the jurisdiction of Chennai Court.

10. In view of the above contentions arises by both sides the following points that would arise for determination in this complaint is:
1. Whether this Forum has got territorial jurisdiction to settle the claim?
2. Whether the claim is barred by limitation?
3. Whether there is any deficiency in service on the part of the opposite parties
and the complainant is entitled for the claim made?

11. POINT No.1:- This claim based on Personal Accident Master Policy the complainant is no doubt resident of Vizianagaram District the claim is against three opposite parties originally. The 3rd opposite party is Road Safety Club, with head quarters at Chennai. The opposite party No.1 is Reliance General Insurance Company with heard quarters at Bombay. Though the 2nd opposite party is shown as Reliance General Insurance with Branch at Vizianagaram, it turned out that there is no such branch at any time, and in fact notice sent by this Forum. was returned unserved with endorsement that there is no such office at all. The 4th opposite party National Insurance Company, which actually issued the policy is at Chennai. Apart from this, the accident occurred near Rajam which is undisputedly in neighbouring Srikakulam District. Thus except the residence of the complainant, none of the opposite parties are shown to be within the jurisdiction of this Forum. Evidently, non existing the 2nd opposite party was shown in the complaint with head quarters at Vizianagaram, only to claim jurisdiction under this Forum. Thus none of the opposite parties nor any part of cause of action has arisen within the jurisdiction of this Forum and we hold that this Forum has no territorial jurisdiction to entertain the complainant. Accordingly this point is answered against the complainant.

12. POINT No.2:- The next and most important plea raised by the 4th opposite party, which is the insurer is that the claim is barred by time. Though there is some discrepancy in the pleading as to the date when the policy was issued and accident occurred as can be seen from ex.B.4 insurance certificate filed by the 4th opposite party, it was issued on 24-12-2004 covering a period of insurance from 08-01-2005 to 07-01-2006. The accident occurred on 24-02-2005. Thus, by the time of accident, the policy is in force. However, inspite of specific plea by opposite party No.3 the Road Safety Club that it is the National Insurance Company which issued policy to the complainant by giving reply to the legal notice Ex.A.9 on 31-08-2007 and reiterating the same plea even in the counter filed on 06-06-2008, the complainant kept quite and only on 24-09-2008, took steps for impleading opposite party No.4 and the petition was allowed on 18-09-2008. As a matter of fact, the complaint itself was filed on 13-02-2008 i.e., beyond two years from the date of accident on 24-02-2005 which gave cause of action for this claim. Even the legal notice issued on 28-08-2007 was also beyond two years period of limitation. There is no application even, by the complainant, pleading for condonation of delay by the Forum, as provided under Section 24 (A) (2) of the Act prescribing two years limitation period for any claim with power to the Forum for condoning the delay recording its reasons. Thus the claim against opposite party No.4, insurance company, which has to answer the claim is clearly barred by time.

13. The learned counsel for complainant tried to contend that the claim can be made within three years from the time of repudiation of the claim by the insurance company and even cited an authority in Ganeshwar Mohanty Vs. Divisional Engineer, The New India Assurance Co.Ltd. & anr., 1995 (1) CPR page 65 (Cuttack). But apart from the fact that this decision was rendered on 03-04-1993 by the Orissa State Commission prior to insertion of section 24 (A) which came into force on 18-06-1993, prescribing limitation period there was never any claim made with proper insurer i.e., opposite party No.4 and question of repudiation by it did not arise at all. As already noted, inspite of the fact that opposite party No.3 the Road Safety Club in its reply notice, Ex.A.9, dated 31-08-2007 itself has specifically informed the complainant that it is opposite party No.4 which is the insurer to whom the claim forms were transmitted, the complaint was filed without impleading the 4th opposite party and application was filed to impleade it only on 29-08-2008, during enquiry, at the stage when parties filed documents in support of their respective contentions. Thus in any view of the matter the decision relied upon by the counsel for the complainant will not be of any help to substantiate his contention. Though the counsel also cited another authority in Maya Devi Vs. Life Insurance Corpn., of India 2008 (3) A.P.L.J. 1 (CC) (NC), in our view the question involved in that decision is not at all relevant to the dispute on hand.

14. In the light of the above discussion we hold that the claim is barred by time.

15. POINT No.3:- The issue of policy in favour fo the complainant by opposite party No.4 insurance company not being in dispute,
the next question that would arise would be whether the complainant sustained injuries in accident and the denial to settle his claim as per terms of the policy, by the opposite parties amounts to deficiency in service has to be considered. The opposite parties 1 and 2 are not insurers and opposite party No.3 is only felicitator in obtaining the insurance policy by the complainant and they cannot be mulcted with any liability in satisfying the claim. It is only opposite party No.4 being insurer would be liable to settle the claim.

16. It is contended that there was no accident at all and the extraordinary delay in giving report would show that there is something fishy and the complainant came up with a false claim. No doubt Ex.A.3, first information report, was registered six days after the incident that too while he was undergoing treatment in Simhadri Hospital, Visakhapatnam. Though the complainant’s claim that he was treated at Vizianagaram in the first instance, there is no material to support it. The first information report was registered on the statement recorded by Rajam policy at Simhadri Hospital, Visakhapatnam. But the fact remains that the case was registered against the tractor driver and the Motor Vehicle Inspector inspected the tractor, though he did not find any damage to it. In our view by this reason only the plea of the complainant that he met with an accident while going on the motor bike cannot be and need not be disbelieved. Evidently, due to ignorance and in the anxiety to render medical assistance to the complainant, the report to police was not given immediately. Hence we are unable to accept the plea of the insurance company that there is no accident at all.

17. With regard to the injuries sustained by the complainant and the disability caused to him Ex.A.5 the medical record issued by Simhadri Hospital would show that he sustained grievous injuriries on right knee, right patella, fracture of mandible on both sides, besides a lacerated wound of right shoulder. Surprisingly it does not show that there was any loss of teeth as claimed by the complainant. Similarly the plea of the complainant that he underwent treatment for six months in that hospital was not supported by any evidence. So the limited evidence placed by the complainant is that he suffered fractured injury on his right nee, right patella and mandible fracture on both sides of cheeks in that accident and that injury was grievous in nature.

18. Apart from the above evidence, the complainant filed disability certificate issued by Medical Board and to prove it affidavit of Dr.K.V.Murali Mohan who was one of the signatories of Ex.A.10 disability certificate was filed. The affidavit and the certificate would show old fractured injury on his right patilla and mandible double fractures on both sides of cheeks and the disability was assessed at 25%. This medical evidence could not be seriously challenged by the opposite party.

19. However, the insurance company took up a stand at that the injury sustained by the complainant was not covered by ex.B.1 policy wherein different types of injuries and extent of its disabilities were enumerated. Evidently it is a permanent partial disability. Though (on the reverse of) in the policy Ex.B.1 the injuries were specifically enumerated and the injuries sustained by the complainant was not covered, (Clause 12 at page 13 specifically mentions that any other permanent partial disability, percentage of such disability as assessed by the Doctor is also covered). By virtue of this Clause, the contention of counsel for insurance company that the policy does not cover this injury cannot be accepted. As per the Doctor’s assessment it is 25% disability that was caused. This scope of coverage as per the policy is for permanent partial disablement, sum insured was Rs.2,00,000/- and it being 25% partial disablement, the complainant would be entitle for Rs.50,000/- policy amount.

20. Though the complainant claimed Rs.25,000/- as hospitalization charges. Evidently, there is absolutely no evidence that to be placed by him to show that he was hospitalized and treated as inpatient anywhere. That being the case, on that count the complainant is not entitled for any amount. With regard to the claim for compensation of mental agony at Rs.15,000/- it being a claim for payment of policy amount covered in the accidental insurance question of granting compensation for mental agony separately does not arise. More over, there was never any claim against opposite party No.4 at any time and consequently there is no petition by it which can be said to be unjust. On that ground also the claim for compensation for mental agony cannot be sustained. Thus in all the complainant would be entitled for Rs.50,000/- being 25% of policy amount that too from opposite party No.4 only which shall be payable within 30 days and any failure of its with interest at 9% per annum from the date of this Order till the date of payment. However, in view of our finding on points one and two that this Forum has no territorial jurisdiction and that claim is barred by time, no order for payment by opposite party No.4 can be made by this Forum. Accordingly this point is answered.

21. In the result, the complaint is dismissed on the ground of limitation. Each party to bear their respective costs. Advocate fee is fixed at Rs.1,000/- (Rupees one thousand only).

C.C.No.111/2008

Between
Kancherla Chengalraya Naidu,
S/o. Krishnama Naidu,
Hindu, aged 53 years,
Residing at Mittameeda Kandriga,
(M.M. Kandriga) Panakam Post,
Tirupati Rural Mandal, Chittoor District … Complainant

And
1. M/s. Reliance General Insurance Co. Ltd.,
Rep. by its Branch Manager,
19-6-27, 2nd Floor, D.R. Mahal Road,
Tirupati.

2. M/s. Reliance General Insurance Co. Ltd.,
Rep. by its General Manager,
570, Naigaum Cross Road,
Next to Royal Industrial Estate,
Wadala (W), Mumbai – 400 031. … Opposite parties

This complaint coming on before us for final hearing on 12.03.2009 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri. G. Ramaiah Pillai, counsel for the complainant and the Sri S.M. Jhan, counsel for the opposite party No.1 and opposite party No.2 having been called absent and having stood over till this day for consideration, the Forum made the following:-

ORDER

DELIVERED BY Smt. T. SUJATHA DEVI, MEMBER

ON BEHALF OF THE BENCH

This complaint is filed under Sections 12 and 14 of Consumer Protection Act, 1986 to direct the opposite parties to reimburse the repair charges incurred for the amount of Rs.2,40,569/-, to pay compensation of Rs.2,00,000/- for causing mental agony and also to pay Rs.2,000/- towards legal expenses.
2. The averments of the complaint in brief are as follows : The complainant states that he is an unemployed person and in order to sustain his livelihood, he purchased JCB 3DX Diesel by availing financial loan from Sri Infra Structure Finance Limited, Mahalakshmi, No.290, Peters Road, Gopalapuram, Chennai, Tamilnadu on hire purchase hypothecation agreement for Rs.20,82,470/-. The vehicle was duly registered with registering authority by RTA Tirupati on 14.12.2007 bearing No. AP 03-AC-7764. The vehicle was also duly insured with the opposite parties and a policy No.1811782343001757 was issued in favour of the complainant for the insured declared value (IDV) for Rs.20,82,470/- on payment of premium of Rs.25,706/- covering the risk for the period from 24.04.2008 to 23.04.2009 for third party liabilities. The driver by name K. Suresh Babu was appointed to operate the vehicle and he was having valid driving license to drive the vehicle and not disqualified for holding or obtaining such license. His license No. is DLRAP204115772007 for the transport HTV-LMV with validity upto 29.07.2010. The vehicle is being managed by S. Madhu, son-in-law of the complainant.
On 30.04.2008 at 2.30 a.m., the vehicle on the way to Kadapa involved in road accident in Krishnapuram village of Kadapa District and thereby sustained damages to the vehicle due to hit against a tree by the road side in order to avoid collusion with one RTC bus which comes in opposite direction without any caution resulting lost control over his vehicle by the driver. Immediately he reported the accident to the nearest police station, Chinthakomma Dinne (CK Dinne) of Kadapa District who enquired into the incident and made entry in the general diary. As the accident was due to negligence of the driver, he compounded the offence under Sec.183 and 184 of M.V. Act and paid Rs.300/- on 01.05.2008 under challan No.852402 of Book No.17049. A police certificate was also issued to that effect by the Inspector of Police, Kadapa Rural. Hence there was no FIR as no cognizable offence took place for which investigation is not required. The fact of incident was also informed to the opposite party No.1 and also to the General Manager, M/s. Reliance General Insurance, Hyderabad and also the Claims manager of the said Reliance General Insurance Company of Hyderabad for the purpose of assessing the loss to the vehicle on the same date. As a matter of fact one surveyor by name T. Gangadhara Prasad visited the accident place and performed spot survey. He furnished a copy of the report to the complainant and permitted him to give the vehicle for its repairs by the authorized dealer. The complainant carried out the repairs to the damaged vehicle under the said accident through the competent dealers (Gold Fields) and Help Line Sales and Services of Kadapa. As per invoices the total claim comes to Rs.2,40,569/- towards its repairs and replacement of parts. He submitted his claim along with supported vouchers by enclosing motor claim form which they undertake to fill the columns and keeping reliance with the opposite parties, the complainant signed in the blank form accordingly. As there was no response for his repeated oral demands to the opposite parties concerned and out of frustration he got issued a legal notice to the opposite party No.1 and others on 01.08.2008 for settlement within 7 days. Even the legal notice served no purpose and it remained a futile exercise and no result yielded. Hence, the complaint for deficiency in service on the part of the opposite parties for not discharging their liability under the terms of the policy which amount to unfair trade practice for which the complainant claims damages etc. Hence, the complaint.
3. The opposite party No.1 filed counter denying most of the allegations made in the complaint and stated as follows:- That the complainant never approached the opposite party and made his claim as per the terms and conditions of the policy entered with this opposite party. The foremost important clause of the policy is that once the insured’s vehicle is got theft or got damage, it is the duty cast upon the complainant to intimate the said fact to the insurer of his vehicle within 48 hours from the time of the said incident, but the complainant has not taken any steps to intimate or inform the same to this opposite party. The complainant has no piece of evidence to show that he has made his efforts in intimating the same to this opposite party about the incident of accident of the vehicle, except causing of notice on 01.08.2008. In turn, he thrown the blame against the opposite party simply saying that the opposite party has not settled his claim. This opposite party only came to know about the incident on 01.08.2008 when the complainant issued a legal notice against this opposite party and it clearly shows that the complainant alone made deficiency in intimating the same to this opposite party. That the complainant further alleged that he issued a legal notice on 01.08.2008 calling upon the opposite party to settle the claim apart from damages in deficiency in service and for causing physical and mental suffering and also alleged that this opposite party gave false and evasive replies are not at all true and correct. It is only the complainant had never discharged his duties in right way in right time and hence there in no any deficiency in service rendered to the complainant by this opposite party. It is therefore, prayed the Hon’ble Forum may be pleased to dismiss the complaint with exemplary costs.
The opposite party No.1 also filed additional counter sating as follows : This opposite party categorically states that there was no existence of policy as on the actual date of alleged incident submitted by the applicant. The applicant has not lodged any complaint before the police of C.K. Dinne, Kadapa District and no first information was registered regarding the alleged incident. Hence, this opposite party denies the entire allegations of the complaint. This opposite party categorically states that this opposite party has deputed one Southern Claims Consultants, Hyderabad to investigate regarding the alleged incident and after thorough investigation they pointed out that the insured K. Chengalraya Naidu renewed the policy only after the alleged incident, i.e., on 24.04.2008 and it also revealed in the investigation that the vehicle of the insured was kept for repair before Gold Fields, authorized service for JCB products, Kadapa wherein the insured has paid advance amount for spare parts for the said vehicle to a sum of Rs.49,000/- on 19.04.2008. As per the contention of the complainant, the alleged incident was occurred on 30.04.2008 at about 2.30 a.m. This opposite party categorically states that there is no any eye witness to the occurrence of the alleged incident and there is no any documentary proof to show that the accident was occurred on 30.04.2008 and that the alleged copy of police certificate dt.01.05.2008 issued by Inspector of Police, Kadapa Rural about the receipt of complaint is not true and correct and it is got up document and more so the entire allegations and the alleged claim is clearly shows as suspicious one and the complainant filed the above complaint only to have wrongful gain. Hence no claim can be liable to pay to the applicant by his opposite party in view of the non-existence of policy as on the date of accident. That it is categorically states that it has recorded the statements of insured K. Chengalraya Naidu and verification of cash book of Gold Field Showroom situated at Chinna Chowk, Kadapa for confirmation of insured giving advance amount for the spare parts and the bills containing in the said firm under Sl.No.17 to 23 clearly shows that the incident was occurred before existence of the policy and on enquiry made by the investigating authority on the alleged spot of occurrence of the alleged incident, nobody informed or nobody knows about the alleged incident. The documents filed by the applicant are all got up for the purpose of the above claim only. The opposite party further stated that the applicant also addressed a letter dated 02.05.2008 to the Gold Fields, Kadapa requesting them to adjust the amount of Rs.49,000/- which was paid on 19.04.2008 for the purpose of requirement of 0.3 Cu Mt bucket and oils, under receipt No.20 and it clearly shows that the alleged incident was not at all happened on the alleged date of incident and all the alleged documents are invented and got up by playing fraud and to extract money from the opposite parties. It is therefore, prayed that this Hon’ble Forum may be pleased to dismiss this complaint with exemplary costs.
4. On behalf of the complainant Exs.A1 to A9 are marked. The complainant also submitted written arguments.
Ex.A1 is the Xerox copy of Certificate of Registration bearing No. AP 03 AC
7764 Fork Lift LMV in favour of the complainant , dt. 14.12.2007
Ex.A2 is the original vehicle package policy of Reliance General Insurance Co.
Ltd., No.1811782343001757, dt.26.04.2008
Ex.A3 is the Xerox copy of driving licence DLRAP 204115772007 of K. Suresh
Babu, Dt. 06.08.2007
Ex.A4 is the original police certificate issued by the Inspector of Police, Kadapa
Rural about the receipt of complaint regarding accident of the vehicle on
30.04.2008, dt. 01.05.2008
Ex.A5 is the original challan and receipt for compounding of offence under Sec.
183 M.V. Act for Rs.300/-, dt.01.05.2008
Ex.A6 is the Xerox copy of Motor Spot Survey Report, dt. 03.05.2008
Ex.A7 is the Xerox copy of motor claim form of Reliance General Insurance Co.
Ex.A8 is the office copy of legal notice to the opposite party No.1, dt.01.08.2008
Ex.A9 is the postal acknowledgement from opposite party No.1.
5. On behalf of the opposite party No.1, Ex.B1 only is marked.
Ex.B1 is the original payment receipt bearing No.20, dt.19.04.2008 for
Rs.49,000/- issued by Gold Fields, Kadapa. The opposite party No.1 also filed
written arguments.
6. The points for consideration are :
1.Whether there is deficiency of service on the part of the opposite parties and if so what amount the complainant is entitled to?
2.Whether the complainant is entitled to Rs.2,00,000/- for the mental agony suffered by him?
3.Whether the complainant is entitled to Rs.2,000/- towards the costs of the complaint?
4.To what relief?
Point No.1:- The case of the complainant is that he is the registered owner of the vehicle JCB 3Dx Diesel bearing No. AP03V-AC-7764. It was covered under the Insurance policy of third party liability for the insured declared value of Rs.20,82,470/- on payment of premium of Rs.25,706/- commencing the risk from 24.04.2008 to 23.04.2009. While so on 30.04.2008 at 2.30 a.m., the vehicle on the way to Kadapa involved in an accident at Krishnapuram village and sustained damages due to hit against a tree by the road side in order to avoid collusion with one RTC bus which was coming in opposite direction. The driver immediately reported the accident to the nearest police station, Chinthakomma Dinne (CK Dinne) of Kadapa District who enquired into the incident and made entry in the general diary. The driver was not disqualified for holding driving licence at the time of accident. Para 6 of the complaint stated as follows: “The complainant carried out the repairs to the damaged vehicle under the said accident through the competent dealers (Gold Fields) and Help Line Sales and Services of Kadapa. As per invoices the total claim comes to Rs.2,40,569/- towards its repairs and replacement of parts. He submitted his claim along with supported vouchers by enclosing motor claim form which they undertake to fill the columns and keeping reliance with the opposite parties. The complainant signed in the blank form accordingly”. According to the complainant the incident happened on 30.04.2008. The opposite party No.1 produced Ex.B1 from Gold Fields, Kadapa that the complainant paid Rs.49,000/- as advance for parts. Ex.B1 is dated 19.04.2008. Under these circumstances, the date of incident is doubtful. The complainant in his arguments stated that the fact of incident was also informed to the opposite party No.1 and also to the General Manager, M/s. Reliance General Insurance, Hyderabad and also the Claims manager of the Reliance General Insurance Company of Hyderabad for the purpose of assessing the loss to the vehicle. It is seen from Ex.A2, “any accident to the vehicle involving injuries to / death of persons or damage to property must be immediately reported to insurance authorities using the following telephone numbers – 1800 224080 (toll free) or 022 32648888”. The complainant has not produced any documentary evidence to the satisfaction of the District Forum that he has intimated the incident to the insurer. The complainant has produced Ex.A4, i.e., Police Certificate issued by the Inspector of Police, Kadapa Rural, dt. 01.05.2008. It is seen from Ex.A4 that the driver of the vehicle reported the incident to the police and he got himself compounded from the offence by paying Rs.300/- as compounding fee to the Police. The police have not registered first information report basing on the report given by the driver of the vehicle. The complainant should have called for the G.D. from the police concerned to show that the incident happened on 30.04.2008 to the satisfaction of the District Forum. This he failed to do so. The complainant got report of T. Gangadhara Prasad, who is the alleged to have visited the place of accident and performed spot survey. He is not the person who was instructed by the opposite party to visit the spot on the accident and submit his report. Therefore, the report of the surveyor T. Gangadhara Prasad cannot be accepted as he is the person appointed by the complainant and not by the insurer. Under these circumstances, the District Forum is of the opinion that there is no deficiency of service on the part of the opposite parties and the complainant is not entitled to any amount. This point is answered accordingly in favour of the opposite parties and against the complainant.
Point Nos.2& 3:- In view of our finding on Point No.1, the complainant is not entitled to any amount. These two points are answered accordingly.
Point No.4.:- In the result, the complaint of the complainant is dismissed without costs.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MYSORE

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

consumer case(CC) No. CC/09/26

Rajanna. L
...........Appellant(s)
Vs.

Reliance General Insurance Co., Ltd., & one another

Reliance General Insurance Co., Ltd.,
...........Respondent(s)

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

ORDER

Complainant Rajanna.L., S/o Lingegowda, R/o 5th Cross, Near Govt. Primary School, Halahally, Mandya City. (By Sri.M.N.Bettappa., Advocate)

Vs.

Opposite Parties 1. The Manager, Reliance General Insurance Co.Ltd., 1st Floor, Mysore Trade Centre, Opp. KSRTC Bus Stand, Mysore.

2. The Manager, Reliance General Insurance Co.Ltd., No.28, East Wing, 5th Floor, Centenary Building, M.G.Road, Bangalore-506001. (O.P.1 – EXPARTE AND By Smt. K.L.Sugandi, Advocate for O.P.2)

Nature of complaint : Deficiency in service Date of filing of complaint : 23.01.2009 Date of appearance of O.P. : 18.02.2009 Date of order : 19.03.2009 Duration of Proceeding : 1 MONTH PRESIDENT MEMBER Sri.D.Krishnappa, President


1. The grievance of the complainant in brief is that he is the owner of Tata Indica Car No.KA-09-N-3045 and R.C. of that vehicle stands in his name. That the vehicle has a valid insurance from 27.11.2007 to 26.11.2008. On 12.11.2008 his driver one Shashikumar was driving the vehicle at about 4.30 pm met with an accident and a criminal case has been registered in connection with this accident. That he purchased the car from one Basavaraju and got the R.C. changed to his name on 08.07.2008. After the accident he informed the same to the opposite parties whose surveyor visited the spot and then he got the vehicle repaired by spending Rs.73,010/- and submitted claim to opposite parties who have repudiated the claim on the ground that the vehicle insurance policy has not yet been got transferred from the previous owner to the name of the complainant and therefore they are unable to settle the claim. Therefore, the complainant has prayed for a direction to the opposite parties to pay Rs.73,010/- as repair charges, Rs.25,000/- towards inconvenience and hardship and Rs.1,000/- towards cost.


2. The first opposite party who is duly served has remained absent is placed exparte. The second opposite party appeared through hisadvocate and filed version contending that insurance policy of the vehicle as on the date of the accident was still in the name of the earlier owner Basavaraju and as there is no contract of insurance between them and the complainant, they are not liable to reimburse the repair charges. After getting the R.C. transferred on 08.07.2008, the complainant ought to have got the insurance policy transferred in his name within 14 days as per the conditions of the policy, but the complainant since has not got the same transferred is not entitled for reimbursement and therefore have prayed for dismissal of the complaint.

3. In the course of enquiry into the complaint, the complainant and the Assistant Manager of the second opposite party have filed their version reproducing what they have stated in their respective complaint and version. The complainant along with this complaint has produced the repudation letter issued by the second opposite party on 18.11.2008, copy of the FIR, and the insurance policy with the bill for having got the damaged vehicle repaired with copies of R.C. The second opposite party has produced copy of the insurance policy. Heard the counsel for the complainant and second opposite party and perused the records.

4. On the above contentions, following points for determination arise.
1. Whether the complainant proves that the opposite parties have caused deficiency in their service in repudiating the claim on the ground that insurance policy of the vehicle has not been transferred from the previous owner to the name of the complainant?
2. To what relief the complainant is entitled to?

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

REASONS

6. Point no. 1:- As could be viewed from the contentions of both the parties, there is no controvercy with regard to the fact that the vehicle bearing No.kA-09-N-3045, which was belonging to one Basavaraju was purchased by this complainant and the R.C. of the said vehicle was transferred in the name of the complainant on 08.07.2008. But, the complainant had not got transferred the policy of the vehicle till the date of accident and therefore as on the date of the accident, the insurance policy of the vehicle was still standing in the name of the earlier owner namely Basavaraju.

7. The claim of the complainant that the vehicle in question met with an accident on 12.11.2008 and that the complainant had informed about this accident to the opposite parties is not denied by the second opposite party. Further the claim of the complainant that he got the damaged vehicle repaired by spending Rs.73,010/- has also not been disputed by the opposite parties. The only contention raised by the second opposite party as evident from their version and affidavit is, that there was no contract of insurance between them and the complainant, as such the complainant in whose favour the policy had not been transferred as on the date of the accident, they have stated that they are not liable to reimburse that amount and thus have repudiated the claim of the complainant. Therefore, dispute between the parties boils out to the limited contention that the opposite parties have raised for reimbursing the repair expenditure of the complainant.

8. The learned counsel appearing for the complainant by relying upon a decision of the Hon’ble High Court of Karntaka reported in 2005 (2) KCCR page 936 between Sri Veeresh Vs. Sri Siraj Ahamed and others and also a decision of the Hon’ble National Commission reported in 2007 (IV) CPJ page 289 between Sri Narayan Singh Vs. New India Assurance Company Ltd. submitted if the insurance policy had not been transferred from the previous owner to the name of the transferee, insurance company is liable to reimburse the repair expenditure and therefore submitted for a direction to the opposite parties as prayed for. Whereas the learned counsel representing the second opposite party besides her written arguments to supplement her arguments relied upon a decision reported in III (2007) CPJ page 411 NC between United India Insurance Company Ltd. and another Vs. Harindar Kaur and one more decisions one of Hon’ble Naitonal Commission reported in I (2007) CPJ page 23 and another of the Hon’ble Supreme Court reported in 2006 (V) Civil Law Journal page 548 and submitted that, if the transferee had not got the insurance policy of the purchased vehicle transferred to his name, the complainant will not be entitled for reimbursement of the repair expenditure and submitted for disposal of the complaint. The other two decisions relied upon by the learned counsel for the second opposite party have no bearing on the facts of this case. Though, in the first decision of the Hon’ble National Commission relied upon by her it is held, if the transferee had not taken the steps for transferring policy after transfer of car, transferee is not entitle to get benefit of insurance policy, but this decision has been rendered by the Hon’ble National Commission basing on the Rules of the insurance company which were applicable to that case. But in this case, the learned counsel representing the second opposite party has not brought to our notice any rule which excludes the complainant from claiming the insurance amount when he has not got the insurance transferred to his name.
The Hon’ble National Commission in another decision reported in IV (2007) CPJ 289 between Sri Narayan Singh Vs. New India Assurance Company Ltd. and further in a latest decision reported in I (2009) CPJ page 183 between Oriental Insurance Company Ltd. Vs. Om Prakash Gupta and another has been pleased to hold where the vehicle has already been transferred in the name of the complainant in RTO records and even if the insurance policy has not been got transferred, the complainant would be entitled to the benefits accruing from policy and has held that the insurer is liable to pay the insurance amount.

Therefore, in view of the latest decisions, which are rendered based on GR 10 issued by Tariff Advisory Committee on sale of vehicle and benefit under the policy on date of transfer and they have further stated that benefits will ensure to the benefit of the owner of the vehicle, with this we find no merits in the contention of the second opposite party and their counsel and as such the opposite parties are not right in repudiating the claim of the complainant, and the repudiation amounts to deficiency in their service and therefore answer point no.1 accordingly and pass the following order:-


ORDER

1. The Complaint is allowed.

2. The first and second opposite parties are jointly and severally held liable to reimburse the complainant of his repair expenses and are directed to pay Rs.73,010/- within 60 days from the date of this order, failing which they shall pay interest at 9% p.a. from the date of this order till the date of payment.

3. The first and second opposite parties shall jointly and severally pay cost of Rs.1,000/- to the complainant. 4. Give a copy of this order to each party according to Rules.

Complaint Case No.203/2008
Date of Institution 8-8-2008
Date of Decision 30-4-2009


1.Promila Devi wd/o late Sh. Yashwant Singh aged 36 years .
2.Sunena Kumari minor D/o late Sh. Yashwant Singh aged 13 years
3.Asish Thakur minor son of late Sh. Yashwant Singh aged 8 years
Both minors through their mother and natural guardian Smt. Promila Devi complainant No.1
4.Smt. Ram Pyari wd/o late Sh.Rajinder Singh aged 52 years
All residents of village Kanalag Ward No.5 Nagar Panchayat Sarkaghat , Tehsil Sarkaghat, District Mandi, H.P.
…Complainants
V/S


1.M/S Reliance General Insurance Regional Office SCO 212-214 Sector 34-A Chandigarh 160022 through its Regional Manager.

2.State of Himachal Pradesh through its Director , Department of Ayurvedic to the Govt of H.P.Shimla

…..Opposite parties



For the complainant Sh. P.R.Sharma ,Advocate
For the opposite party No.1 Sh. G.L. Upmanu , Advocate
For the opposite party No.2 Sh.Vipul Sharma ,DDA





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 complainant has averred that the Govt. of H.P. through its Finance ( IF) Department purchased the Indexed Group Personal Accident Insurance Scheme for its regular and other various categories of employees from the opposite party No.1 through their newly opened Branch Office at Rain Basera Building , Khalini Shimla commencing from 10-10-2007 for a period of one year covering risk of various kinds on deduction of Rs.50/- per month from salary of the employees for a sum assured to the tune of Rs.2,00,000/- as per Annexure C-1. That Yashwant Singh , husband of the complainant No.1 and father of the complainants No.2 and 3 and son of the complainant No.4 was serving as Daily wages peon and while posted as such at Sub Divisional Ayurvedic Hospital Sarkakghat, District Mandi also became member
of the above insurance scheme for which premium was deducted regularly. That unfortunately during the currency of the policy ,Sh. Yashwant Singh sustained brain hemorrhage due to head injury on 9-2-2008 at the house of his father in law Sh. Kirpa Ram at village Graudu, Post Office Sajai Piplu Tehsil Sarkaght , District Mandi at about 8 PM due to slipping of foot while coming down from stairs of upper storey of house after taking meal from kitchen and coming to ground floor by
falling in the court yard of the house and was immediately removed to the nearby Ayurvedic Hospital at Sajai Piplu by father in law of deceased alongwith Pradhan Gram Panchayat , Sajai Piplu and other neighbours where he was declared dead as per Annexure C-2. Rapat No.4 with regard to the accidental death was also lodged at Police Station Sarkaghat in the morning of 10-2-2008 which is Annexure C-3.That the complainants were not at all aware about the insurance policy of the deceased which fact was later on told by Medical Officer Ayurvedic Hospital Sarkaghat where the deceased was posted as daily wages as Peon at the time of the accidental death and advised to lodge the claim with the opposite party No.1. The complainants submitted the claim to the opposite party No.1 alongwith all original documents . The opposite party No.1 vide letter dated 23-4-2008 has repudiated the claim as No claim on the ground that no post mortem was carried out which is pre-requisite for Death claim as per letter Annexure C -6. The complainant has alleged that the repudiation of the claim on the alleged ground is wrong , illegal , unwarranted , arbitrary and without application of mind and not at all bonafide and also not in good faith . The complainant had alleged that the policy was purchased by the Govt. and the same has not been supplied to life assured nor to the complainants and it is for this reason that post mortem was not got conducted and, therefore, the demand of post mortem by the opposite party No.1 is illegal and amounts to deficiency in service. It has further been alleged that no terms and conditions and procedure to file death claim mentioned in Annexure A page 3 supplied with Annexure C-1 and if supplied to the opposite party No.2 then it is the duty of the opposite party to No.2 to apprise their subordinate officials under whom employee works to manage for post mortem of the employees who die accidental death for providing the policy benefit to legal heirs. With these averments , the complainants had sought a direction to the opposite parties to pay the insurance benefits of Rs.2,00,000 /- to them with interest at the rate of 12% PA with effect from 9-2-2008 and Rs.50,000/- as compensation alongwith costs of the complaint.
2 The opposite party No.1 has failed to file reply and its right to file the reply was closed by the order of the forum dated 20-1-2009



3. The opposite party No.2 resisted the complaint and raised preliminary objections that the complainant is not a consumer as defined under the Act, that there is no deficiency in service on the part of the opposite party No.2 and that this Forum has no jurisdiction to hear the present complaint. On merits, the opposite party No.2 has admitted that deceased Yashwant Singh was insured by the Department under Group Personal Accident Policy through opposite party No.1 and as per Notification dated 10-10-2007, premium in the sum of Rs.50/- was deducted from the wages of Sh. Yashwant Singh for the month of October 2007. The opposite party No.2 has denied that the deceased employee has sustained accidental injuries and therefore he was declared dead. It has been averred that it was incumbent upon the family of the deceased to ensure to get the postmortem of deceased done from competent authority so the cause of death could be ascertained . The medical certificate issued by the Ayurvedic Medical Officer does not find any legal sanctity in the absence of proper conducting of autopsy by the competent Medical Authority. It had further been averred that the legal representative of the deceased Yashwant Singh had not timely intimated the police on the very day of death otherwise the Police could have got the postmortem done . The opposite party No.2 had further averred that the case alongwith entire record was sent vide letter No.104 dated 27-2-2008 timely to opposite party No.1 so far as the claim of the policy is concerned and it is to be settled by the opposite party No.1. It has further been contended that the policy was purchased by the opposite party No.2 from the opposite party No.1 and it is the opposite party No.1 who has to settle the claim as per the terms and conditions of the policy . The opposite party No.2 has denied any deficiency in service on its part and prayed for dismissal of the complaint qua it .


4. The complainant had filed rejoinder reiterating the averments made in the complaint and controverting the averments made in the reply by the opposite party No.2.


5 We have heard the ld. counsel for the parties and have also gone through the entire record. The case of the complainant is that deceased Yashwant Singh was serving as daily wages Peon and posted as such at Sub Divisional Ayurvedic Hospital Sarkaghat . That Govt. of H.P. through its Finance ( IF) Department purchased the Indexed Group Personal Accident Insurance Scheme for its regular and other various categories of employees from the opposite party No.1 and deceased Yashwant Singh was also a member of the above insurance scheme for which the premium was regularly deducted and during the currency of the above policy, he died on account of injuries sustained by him on 9-2-2008 at the house of his father- in -law Sh. Kirpa Ram at village Graudu. The opposite party No.1 did not contest the complaint . The case of the opposite party No.2 is that it was incumbent upon the family of the deceased Sh. Yashwant Singh to get the post mortem conducted on the dead body of deceased from competent authority so as to ascertain the cause of death and the claim has to be settled by the opposite party No.1 and not by the opposite party No.2 as per the terms and conditions of the insurance policy.


6 It has not been denied by the opposite party No.2 that the deceased Sh. Yashwant Singh was covered under the Indexed Group Personal Accident Insurance Scheme as per notification of Finance Department letter No. FIN. IF (F) 9-2/2006 -1 dated 10-10-2007 and the premium of Rs.50/-was also deducted from the salary of the life assured in the month of October , 2007. It has also not been denied by the opposite party No.2 that Sh. Yashwant Singh died on 9-2-2008. However, the case of the opposite party No.2 is that the complainant has failed to prove that the deceased died on account of injuries sustained by him and it was accidental death. As per the opposite party No.2, the family of the deceased should have conducted the post mortem on the dead body of the life assured from competent authority. In order to prove that the deceased Yashwant Singh died on account of injuries sustained by him, the complainants have placed on record photocopies of prescription slip issued by doctor Annexure C-2, Rapat Rojnamcha No.4 dated 10-2-2008 entered in police station ,Sarkaghat Annexure C-3 , death certificate issued by Govt Ayurvedic Dispensary Annexure C-4, certificate issued by Pradhan Gram Panchayat, Sujai Piplu Annexure C-5. The opposite party No.1 had filed Affidavit of Dr. B.K. Sood dated 2-4-2009 wherein he deposed that the documents were submitted to the opposite party No.1 and had also placed on record the repudiation letter of opposite party No.1dated 24-3-2008 wherein the claim was treated as “No claim “ on the ground that no post mortem was conducted which was pre requisite for a death claim.


7 Now the question which arises for determination by this Forum is as to whether the opposite party No.1 was justified in repudiating the claim on the aforesaid ground The complainants have pleaded that the insurance policy was purchased by the opposite party No.2 from the opposite party No.1 and the copy of the policy containing terms and conditions of the same was never supplied either to the life assured ( deceased) or to the complainants , otherwise the complainant No.1 would have conducted the post mortem on the dead body of the deceased and non conducting of the post mortem occurred due to lack of knowledge of the alleged terms and conditions of the policy which were never supplied to the complainants. In our opinion , the repudiation of the claim on the ground that the post mortem was not got conducted by the complainants on the dead body of the life assured is not justifiable because there is sufficient evidence available on record that deceased life assured had died due to accident on account of fall and
received brain haemorrhage because of head injury. The perusal of the prescription slip Annexure C-2 shows that on 9-2-2008 deceased Yashwant Singh was examined by the Doctor and he was brought with a history of fall from upper storey of the house as a result of which he sustained brain hemorrhage . In rapat No.4 dated 10-2-2008 Annexure C-3 it has been mentioned that the deceased died due to head injury .In the death certificate Annexure C-4 issued by Govt Ayurvedic Dispensary it has been mentioned that Sh. Yashwant Singh died due to brain haemorrhage and those were found head injuries because the attendant stated that he slipped from the upper storey and fall on the courtyard .Annexure C-5 is the certificate issued by Pradhan Gram Panchayat Sajai Piplu in which he has also mentioned that the life assured died due to brain haemorrhage . Not only this , the complainant had also adduced in evidence affidavits of Sarita Devi, Pradhan Gram Panchayat Sujai Piplu (Annexure C-7), Sh. A.S. Pathania ,G.A.M.S. Ayurvedic Medical Officer Sajai Piplu Annexure C-8 and Sh. Kirpa Ram father—in- law of the life assured as Annexure C-9. All of them deposed in their respective affidavits that the life assured Sh. Yahswant Singh died due to head injury sustained by him on account of a fall from stairs .


8 In a similar situation in a case titled ICICI Lombard General Insurance Co. Ltd vs Raju Kachhawa IV (2008) CPJ-312 the deceased slipped in the house and received head injury including brainstem haemorrhage . Neither first information report was recorded nor post mortem was conducted and the insurance company repudiated the claim . The Hon’ble State Commission of Rajasthan held that there was no necessity of lodging First Information report and post mortem report and the repudiation of the claim amounts to deficiency in service on the part of the insurance company. Relevant portion of the aforesaid order reads as under:-
18.Apart from this , since head injury was the direct result of the slipping of deceased in the bath room, therefore ,that would be treated as mishap or untoward event not expected or designed. Furthermore the slipping of deceased in the bath room was certainly unintended occurrence which had an adverse physical result and thus death of the deceased was accidental one .


…………………………………………………….


20.Thus for the reasons stated above it is held that the death of the deceased was accidental one as the event which happened and occurred in the present case was merely by chance and was covered by the word “ accident ” and the learned District Forum has rightly observed so.
Non production of documents i.e. FIR and Post mortem report.


21 No doubt in the case , FIR and post mortem report were not produced but non furnishing of FIR and post mortem report would not mean that no accident had taken place. Further more since the deceased had died because of receiving head injury due to slipping in the bath room, therefore there was no necessity of lodging any FIR and getting the post mortem examination done as there was no crime or offence committed by any one under the provisions of Indian Penal Code or any other enactment.
22.Therefore if the document ( FIR and post mortem report ) as demanded by the appellants through letter Annexure R-2 dated 3-3-2006 were not furnished and produced by the complainant- respondent , it cannot be said that the claim of the complainant – respondent was false one.”

9 In the present case also, deceased Yashwant Singh sustained injuries on account of fall . No post mortem had been conducted on the body of life assured but that does not mean that no accident had taken place because as per our aforesaid discussion there is sufficient evidence available on record that deceased had died because of brain haemorrhage due to head injury. Therefore in view of aforesaid case law, there was no necessity for the complainant to get the post mortem examination done because no crime or offence was committed by any one under the provisions of Indian Penal code or any other enactment .Moreover, due to death, the family members of the deceased life assured had come under shock and how they would have reacted upon his death is beyond imagination . Therefore, the repudiation of the claim simply on the ground of non conducting of the post mortem examination of deceased is not justifiable. In nut shell, we have no hesitation in concluding that the complainants had proved and established that the life assured had died due to accidental death and there was no necessity of getting the post mortem examination done by the complainants. The repudiation of the claim of the complainant on this sole ground certainly amounts to deficiency in service.

10 In the light of above discussion, the complaint is allowed and the opposite party No. 1is directed to pay Rs.2,00,000/- to the complainants . with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party is also directed to pay to the complainant Rs.2000 /- on account of compensation for harassment suffered by them and also to pay a sum of Rs.1,500/- as costs of litigation. The amount shall be paid to the complainants in the ratio of 2:1:1:2. The share of minor complainants No.2 and 3 be deposited in fixed deposit till they attain the age of majority and the Fixed deposit receipt be retained in the office.

Bihari Lal son of Sh. Jagat Ram resident of village Khair , Post Office Mahog, Tehsil Karsog,, District Mandi, H.P.



…Complainant


V/S
Reliance General Insurance company branch office Mandi, District Mandi, through its branch Manager .

…..Opposite party





For the complainant Sh. Noor Ahmad, Advocate
Opposite party Exparte.

Complaint under Section 12 of the
Consumer Protection Act, 1986.

ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he purchased a light motor vehicle i.e. Force Motors Ltd Kargo and its weight is 1865 kilograms by raising loan from Mahindra and Mahindra Finance Service Ltd , Ner Chowk to earn his livelihood by means of self employment . The complainant got the vehicle insured with the opposite party and comprehensive insurance policy was issued by the opposite party with effect from 23-3-2007 to 22-3-2008. That the vehicle in question met with an accident on 1-11-2007 near Shogi in District Shimla, H.P and the said vehicle was badly damaged The accident was duly intimated to the opposite party. The complainant was advised by the opposite party to firstly repair the vehicle from authorized centre and the claim will be settled thereafter. The complainant got the vehicle repaired from Sai Force Vaknaghat Post Office Kerighat ,District Solan and had spent Rs.1,15,000/- on repair . Apart from this Rs.3000/- was paid as recovery van charges . The complainant submitted the claim to the opposite party for settlement of the claim but after the lapse of nine months the claim has not been settled which amounts to deficiency in service as well as unfair trade practice It has been alleged that the opposite parties were served with legal notice on 10-9-2008, but the same was neither responded nor claim was settled. On these allegations, the complainant had sought a direction to the opposite party to pay Rs.76,970/- as repair cost of the vehicle alongwith interest at the rate of 12% PA , A sum of Rs.20,000/- has also been claimed on account of compensation apart from costs of litigation.


2 The opposite party was initially represented by Sh.G.L. Upmanu Advocate but failed to file reply and its right to file the same was closed by the order of the Forum on 20-1-2009. On 23-3-2009, the opposite party was proceeded against exparte.


3. We have heard the ld. counsel for the complainant and have also gone through the entire record. The perusal of the complaint and accompanying documents, it appears that the grievance of the complainant is that the vehicle No. HP-30A-0250 owned by him was got insured with the opposite party from 23-3-2007 to 22-3-2008 and during the currency of the said policy the vehicle met with an accident and suffered huge damages. The complainant had intimated the accident of the said vehicle to the opposite party who deputed its surveyor for survey and assessment of the loss . As per the complainant, the vehicle was repaired by him at workshop at the instance of the Surveyor and spent Rs.1,15,000/- . The claim has been submitted to the opposite party but the same has not been settled till date. On the other hand the opposite party had not contested the complaint and was proceeded against exparte. We have gone through the documentary evidence adduced in evidence by the complainant which is annexure C- A to C-G and Annexure C-1 and C-2 The complainant has not filed any bills of repair or estimated costs of repair with this forum and rather adduced in evidence the cash memos worth Rs.1,15,000/- which according to him were paid on account of repair of the vehicle in question . As per the complainant , he spent Rs.1,15,000/- but in the prayer clause he had prayed Rs76,970/- as repair charges .The cash memos are in the name of the complainant but bears no vehicle number. Be it stated that as per the own case of the complainant, the claim has not been decided by the opposite party despite submission of the claim Also in view of the fact that the complainant has not filed complete documents in support of the averments made in the complaint , we feel that the complaint is pre-mature at this stage and before proceeding further in the case it would be in the interest of justice if we direct the opposite party to settle the claim because all the documents were lying with the opposite party as submitted by the complainant.


4 In view of what has been stated above , the complaint of the complaint is partly allowed and the opposite party is directed to settle the claim of the complainant within a period of two months from the date of receipt of the order of this Forum in accordance with law . However, the complainant is at liberty to file fresh complaint on the same cause of action in case his claim is repudiated by the opposite party or not settled within the stipulated period.

Complaint No: 132 of 2008

Date of Institution: 24.09.2008

Date of Service:15.10.2008

Date of Decision:02.04.2009

Kaka Singh (aged 40 years) son of Sh.Malkiat Singh, resident of village: Alamwala, Tehsil: Bagha Purana, Distt.Moga.

Complainant.

Versus

1. Reliance General Insurance, Anil Dhirubhai Ambani Group, Regional Office, SCO 212-214, Sector 34-A, Chandigarh through its Regional Manager.
2. Reliance General Insurance Co.Ltd. 991, Ist Floor, Ward # 5, Near Bus Stand, Opposite SBOP, G.T.Road, Moga through its Branch Manager.

Opposite Parties

Complaint Under Section 12 of the

Consumer Protection Act, 1986.

Present: Sh.P.S.Sidhu, Adv.counsel for the complainant.
Sh.Jaswinder Singh, Adv.counsel for the OPs.

Quorum: Sh.J.S.Chawla, President.
Sh.J.S.Mallah, Member.

(J.S.Chawla, President)
Sh.Kaka Singh complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (herein-after referred to as ‘Act’) against Reliance General Insurance, Anil Dhirubhai Ambani Group, Regional Office, SCO 212-214, Sector 34-A, Chandigarh through its Regional Manager and another (herein-after referred to as ‘Insurance Company’)-Opposite parties directing them to pay Rs.70109/- as repair charges of vehicle and also to pay Rs.5000/- as compensation for causing mental tension and harassment besides Rs.5000/- as costs of litigation.


2. Briefly stated, Kaka Singh complainant got insured his car make Lancer bearing registration no.PB-10AP-1313, with OPs-Insurance Company vide policy no. 2011382311100063 for the period w.e.f. 02.04.2008 to 01.04.2009. That earlier, the said vehicle was insured with United India Insurance Company for the period w.e.f. 02.04.2007 to 01.04.2008. That on 11.5.2008 said vehicle met with an accident and was damaged badly. That the complainant immediately informed the agent of OPs-Insurance Company about the damage and at his instance, got repaired his vehicle from Nagi Motors, G.T.Road, Moga. That the surveyor of the OPs-Insurance Company inspected the damaged vehicle and gave his report accordingly. That the complainant paid Rs.70109/- to Nagi Motors, G.T.Road, Moga for the repair of the said car. Thereafter, the complainant lodged the claim with the OPs-Insurance Company and completed all the formalities, but they failed to pay the aforesaid amount to the complainant. That the OPs-Insurance Company has repudiated the claim of the complainant vide their letter dated 01.09.2008 on the flimsy ground. Hence the present complaint.


3. Notice of the complaint was given to the OP-Insurance Company who appeared through Sh.Jaswinder Singh Advocate and filed written reply contesting the same. They took up preliminary objections that there is neither any deficiency in service nor unfair trade practice on the part of the OPs-Insurance Company and that the present complaint is not maintainable in the present form. In fact, the complainant purchased policy from the OPs-Insurance Company valid for the period w.e.f. 2.4.2008 to 1.4.2009 on the terms and conditions mentioned therein; that on receiving the information, the OPs-Insurance Company appointed M/s.Royal Associates, an independent investigator to investigate the matter who submitted their report stating that they visited the village of the complainant where his father and sarpanch of the village stated that the vehicle in question had met with an accident at Railway Bridge when it was coming to village on 15.3.2008; that the claim does not fall within the ambit of the policy because the policy in question was purchased by the complainant w.e.f. 2.4.2008 to 1.4.2009 and consequently the claim of the complainant was rejected. On merits, the OPs-Insurance Company took up the same and similar pleas as taken up by them in preliminary objections. All other allegations made in the complaint were specifically denied being incorrect. Hence, it was prayed that the complaint filed by the complainant has no merit and the same deserves dismissal.


4. In order to prove his case, the complainant tendered in evidence his affidavits Ex.A1 and Ex.A6, copy of policy Ex.A2, copy of bill Ex.A3, copy of letter Ex.A4, copy of policy Ex.A5, affidavit Ex.A7of Gurcharan Singh, affidavit Ex.A8 of Rachhpal Singh Ex.Sarpanch, and closed his evidence.


5. To rebut the evidence of the complainant, the OPs-Insurance Company tendered affidavit Ex.R1 of Sh.Pradeep Sharma, Sr.Executive-Legal Claims, affidavit Ex.R2 of Kashmir Singh proprietor of M/s.Royal Associates, copy of proposal Ex.R3, copy of policy Ex.R4, copies of statements Ex.R5 and Ex.R6, copy of investigation report Ex.R7, copy of letter Ex.R8 and closed their evidence.

6. We have heard the arguments of Sh.P.S.Sidhu ld. counsel for the complainant and Sh.Jaswinder Singh ld. counsel for the OPs-Insurance Company and have very carefully perused the evidence on the file.


7. Sh.P.S.Sidhu ld.counsel for the complainant has mainly argued that the OPs-Insurance Company has wrongly and illegally repudiated the claim of the complainant amounting to Rs.70109/- spent on the repair of the car. This contention of the ld.counsel for the complainant has full force. Admittedly, the car in question was insured with the OPs-Insurance Company for the period w.e.f. 02.04.2008 to 01.04.2009 and the alleged accident took place on 11.5.2008. The only defence taken up by the OPs-Insurance Company was that the accident had taken place on 15.3.2008 near Railway Bridge when the car was not insured with the OPs-Insurance Company. This defence taken up by the OPs-Insurance Company has no merit because earlier the car was insured with United India Insurance Company w.e.f. 02.04.2007 to 01.04.2008. Had the accident taken place on 15.3.2008 as alleged by the Investigator M/s. Royal Associates, then the complainant would have lodged the claim against United India Insurance Company and not the OPs-Insurance Company.


8. Moreover, the report Ex.R7 of M/s.Royal Associates relied upon by the OPs-Insurance Company can not be given any effect because Rashpal Singh Sarpanch on whose statement, the investigator has relied upon appeared before this Forum and filed his affidavit contradicting the finding of the investigator. To rebut the finding of the investigator, the complainant has also produced the affidavits Ex.A7 of Gurcharan Singh and Ex.R8 of Rashpal Singh, sarpanch. Rashpal Singh sarpanch has deposed that Malkiat Singh father of the complainant is residing in Rajasthan and occasionally come to village. The Investigator got his signatures on blank paper assuring him that he will write his statement as per rules. To the similar effect is the affidavit Ex.A7 of Gurcharan Singh. Sh.Kaka Singh complainant has also produced his affidavit Ex.A6 to controvert the aforesaid allegation of the Investigator of the OPs-Insurance Company. In view of these circumstances, the affidavit Ex.R2 of Kashmir Singh Surveyor and his report Ex.R7 can not be believed that the alleged accident had taken place on 15.3.2008 and not on 11.5.2008. Had the accident been taken place on 15.3.2008, then there was no occasion for Kaka Singh complainant to lodge the claim against the OPs-Insurance Company instead of previous insurance company i.e. United India Insurance Company.


9. The Investigator has further mentioned in his report Ex.R7 that the car in question was being run as taxi, but no evidence has been produced to prove the same. This plea of the investigator also falls like a house of cards.


10. Moreover, it is mentioned in the report Ex.R7 of the Investigator that the insurance policy was purchased by the complainant in connivance with agent and that the company may take suitable action against the said agent who has issued the cover note for the accidental vehicle, but no evidence has been produced to prove that the cover note in question was issued to the complainant in connivance with agent. Moreover, if the agent had been hand in gloves with the complainant while issuing the cover note in question, then no explanation is forthcoming as to why the OPs-Insurance Company did not take action against the said agent. The OPs-Insurance Company could have also cancelled the insurance policy to the complainant if the same was issued fraudulently by their agent. All these circumstances show that the OPs-Insurance Company has taken up a false plea that the alleged accident took place prior to the issuance of the policy just to repudiate the claim of the complainant. In view of the aforesaid facts and circumstances, we hold that the OPs-Insurance Company has wrongly and illegally repudiated the claim of the complainant on flimsy grounds. Hence they have committed deficiency in service while repudiating his claim.


11. The complainant has produced the bill Ex.A3 of Nagi Motors that he has spent Rs.70109/- on the repair of his car. In rebuttal, the OPs-Insurance Company has failed to lead any evidence. Even the report Ex.R7 of Kashmir Singh surveyor/ investigator is silent with regard to assessment of loss of car in question. Thus, relying upon the affidavit Ex.A1 of the complainant and bill Ex.A3 of Nagi Motors, we therefore hold that the complainant has suffered loss to the extent of Rs.70109/- on the repair of his car.


12. The ld. counsel for the parties did not urge or argue any other point before us.


13. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has merit and the same is accepted. The OPs-Insurance Company is directed to pay Rs.70109/- being the repair of car bearing registration no.PB-10AP-1313 alongwith compensation of Rs.10000/- on account of mental tension, harassment and agony to the complainant within 30 days from the date of receipt of copy of this order.

consumer case(CC) No. CC/08/163

SAtnam Singla
...........Appellant(s)
Vs.

M/s Sidhu Automobiles

Reliance General Insurance Co.

Reliance Central
...........Respondent(s)

BEFORE:
1. Neena Rani Gupta
2. P.S. Dhanoa
3. Sh Sarat Chander


Satnam Singla S/o Sh. Nohar Chand, resident of Ward No.10, Near Trivani Mandir, Mansa. ..... Complainant.

VERSUS

1.M/s Sidhu Automobiles, Link Road, Mansa, through its Manager /Partner/Proprietor.

2.General Manager, Reliance General Insurance Company, Divisional Office, Mall Road, Ludhiana.

3.Reliance Centre No.19, Registered office, Wal Chand Hira Chand Marg, Ballard Estate, Mumbai 400 001 through its M.D. ..... Opposite Parties.

Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh. M.L.Jindal,Advocate counsel for the complainant. Sh.G.S.Sidhu, Advocate counsel for the Opposite Party No.1. Opposite Party No.2 exparte. Sh.Naval Goel, Advocate counsel for the Opposite Party No.3. Before: Sh.P.S.Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member.


ORDER:- Sh.P.S.Dhanoa, President.


This complaint has been filed by Sh.Satnam Singla son of Sh. Nohar Chand, a resident of Mansa, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act'), against the opposite parties for payment of claim in the sum of Rs.3000/- and compensation in the sum of Rs.20,000/- on the averments, which may, briefly be described as under:

Contd........2 :

2 : 2. That the complainant has purchased a TVS Star Sports motorcycle bearing Registration No.PB31F-6276 from the Opposite Party No1 i.e. M/s Sidhu Automobiles, Link Road, Mansa. The complainant got insurance cover for his motorcycle bearing No.200702792747 for the period 15.3.2008 to 14.3.2009 from the Opposite Party No.2 i.e. Reliance General Insurance Company, Divisional Office, Ludhiana, through Opposite Party No.1. He paid premium in the sum of Rs.851/-. In the month of May, 2008, the motorcycle of the complainant met with an accident in which he sustained multiple injuries and damage was caused to his motorcycle about which he conveyed the intimation to Opposite Party No.2 through Opposite Party No.1 and his complaint has been registered at Sr.No.508678 in the register maintained in the office of Opposite Party No.2, as informed by Opposite Party No.1. The complainant got his motorcycle repaired from Opposite Party No.1 on 1.6.2007, who issued estimate dated 1.6.2008 in the sum of Rs.3,000/- for repair of motorcycle and he issued bill No.1525 dated 1.6.2008 in the sum of Rs.2901/-, but by mistake, date of bill has been mentioned as 1.6.2007 instead of 1.6.2008. The complainant served notice dated 13.9.2008 upon the Opposite Parties No.1&2 through registered post, but inspite of this, his claim has neither been settled nor paid because of which he has been subjected to mental and physical agony, as such, he is liable, to be compensated, for the same and for payment of amount spent by him, for filing the instant complaint. Hence this complaint.


3. On being put to notice, Opposite Party No.1 filed written version, resisting the complaint, by taking preliminary objections; that the complainant, is not the 'consumer' within the purview of its definition given in the Act, as such, his complaint, is not maintainable; that complainant, has no cause of action, and locus standi, to file the complaint and his complaint, being false and vexatious, is liable, to be dismissed, with costs of Rs.50,000/-. On merits, it is admitted that motorcycle was

Contd........3 :

3 : purchased from the answering opposite party, but it is denied for want of knowledge that Registration Number of the same is PB31F-6276, as such, complainant be put to strict proof. It is denied that any intimation regarding damage to his motorcycle was given to Opposite Party No.2 through the answering opposite party by the complainant. Rather it is averred that answering opposite party has no concern with the complaint. However, it is admitted that estimate in the sum of Rs.3,000/- was issued regarding damage caused to the motorcycle of the complainant and bill dated 1.6.2008 was issued in the sum of Rs.2901/- after affecting repair. Rest of the allegations, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.


4. The Opposite Party No.2 was proceeded against exparte vide order dated 18.11.2008. 5. The Opposite Party No.3 filed separate written version, resisting the complaint, by taking preliminary objections; that complainant, has no cause of action, and locus standi, to file the complaint; that this Forum has no jurisdiction to entertain and try the complaint; that the complainant has concealed the true facts that payment of Rs.1702/- as full and final settlement of his claim, has already been made to him; that the complainant is estopped by his own act and conduct to file the complaint, as he has already received the said amount in full and final settlement without protest and has issued discharge voucher and receipt with free consent and that the complaint being false and vexatious is liable to be dismissed with special costs. On merits, it is admitted that TVS motorcycle bearing Registration No.PB31F-6276 was got insured by the complainant from the answering opposite party vide Cover Note No. 200702792747 for the period 15.3.2008 to 14.3.2009. It is also admitted that complainant paid premium and sent intimation regarding damage caused to the motorcycle in the accident on 26.5.2008 after which extent of damage to his motorcycle was assessed by the Surveyor appointed by


Contd........4 :

4 : the opposite party in the sum of Rs.1702/- which he received as full and final settlement of his claim, but thereafter he filed the instant complaint in connivance with the Opposite Party No.1 after forging documents. Rest of the allegations, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.


6. On being called upon, by this Forum, to do so, the complainant, tendered in evidence, his affidavit Ext.C-1, and copies of documents Ext.C-2 and C-7 and closed the evidence. On the other hand, learned counsel for the Opposite Parties tendered in evidence affidavits and copy of documents Ext.OP-1 to OP-5 and closed evidence.

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

8. Learned counsel for the complainant, Sh. M.L.Jindal,Advocate has submitted that the motorcycle of the complainant met with an accident in the month of May, 2008, in which he sustained multiple injuries and damages was also caused to his motorcycle, but despite conveyance of intimation and service of legal notice upon the Opposite Parties No.1 and 2, his claim has neither been settled nor paid, due to which, he has been subjected to mental and physical harassment, as such, he is liable, to be compensated, for the same and for payment of amount spent by him, for filing the instant complaint.


9. At the outset, Sh.Naval Goel, Advocate, learned counsel for Opposite Party No.3 has drawn our attention to documents placed on file showing that he has received a sum of Rs.1702/- as full and final settlement of the claim from Opposite Parties No.1 & 2 without protest. Learned counsel has argued that payment has been made to the complainant strictly as per the report of the Surveyor, who is the best person, whose report cannot be brushed aside by the Forum unless there is some patent irregularity or illegality, as such, he is estopped from filing

Contd........5 :

5 : the complaint re-agitating the same controversy on the basis of forged documents secured by him in connivance with Opposite Party No.1. Learned counsel has argued that the complainant has not examined any expert from his own side whereas the answering opposite party has alleged connivance between him and the Opposite party No.1, who is admittedly dealer of manufacturing Company. In support of his contentions, learned counsel has placed reliance upon 2008(I) CLT 302 Gian Chand Gupta versus National Insurance Company wherein loss or damage was paid to the complainant by the Insurance Company relying upon the report of the Surveyor on account of which it was held by the Hon'ble National Commission that payment received by the complainant is not open to challenge. Learned counsel has further relied upon 2008 (II) CLT (NC) 379 National Insurance Company Ltd versus Krishna Rice Mills wherein the the complainant at no stage alleged either coercion or duress in acceptance of the amount of claim on account of which it was held that he will not be entitled for any payment other than that he has already accepted in full and final settlement of the insurance claim. Learned counsel argued that in view of the facts and proposition of law laid down in these authorities, the complaint, being abuse of process of court deserves to be dismissed with costs.


10. Sh.G.S.Sidhu, Advocate, learned counsel for the Opposite Party No.1 has submitted that no relief has been sought by the complainant against his client, as such, his complaint is liable to be dismissed against Opposite party No.1.


11. Admittedly, the complainant purchased a TVS Star Sports motorcycle bearing Registration No.PB31F-6276 from the Opposite Party No1 and got insurance policy from the Opposite Party No.2 for his motorcycle bearing Cover Note No. 200702792747 for the period 15.3.2008 to 14.3.2009 through Opposite Party No.1. There is no dispute that he paid premium in the sum of Rs.851/-. In the month of May, 2008,

Contd........6 :


6 : the motorcycle of the complainant met with an accident in which he sustained multiple injuries and damage was caused to his motorcycle. The complainant has not claimed any relief against Opposite Party No.1 in the instant complaint. It appears that he has been impleaded as party to the complaint as proper party because of issuance of estimate and bill after repair about the amount required to be spent to effect repairs to his motorcycle and issuance of bills, as such, complaint against Opposite Party No.1 is bound to fail.


12. The plea of remaining contesting opposite parties is that extent of damage to the motorcycle was assessed by the Surveyor appointed by him in the sum of Rs.1702/- after receipt of intimation about accident from the complainant. The Opposite Party No.3 has also placed on record Satisfaction Voucher Ext.OP-5 after receiving the sum of Rs.1702/- as full and final settlement of his claim . The complainant has neither denied the execution of the said document in the complaint, nor he has alleged that his signatures were obtained by the opposite party or its investigator or surveyor on some other pretext. He has also not alleged execution of the document by coercion or duress and no attempt has been made by him to get his signatures, affixed on that document, compared by any handwriting expert with his own specimen signatures. The perusal of the document reveals that some columns in the voucher have been left blank in the receipt which has been tendered as part thereof. The signatures of the complainant are not affixed on revenue stamp and space meant for the purpose. The Opposite Party No.3 has taken a specific objection in the written version regarding execution of documents and payment of Rs.1702/- to the complainant as per report of the surveyor, but no rejoinder has been filed by him to rebut these facts introduced first time in the written version by them. It is well settled that complainant has to succeed by standing on his own leg and not on the basis of any weakness in the case of the opponent. Therefore, we are unable to accede to the

Contd........7 :

7 : submissions made by the counsel for the complainant that documents referred to above are forged. It may not be out of place to mention here, that as per the admitted facts, estimate has been issued in the sum of Rs.3,000/- by Opposite party No.1 for repair of motorcycle of the complainant, but the bill Ext.C-2 has been issued in the sum of Rs.2901/-. There is also no cogent explanation as to why wrong date of issuance of bill has been mentioned by the Opposite party No.1. As such, on the face of the above said facts, the plea of the Opposite party No.3 cannot be rejected, especially when connivance, has been alleged between the complainant and the Opposite party No.1, against whom no relief has been sought, although he has been associated as party to the complaint. 13. In the light of the ratio of judgments delivered in the authorities relied upon by the learned counsel for the Opposite party No.3, we have come to the conclusion that there is no deficiency in service on the part of the Opposite parties No.2 and 3 in settlement of his claim, which may invite indulgence of this Forum, as sought by the complainant through the instant complaint, after receiving the amount of Rs.1702/-, with free consent without lodging protest and has affixed his signatures on the discharge voucher and receipt, without any coercion and duress.

Consumer Complaint No:479/2008


Between:

K. Simhachallam, S/o Appala Swamy, Hindu, aged about 50 years, D.No.36-95-161/1, Kapparada, Kancherapalem, Visakhapatnam - 8

… Complainant
And:

The Reliance General Insurance Co., Ltd., rep. by its Divisional Manager, O/o Divisional Office, located at 403, 3rd Floor, Eswar Paradise, Dwarakanagar Main Road, Visakhapatnam – 16.
... Opposite Party

This case coming on for final hearing on 20-04-2009 in the presence of Sri.D.Suresh Kumar, Advocate for the Complainant and of Sri. D. Siva Prasad, Advocate for the Opposite Party and having stood over till this date, the Forum delivered the following:

: O R D E R :

1.The factual matrix that led to the filing of this claim by the insured is the complainant, who is owner of the Hero Honda Passion plus Motor vehicle, bearing No.AP 31 AM 4326, got insured the vehicle with the opposite party, which was under force from 03-04-2007 to 02-04-2008. On 12-07-07 at around 8.45pm, the complainant along with his son, went to SKML Kirana Shop and parked his vehicle in front of the said shop. Admittedly he did not lock the vehicle and even left the key with the vehicle. When he returned from the shop, after the purchase, he found that his motor bike was stolen. He claimed to have informed the police immediately but the FIR No.494/2007 was registered on 25-07-2007 only. He claims to have informed the opposite party also about the loss of the vehicle immediately, but this assertion was denied by the opposite party, which stated that the intimation was given only in the month of August 2007 and thereafter they arranged investigation and the investigator by his letter dated 28-08-2007 requested the complainant to furnish relevant documents and pleads they were never furnished by the complainant. The police, who registered the crime, ultimately referred the case as ‘undetected’ by submitting final report Ex.A.6 dated 19-03-2008. The complainant even after receipt of the final report evidently did not submit the papers to the opposite party but filed this complaint preceded by legal notice dated 20-08-2008, which was received by the opposite party on 22-08-2008. The complainant claimed Rs.32,760/- being the value of the vehicle together with interest @ 24% p.a., on the policy and also damages for sum of Rs.50,000/- besides legal charges of Rs.11,000/-.


2.The opposite party is challenging the claim mainly on two grounds, firstly non-intimation of the loss of the vehicle immediately after the incident of theft to the insurance company, which is violation of the condition No.1 of the policy. Secondly even as per the report and the complaint, the complainant left the vehicle on road with keys and went into the shop and this amounted to his failure to take proper steps to safeguard the vehicle, which is violation of condition No.4 of the policy . By virtue of violation of these two conditions, the opposite party is repudiating the claim. In addition to it, also took up a plea that inspite of notice by the investigator, the complainant never submitted the relevant documents to it to consider the claim and pass appropriate orders and thus the complaint itself is premature. It also took up a legal plea that the complainant is not a consumer and so the complaint itself is not maintainable. Ex.B.1 is the policy issued by the opposite party.


3.At the time of enquiry both the parties filed affidavits and marked Ex.A.1 to Ex.A.8 and Ex.B.1 in support of their respective contentions and both the counsels reiterated their contentions relying upon certain judgements, which would be considered at the appropriate stages.


4.In view of the contentions of the either side the point that would arise for consideration in this complaint is:
Whether there is violation of policy conditions by the complainant entitling the Insurance Company to repudiate the claim and if not, to what extent it is liable?


5. In this claim, it is admitted insured motor vehicle is lost by way of theft. The insurer took up the plea that he is not a consumer and the Act has no application, in view of the admitted fact that the opposite party is an insurer and the complainant insured his vehicle with them and thus bound by the contract of insurance, there cannot be any doubt that the complainant would be a consumer and can approach this Forum for redressal of grievance, if any. As already noted the claim is being resisted on the ground of violation of condition No.1 and 4. Condition No.1 of the policy stipulates that “notice shall be given in writing to the Company immediately upon the occurrence of any accident or loss or damage and in the even of any claim and thereafter the insured shall give all such information and assistance as the Company shall require”(emphasis supplied by me). It further reads that “in case of theft or other criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the Company in securing the conviction of the offender”.


6. The above condition would clearly show that a duty is cast upon the insured to intimate the loss of the property to the insurer immediately after incident. In this case the theft of the vehicle took place on 12-07-2007. Though the complainant tried to put up the case that he immediately informed the theft of the vehicle to the opposite party, his own complaint would show that such intimation was given after registration of the FIR on 25-07-2007. It is to be noted that the opposite party plead that did not receive any intimation of loss of the vehicle from the complainant and only intimation by it was in the first week of August 2007. Thus it is quite evident that no immediate intimation was given by the insured and we cannot understand this lapse on his part in sending intimation to the Insurance Company, within a reasonable time. But at the same time we cannot ignore the claim of the complainant that he immediately approached the police informing them about the theft and they made enquiries and ultimately registered the case only on 25-07-07 cannot be brushed aside. So as the things stand, the loss of the vehicle by the complainant cannot be doubted. Though there is some lapse on the part of the complainant in sending intimation to the opposite party insurer, there cannot be any malafide intention and absolutely no inference that a false claim is made can be drawn. The requirements of immediate notice to the insurer of the incident involving the insured property is to enable it to investigate the claim and arrive at the truth.


7. The learned counsel for the opposite party placed reliance upon a decision of the apex court of Oriental Insurance Company Limited Versus Samayanallur Primary Agricultural Coop. Bank (1999) NCJ (SC) page 662 which laid down the principle that the “Insurance policy to be construed having reference only to stipulations contained in it and no artificial far fetched meaning could be given to words appearing in it”. The similar principle was laid down in a later decision in United India Insurance Company Limited Versus M/s Harchand Rai Chandan Lal 2004 NCJ 828(SC). In the first decision, distinction was drawn in between the words safe and cashier’s cash box and when insurance cover was provided for “safe”, the loss of jewellery in the ‘cash box’ was held to be not covered by policy. In the later decision, the burglary followed with violence in the policy conditions came for consideration and apex court suggested amendment of the policy condition in proper way upholding finding that ‘theft’ would not come under the word Burglary, as per the policy conditions.


8. It also relied upon a decision of the NC in The New India Assurance Co. Ltd., Versus Shri Dharam Singh in FA No.426/2004 dated 04-07-2006, wherein “failure to give notice of incident is violation of the policy condition and the insurer is entitled to repudiate the claim.” In this decision the Hon’ble Commission referred to the earlier decision of Davendra Singh’s case, wherein delay of four days in reporting the theft of the insured vehicle to the police and delay in reporting to the insurer of the theft after a gap of almost of a month was held in violation of condition of policy.


9. Thus the failure to issue appropriate notice to the insurer immediately is held to be violation of the policy condition. Though, as already observed by us the plea of the complainant that there was theft of the vehicle cannot be disputed, still failure of the complainant to issue notice to the insurer immediately amounted to violation of the policy condition as laid down by the decision cited above and opposite party rightly repudiated the claim.


10. With regard to the other ground of failure to follow proper safety measures to protect the property by the complainant, it is an admitted case that the complainant left the vehicle on road with keys with it and thus not even locked. This conduct of the complainant clearly amounts to failure to take proper precautions in safeguarding the property insured.


11. The counsel for the opposite party relied on a decision of Haryana State Commission in United India Insurance Co. Ltd., Versus Naresh Kumar in IV (2005) CPJ 602, wherein motor cycle was left outside shop, stolen – complainant negligent, vehicle left unattended, unlocked - policy terms violated – claim repudiated – complaint wrongly allowed by Forum – Order set aside in appeal. Complainant was held negligent and upheld the contentions of the Insurance Company. In another decision relied upon by the opposite party is in between Bajaj Allianz General Insurance Co. Ltd., Versus Mr. Bhagwan Hiralal Dhote in appeal No. 600/2005 dated 19-12-2005, the Maharashtra State Commission, upheld the plea of the Insurance Company, which reads “complainant left the key along with the vehicle. Keeping the key with vehicle is gross negligence. The above decisions relied upon by the opposite party’s counsel would clearly support their plea as to the way of interpreting the terms of the policy and that the complainant failed to take proper steps to safeguard the property insured is violation of condition No.4 of the policy.


12. Though the counsel for the complainant relied upon a decision of the Apex Court in National Insurance Co. Ltd., Versus Nitin Khandelwal, 2008(4) ALT 4 (SC), wherein the vehicle was stolen, the claim was allowed partly on non-standard basis, rejecting the contentions of the Insurance Company that there was violation of the policy condition as by using the vehicle as Taxi as not germane to the cause of loss and does not amount to violation of policy condition. Hence in our view this decision will not be of much help to support the contention of the complainant.


13. In the light of the above discussion, we hold by its failure to intimate the theft of vehicle immediately to Insurance Company and also failure to take proper steps to safeguard the vehicle, the complainant violated the condition No.1 and 4 of the policy and the opposite party Insurance Company has right to repudiate the claim. Accordingly this point is answered against the complainant.


14. In the result, the complaint is dismissed and in the circumstances of the case, each party is directed to bear their own costs. Advocate fee is fixed at Rs.2,000/-.

Sri.Siddalingswamiji Virakthamath, since deceased r/by Sri, Sanjay S/o Gadagayya Hiremath
...........Appellant(s)
Vs.

The Branch Manager, Reliance General Insurance Co., Ltd.,
...........Respondent(s)Sri. Sanjay Gadagayya Hiremath who is legal heir of late Sri. Siddalingswamiji Virakthamath under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the “Act”) against the Opposite Party (in short the OP) for awarding Rs.2,30,000=00 towards damage of vehicle, mental agony and cost etc.


2. The facts of the case in nutshell as is narrated by the complainant are as follows: The deceased Siddalingswamiji Virakthamath was the owner of the Tata Indigo Car bearing Registration No.MH-13/AC-1532 of 2006 model. He insured his vehicle under Policy No.1702372311100010 which was valid from 22.12.2006 to 21.12.2007 by paying premium. The said Policy covered risk of personal accident claim, own damage claim and third party risk.


3. On 18.01.2007 when he was proceeding from Bijapur to Zalaki on NH-13 Road, near the 2nd Petrol Pump at about 21.45 hours one Light Goods Vehicle bearing No.MH-10/K-6965 with a high speed came from the opposite direction dashed the vehicle. Due to the rash and negligent driving of the opposite side vehicle, the said Car was completely damaged and the driver and the owner of the Car died on the spot due to the said accident. The vehicle in question was financed by Mahindra and Mahindra Finance and was hypothecated with the said Company. The accident was registered at Bijapur City Traffic under P.S. Crime No.18/2007.


4. The complainant submitted his claim of accidental benefit to the OP since the vehicle was not in the repairable condition. Hence, the same was surrendered to the Financier i.e. Mahindra and Mahindra Finance Company. This is because the same was hypothecated with them. Then, the complainant also submitted his Claim Form to OP and requested to settled Personal Accident Claim.


5. The OP inspite of submission of all the documents went on postponing the settlement of the claim. Finally on 07.09.2007, the claim of the complainant was repudiated on the ground of driver not having driving licence. OP contended that the driver had the licence to drive LMV vehicle and was not entitled to drive the vehicle in question. Hence, the complainant was constrained to file the said complaint. The complainant prays for Rs.2,00,000=00 towards Personal Accident Claim, Rs.25,000=00 towards mental agony and Rs.5,000=00 towards cost.


6. After receipt of notice, OP appeared through Counsel and filed the objection to the said objection. In this, OP claims that the complaint is totally vexatious and frivolous and contrary to the law and facts of the case. However, OP admits about the Policy bearing No.1702372311100010 against the vehicle bearing No.MH-13/AC-1532. OP also admits at the time of the accident there was coverage of insurance. But, the said policy was issued to late Sri.Siddlingaswamiji Vikhatmath. The claim of Rs.2,000=00 towards Personal Accident, Rs.25,000=00 towards mental agony and Rs.5,000=00 for cost are all baseless. Mahindra and Mahindra Finance is a necessary party to the complaint. Hence, complaint deserves to the dismissed on the ground of non-joinder of necessary party. The driver of the vehicle was having valid driving licence to drive LMV tractor only. Hence, the claim of the complainant was not considered of the said repudiation by OP is legal and valid. OP had appointed surveyor immediately after the accident. But, due to the breach of Terms and Conditions of the Policy, the claim was repudiated and there is no deficiency in service rendered by OP to the complainant. Hence, OP prays to dismiss the complaint with compensatory cost.


7. Both the parties have filed affidavit in lieu of evidence. Now the following points do arise for our consideration in deciding the case. They are: (i) Whether the OP has rendered deficiency in service to the complainant entitling him to the claim as is sought for? (ii) What Order?


8. Our Findings to these points are as hereunder: i) Affirmative, ii) As per the operative portion of the Order here below.


9. We shall substantiate our findings on the following:


R E A S O N S


POINT NO.1: The advocate for the complainant has filed in all 11 documents which are marked as Exhibit C1 to C11. Perused the documents.


10. Exhibit C1, C3 and C4, C7 confirms the date of accident. Exhibit C5 is a PM Report of Late Sri. Siddalingswamiji who was the owner of the said Car. In this reason for the death of the owner when the car is noted as “I am of the opinion to the cause of the death due to shock, due to multiple boney and tissueal injuries. The times since death about 3-4 hours” This confirms the submission of the complainant that the deceased died due to the said sever accident on the spot.


11. The main contention of the OP-Counsel is that the Policy was not issued to the complainant. However, the complainant has produced xerox copy of the bill Exhibit C11. According to Section 2 (1) (b) (v) the Act permits the Legal heirs to file the complaint. Hence, we rule-out the said Objection of OP and proceed on the merit of the case. 12. The objection of the OP in repudiating the claim of the Personal Accident Benefit is not having proper Driving Licence at the time of the accident resulting into violation of the provisions of LMV Act, 1988. However, it can be seen in the Policy issued by the OP under the heading “Drivers Clause” :- that “any person including insured, provided that a person driving holds effective driving licence at the time of the accident and is not disqualify from holding or obtaining such licence.” Exhibit C6 is a Driving Licence of the driver at the time of the accident and it is seen from the same that the driver was holding the proper Driving Licence to drive LMV tractor from 23.09.1995 to 22.09.2015 and also was having licence to drive heavy vehicles which was valid from 29.04.2003 to 28.04.2006. This means, the driver was also having licence to drive the HMV uptill 28.04.2006. It seems that the said Driving Licence is of HMV was not renewed. But, he was having valid licence to drive the LMV vehicle from the year 2000 of 28.04.2006 and also LMV tractor from 23.09.1995 to 22.09.2015. According to the Terms of the Policy, the driver should not be disqualified for holding or obtaining such a licence. From the xerox of the Driving Licence it is not nowhere noted that the driver is disqualified for holding or obtaining such type of licence.
It means, the driver was having the necessary skill to drive the vehicle and also is not disqualified to drive the LMV vehicle. In addition, vehicle in question has unladen weight of 1000 KG which according to the judgement of Supreme Court (2008 Kant. M.A.C. 311 SC) in National Insurance Company V/s Annappa Irappa Nesaria and Others It is held that a driver having valid licence to driver Light Motor Vehicle authorized to drive Light goods vehicle as well. The goods carriage is one who’s unladen weight of the vehicle is less that 7500 KG’s.


13. In the light of the said Judgement the repudiation of the Claim of the complainant is the deficiency in service rendered by the OP to the complainant. This is also because the vehicle in question is Tata Indigo which is a Light Motor Vehicle. Hence, we answer to Point No.1 in affirmative.


14. POINT NO.2 : The complainant has prayed for Rs.2,00,000=00 towards the Accidental Policy, Rs.25,000=00 for mental agony and Rs.5,000=00 for cost of litigation. However, from the Policy condition, it can be seen that Owner – driver under Section 3 (Sum Insured) is Rs.2,00,000=00 and there is a deduction under Section 1 of Rs.500=00. Hence, the complainant is entitled to Rs.1,99,500=00 towards the Accident Claim from the OP. The complainant is also entitled to Rs.10,000=00 towards mental agony and Rs.2,000=0 towards cost of litigation. With these observations, we proceed to pass the following: O R D E R 1) The complaint of the complainant is partly allowed. 2) The OP is hereby ordered to pay Rs.1,99,500=00 (Rupees one lakh ninety nine thousand five hundred) towards Personal Accidental Benefit to the complainant within a period of 2 months of passing of this Order, failing which complainant is entitled to interest at the rate of 10% per annum from the date of filing of this complaint, till its entire realization. 3) The OP is also ordered to pay Rs.10,000-00 (Rupees ten thousand) towards mental agony & Rs.2,000-00 (Rupees two thousand) towards the cost of this litigation to the complainant. There is no order to pay interest towards the mental agony and also cost of litigation.

Speaking through Smt.Meenakshi Kulkarni, Lady Member.


1. This complaint is filed on 18.02.2009 as per Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the “Act”) against the Opposite Party (in short the OP) for awarding Rs.93,478=00 towards damage of vehicle, costs etc.


2. The facts of the case in nutshell as is narrated by the complainant are as follows: The complainant is the owner of Maxi Cab Tata bearing Reg. No.KA-28/A-7122 and insured the said vehicle with OP under Policy No.1407772340009206 which is valid from 27.01.2008 to 26.01.2009. Unfortunately, on 25.09.2008 on Siggavi-Hubli NH-4 Road, the said vehicle met with an accident in which the vehicle was completely damaged. The said accident was registered in Tadas Police Station under Crime No.61/2008. The complainant intimated about the said accident to the OP and requested to conduct the Survey for determining the damaged suffered by the vehicle. Then he got his vehicle repaired under the directions of the OP with S.C. Motors, Belgaum who is an authorized dealer of Tata Motors. The complainant spend Rs.53,478=00 for purchase of spare-parts, lubricants and in payment of labour charges. Thereafter, he produced all the bills to the OP for indemnifying his damages. However on 03.02.2009, OP repudiated the claim of the complainant under the pretext of driver not having valid driving licence at the time of the accident. The said driver has a valid licence and the same was produced to the OP. Hence, not settlement of the valid claim of the complainant, is a deficiency in service rendered by the OP. The complainant prays for Rs.53,478=00 towards purchase of spare-parts, labour charges etc., Rs.5,000=00 towards expenses incurred by the complainant for lodging, Rs.25,000=00 for mental agony and Rs.10,000=00 for cost of proceeding thereby making a total of Rs.93,478=00.

3. After receipt of the notice, OP appeared through his counsel. In the objections, OP claims that complaint of the complainant is totally vexatious and contrary to the law and facts of the case. However, OP admits about the valid policy of the complainant at the time of the accident. But, the OP completely denies the expenditure incurred by the complainant for repairing the vehicle of Rs.53,478=00 and also about the valid driving licence of the driver at the time of the accident. OP also denies all other expenses claimed by the complainant, such as expenses towards lodging, mental agony, cost of litigation etc. As per OP, the driver Sri. Ganesh Baburao Gotrale is having driving licence issued by R.T.O., Bijapur bearing No.1322/Bjp/2000 and this is valid from 21.03.2003 to 20.03.2006. The said driving licence was later on renewed with effect from 11.11.2008 to 10.11.2011 making it clear that driver did not have a valid licence as on the date of accident i.e. 24.09.2008. Inspite of this, Sri.Vinod Bhatkande who is the Surveyor and Loss Assessor Belgaum carried out the Survey and submitted his report under Report No.VIB/043/RGI/2008 dated: 17.12.2008. He also submitted his Re-inspection Report under bearing No.VIB/044/RGI/2008 on the same date. Not holding the valid and effective driving licence at the time of accident is clear violation of provisions under Motor Vehicle Act, 1998. Hence, OP is right in repudiating the claim of the complainant and accordingly, the repudiation letter dated: 03.02.2009 was send to the complainant by OP. No cause of action has arisen to file the said complaint. OP prays to dismiss the complaint with compensatory cost.


4. The complainant has filed Written Arguments and 10 documents in support of his case which are marked as Exhibit C1 to C10. OP Counsel has filed 9 documents in support of his case which are marked as Exhibit OP1 to OP9. Both the parties have filed affidavit in lieu of evidence. Now the following points do arise for our consideration in deciding the case. They are: (i) Whether complainant is entitled to the relief as is sought for due to deficiency in service rendered by OP? (ii) What Order?


5. Our Findings to these points are as hereunder: i) Affirmative, ii) As per the operative portion of the Order here below. 6. We shall substantiate our findings on the following:

R E A S O N S


POINT NO.1: The learned advocate for the complainant advanced the arguments as per the contention taken by him in his complaint and the written arguments. The advocate for OP advanced the argument as per the defence taken by the Objection Statement. We perused all the documents produced before this Forum.


7. Exhibit OP1 and C2 are the Insurance Policies issued by the OP to the complainant. From this, it is very much clear that the Policy was inforce at the time of the accident. Exhibit C3 and OP2 are the R.C. Book of the vehicle. From which, it is clear that the complainant is the owner of the vehicle in question. Exhibit OP6 and C4 are the Driving Licence of the driver at the time of the accident. 8. There is no dispute between the parties about the name of the driver at the time of the accident being Sri. Ganesh Baburao Gotrale. The main contention taken by the OP is that the complainant’s driver did not have the valid driving licence at the time of the accident. We perused the xerox produced by both the parties and found no difference in the same. The said Driving Licence is issued by R.T.O. Bijapur bearing D.L. No.1322/2000. This is agreed by both the parties. The main contention taken by the OP-Counsel is that the driver of the complainant was not having valid and effective Driving Licence at the time of the accident. We compared the xerox copy of the Driving Licence produced by both the OP and the complainant. In this, it is found that the said Driving Licence is valid from 18.08.2000 to 31.05.2016 for Driving Motor Cycle with light Motor Vehicles. The accident has taken place on 24.09.2008. This means, the driver was holding the valid Driving Licence at the time of the accident.

It is really amazing to note that how such an important point has gone un-noticed by the OP in settlement of the complainant’s claim. The objection raised by the OP-Counsel is that the renewal of the Driving Licence was on 11.11.2008 and was valid upto 10.11.2011 for Driving heaving transport vehicle. But, this renewal does not come in any way in settling the legal and valid claim of the present complainant in our hand. Because, the vehicle in question is Light Motor Vehicle and the driver is having the valid Driving Licence to drive the said vehicle. The vehicle in question is Light Motor Vehicle, because as per the R.C. Book which is Exhibit OP3, it can be seen that the unladen weight of the vehicle is 1000 KG.


9. It is decided by the Supreme Court in 2008 Kant. MAC 311 (SC) in National Insurance Company V/s Annappa Irapppa. In this, it is held that: “the vehicle is considered to be as a Light Motor Vehicle who is unladen weight is less than 7500 KG’s.” In the present case in hand, the unladen weight is just 1000 KG. Hence, the repudiation of the claim on the ground of not having valid driving licence by the OP is the deficiency in service rendered b the OP to the complainant. This is because if the claim was settled by the OP in-time there was no need for the complainant to approach this Forum. So, the complainant is entitled to the claim as is sought for. Accordingly, we answer the Point No.1 in affirmative.


10. POINT NO.2: In deciding as to how much compensation complainant is entitled? We goby the Survey Report produced by the OP-Counsel. In this, it is seen that OP was ready to settled the claim as Rs.32,656=46 rounded to Rs.32,656=00. The Survey Report is an important peace of document in settling the Insurance Claim. So we goby the same. The complainant has asked for Rs.25,000=00 for mental agony. There is no doubt that the complainant has undergone for mental agony and torture due to the non-settlement of his valid claim and negligence on the part of the OP by not checking thoroughly the documents produced by the complainant. Hence in our view, the complainant is entitled to Rs.10,000=00 towards mental agony. The complainant has not produced any documents towards his lodging expenses. Hence, the same is not granted. The complainant is also entitled for Rs.1,000=00 towards cost of litigation. With these observations, we proceed to pass the following: O R D E R 1) The complaint of the complainant is partly allowed. 2) The OP is hereby ordered to pay 32,656.00=00 (Rupees thirty two thousand six hundred fifty-six rupees) towards damage of the vehicle from the complainant within 2 months of passing of this Order, failing which complainant is entitled to interest at the rate of 10% per annum from the date of filing of this complaint, till its entire realization. 3) The OP is also ordered to pay Rs.10,000-00 (Rupees ten thousand) towards mental agony & Rs.1,000-00 (Rupees one thousand) towards the cost of this litigation to the complainant.

The complainant has come up with this complaint for recovery of Rs.50,025/- by way reimbursement of medical expenditure from the opposite parties, on the ground that she had taken mediclaim policy, but the opposite parties have failed to reimburse it.
Where as the opposite parties have taken a contention that the complainant despite informing on more than one occasion to submit a claim with necessary bills for considering her claim for reimbursement of the medical expenditure has not submitted the same, therefore when the claim of the complainant is not at all repudiated there is no cause of action for the complainant to file this complaint and thus has submitted for dismissal of the complaint. In the course of arguments the counsel representing the opposite parties made an offer to the complainant and even now if the complainant makes a claim with opposite parties with necessary hospital bills for reimbursement of the expenditure, the opposite parties are agreeable to scrutinize the same and take necessary action as per rules.

At this stage the learned counsel appearing for the complainant did not dispute the fact that the complainant has not at all made any claim with the opposite parties by enclosing necessary documents. Having regard to this fact the complainant in our view is pre-mature, however we suggest that the complainant shall submit her claim to the concerned opposite parties with necessary hospital bills in compliance of the requirements for reimbursement of medical expenditure. On making such a valid claim by the complainant the opposite parties shall dispose of the claim of the complainant by way of reimbursement of hospital expense if it is found admissible within 30 days from the date of receipt of the claim of the complainant with this observation the complaint is disposed off accordingly.

Complainant Smt.K.P.Shylaja, W/o Lingabasavaradhya, D.No.675/5, 23rd Cross, Hebbal, 2nd Stage, Mysore. (By Sri.M.Lokesh., Advocate)

Vs.


Opposite Parties 1. Manager / Proprietor, M/s Trident Automobiles Pvt. Ltd., No.201/1, and 201/2, Hinkal Village, Kasaba Hobli, Hunsur Road, Mysore-570017.

2. M/s Reliance General Insurance Co.Ltde., (Anil Dhirubhai Ambani Groups), Branch Office situated at 1st Floor, Mysore Trade Centre, Opp. KSRTC Bus stand, Mysore-570001. (By Sri.Srivatsa.D.Hardar, Advocate for O.P.1 and Smt.K.L.Sugandhi, Advocate for O.P.2)

Nature of complaint :

Deficiency in service Date of filing of complaint : 18.12.2008 Date of appearance of O.Ps. : 03.02.2009 Date of order : 06.04.2009 Duration of Proceeding : 2 MONTHS 3 DAYS PRESIDENT MEMBER MEMBER Sri.D.Krishnappa, President


1. The grievance of the complainant in brief is, that she purchased a new Chevrolet Tavera B2 Jeep from the first opposite party on 20.03.2008. That was insured with the second opposite party with effect from 20.03.2008 till 19.03.2009. That the said vehicle met with an accident on 08.07.2008 and F.I.R. came to be filed in this regard. The vehicle was given to the first opposite party for estimation of the repair, which was estimated at Rs.4,29,874.31 with additional sub estimation of Rs.60,862.07. The surveyor of the second opposite party assessed the damage to the vehicle and the second opposite party taking into consideration the assessment made by their surveyor have only paid Rs.2,35,930/- through first opposite party, but have failed to pay the balance amount of Rs.1,53,727/-.
That the first opposite party raised the repair charges bill at Rs.3,89,657/- assuring that payment will be made, but the opposite parties failed to honour the claim as estimated, thus she was compelled to pay the balance of Rs.1,53,727/- and to get the vehicle delivered to her possession and therefore contending that the opposite parties have caused deficiency in their service has prayed for a direction to the second opposite party to settle the balance amount of Rs.1,54,070/- and to award compensation of Rs.1,00,000/- and other expenditure.


2. The first opposite party in their version admitted to had sold the vehicle in question to the complainant and also that vehicle met with an accident. The first opposite party has also admitted payment of Rs.2,35,930/- as repair charges as forwarded by the second opposite party to the complainant, but stated that they are not aware of the second opposite party not settling the balance amount of Rs.1,53,727/-.
This opposite party has also admitted that final bill of repair charges was raised to Rs.3,89,657/- and was sent to the second opposite party for settling, admitting that the complainant also made a request to settle the balance of Rs.1,53,727/- has denied any deficiency at their end and prayed for dismissal of the complaint against them.


3. The second opposite party in their version have not disputed that the vehicle had been insured with them and had valid insurance policy as on the date of accident. They have also admitted to have settled the claim of the complainant to an extent of Rs.2,39,930/- and denied to have not paid Rs.1,53,727/-. By further contending that amount has been appropriated towards depreciation value and the salvage amount, which has to be born by the insured, has by further reasserting that after appropriation of the balance amount towards the above heads contend to have settled the claim by paying Rs.2,35,930/- and thus has prayed for dismissal of the complaint.


4. In the course of enquiry into the complaint, the complainant and opposite parties have filed their affidavit evidence. The complainant has produced copy of the insurance policy, conditions of insurance and bills raised for having got the vehicle repaired. Opposite parties have also produced copies of the insurance and also bills. Heard the counsel for both the parties and perused the records.


5. On the above contentions, following points for determination arise. 1. Whether the complainant proves that the second opposite party has caused deficiency in their service in not settling the claim in terms of insurance policy and thereby have caused deficiency in their services? 2. To what relief the complainant is entitled?

6. Our findings are as under:- Point no.1 : In the Affirmative. Point no.2 : See the final order.


REASONS

7. Point no. 1:- As could be gathered from the contentions of all the parties, there is no dispute with regard to the fact that the vehicle purchased by the complainant from first opposite party was insured with second opposite party and that the vehicle met with an accident within 6 months from the date of sale and it had valid insurance as on the date of the accident. The complainant and first opposite party have concurred with each other that the complainant incurred repair expenditure of Rs.3,89,657/- and when the claim for reimbursement of the same was made with the second opposite party the insurer, but, the insurer has only reimbursed Rs.2,35,930/- and declined to reimburse the balance of Rs.1,53,727/- on the ground that balance is adjusted towards policy excess, consumable items and towards salvage. But, the counsel for the complainant inviting our attention to the undisputed fact that the vehicle met with an accident within 6 months from the date of its sale, further also referred to the conditions of the insurance, which provide no depreciation for the vehicle of that age. Further he also invited our attention regarding reimbursement of the cost of consumable items like rubber, and other similar items, wherein the conditions provide for reimbursement of 50% of the cost of the consumable articles, if the accident had taken place within 6 months and therefore submitted that the second opposite party is not justified in not reimbursing the balance amount and thereby as sought for the relief has prayed for.


8. Whereas the counsel appearing for the second opposite party without disputing the submission of the counsel for the complainant regarding the age of the vehicle, reimbursement of 50% of the consumable article cost as per the conditions of policy argued that the surveyor of second opposite party who after inspecting the damaged to the vehicle has assessed the total loss as Rs.2,49,442.78 deducted cost of salvages and the cost of consumable articles and has recommended for payment of Rs.2,35,930/- only and that has been paid by the second opposite party to the complainant and further submitted that report of the surveyor cannot be rejected and in support of her arguments relied upon a decision reported in IV (2007) CPJ page 196 NC and submitted for dismissal of the complaint. We agree if a surveyor has prepared the report of damage assessment by considering the factual aspects and in accordance with the conditions of license it may be accepted. But, in the instant case, the surveyor deducted depreciation, which is not permissible under the condition of the policy itself. Because under the condition of policy, if the age of the vehicle has not exceeded 6 months, depreciation is shown as Nil, therefore when the age of the vehicle in question had not exceeded 6 months, he should not have allowed depreciation.
Similarly, depreciation with regard to all rubber, nylon, plastic parts, tyres, tubes, batteries etc., of the vehicle, who age has not exceeded 6 months is shown as 50%. That being so the surveyor has allowed depreciation against the conditions of policy, which cannot be done.

Thus the complainant is entitled for 50% of the consumable articles cost, plus labour charges. Therefore, even according to the report of the surveyor, total parts cost inclusive of taxes and other levies is shown as Rs.9,49,422.77, if labour charges of Rs.52,893.49 is added and 50% to the consumable articles cost like rubber, nylon etc., which is estimated at Rs.85,051.58 as per the bills, and if 50% is allowed it would come to Rs.42,500/-. If these 3 figures are added it comes to Rs.3,44,836.25, out of this, the second opposite party has already paid Rs.2,35,930/.

The complainant has conceded that salvage cost is estimated at Rs.16,000/- and that he has received salvages from the garage concerned and if that is deducted from the amount payable by second opposite party, the net amount payable to the complainant by second opposite party is Rs.92,906.25, for which the complainant would become entitled and thus the second opposite party in our view has caused deficiency in the service in not paying that amount. With this, we answer point no.1 in the affirmative and pass the following order:-


ORDER

1. The Complaint is allowed.

2. The second opposite party is directed to pay Rs.92,906.25 within 60 days from the date of this order, failing which it shall pay interest at 9% p.a. from the date of this order till the date of payment.

3. The second opposite party shall also pay cost of Rs.1,000/- to the complainant.

4. Complaint against the first opposite party is dismissed.

Mrs Rajni Devi wife of Sh.Veer Chand resident village Aleo , Post Office Manali, Tehsil Manali, District Kullu,H.P.

…Complainant


V/S

Reliance General Insurance Company Limited through its Branch Manager Branch Office 126/2 First Floor Ram Nagar Near Namdhari Gurdwara, Mandi District Mandi, H.P.

…..Opposite party

For the complainant Sh. Rakesh Bodh ,Advocate
Vice Sh. Roshan Lal.Thakur, Advocate
For the opposite party Sh. R.K Thakur, Advocate vice
Sh.Vishwa Raj Advocate


Complaint under Section 12 of the
Consumer Protection Act, 1986.



ORDER.


This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he is owner of vehicle No. HP-01K-1488 ( Sumo Spacio) The complainant insured the said vehicle with the opposite party and the insurance was valid with effect from 17-4-2007 to 16-4-2008.During the currency of the insurance policy, said vehicle met with an accident on 4-9-2007 at Rahni Nalla Manali and the same was totally damaged . The matter was reported to the Police Station Manali and on 4-9-2007 First Information Report No.252 was recorded . The Surveyor of the opposite party visited the spot and all the relevant documents were also handed over to the Surveyor at that time but the opposite party did not settle the claim. The complainant served the opposite party with legal notice dated 10-7-2008 to settle the claim but the same had not been settled till date It had further been alleged that the non settlement of the claim is deficiency in service as the opposite party is legally bound to settle the claim . With these averments , the complainant had sought a direction to the opposite party to pay Rs.3,90,000/- for loss of the vehicle and a sum of Rs.50,000/- on account of harassment and Rs.5000/- as cost of litigation.


2 The opposite party resisted the complaint by filing reply in which preliminary objections have been raised that the present complaint is not maintainable , that there is no deficiency in service on the part of the opposite party and that the complainant did not comply with the claim formalities , hence the claim was closed.. On merits, the opposite party had averred that the complainant has not complied with the claim formalities despite repeated requests by the opposite party and hence the claim was ultimately closed vide letter Annexure O.P-1. The opposite party has pleaded that the loss assessed by Surveyor was to the tune of Rs.2,84,000/- on net of salvages basis subject to the satisfaction of terms and conditions of the insurance policy . The opposite party has averred that relief claimed is highly exaggerated and without any basis and there is no other authentic proof of loss except for the Surveyor report. The opposite party had prayed for dismissal of the complaint .



3. We have heard the ld. counsel for the parties and have carefully gone through the entire record. Be it stated that the opposite party in its reply has not denied the factum of insurance of the vehicle in question and its accident. The opposite party has also not denied that the information in this regard was given to it . The opposite party has rather averred that the surveyor had recommended the loss on net of salvage basis in the sum of Rs.2,84,000/- subject to terms and conditions of the policy. As per the complainant, the claimed lodged by him has not been settled. On the other hand, the opposite party had pleaded that the claim was closed as No claim as the complainant has not complied with the claim formalities despite repeated requests. The opposite party had pressed into service letter dated 30-10-2008 Annexure O.P-1 vide which the claim was repudiated. Strangely enough , the letter vide which the claim was repudiated as per the reply of the opposite party, the same has been addressed to one Shiv Khal Bhandar , Panipat and not to the complainant. In the said letter Annexure O.P.1 it has been written as under:-


“ We would like to draw your attention to all our previous letters dated 29/0/2008, 8/10/2008 and 20/10/2008 with reference to the above claim. We regret to inform you that till date we have not received requisite documents inspire of repeated reminders and presume that you are no longer interested in the claim. We are therefore constrained to file this claim as closed. ….”



The opposite party had even failed to adduce in evidence alleged letters dated 29-9-2008, 8-10-2008 and 20-10-2008 written to the complainant. The bald assertion of the opposite party cannot be considered as gospel truth that the complainant has not complied with the required formalities . We find a good deal of substance in the version of the complainant that the claim has not been settled by the opposite party till date and the version of the opposite party is an after thought. The opposite party has been deficient in rendering service to the complainant as just and legitimate claim of the complainant has not been settled without any reason.



4 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the vehicle. The complainant in his complaint had claimed the assessment of the loss on total loss basis i.e. insurance sum. On the other hand ,the opposite party has admitted in his reply on merits and stated that the surveyor has recommended the loss on net of salvages basis at Rs.2,84,000/- which is payable subject to the terms and conditions of the policy .The report of surveyor is dated 25-1-2008 Annexure OP.2 The perusal of the report depicts that he had recommended the loss at Rs.2,84,000/- on net of salvage basis . The opposite party has also adduced in evidence the affidavit of Surveyor Sh. Kailesh Chandre dated 20-3-2009 in which he has specifically deposed that indemnity has been recommended at Rs.2,84,000/- on net of salvages basis. The complainant had not adduced any evidence contrary to the report of Surveyor .Moreover the report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons. The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kiran Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle is at Rs.2,84,000/- on net of salvage basis



5 The complainant had claimed Rs.50,000/- as compensation on account of harassment and mental tension, due to deficiency in service on the part of the opposite party. As discussed above the opposite party has been deficient in providing service to the complainant , therefore he is entitled to some reasonable compensation on this score . Hence , It would be in the interest of justice ,if we award a sum of Rs.10,000/- as compensation.





6 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.2,84,000 /- alongwith interest at the rate of 9% p.a. from the date of filing of the complaint till realization to the complainant The opposite party is further directed to pay Rs.10,000/- as compensation on account of harassment and Rs.5000/- as costs of litigation.

Shri Kuldeep Singh



… Complainant.

Versus



The Reliance General Insurance Company Ltd.



…Opposite Party.


O R D E R:

Pritam Singh (District Judge) President (Oral):-


1. The case is today fixed for the evidence of the OP-Company, but it maybe stated that the defence of the OP-Company has already been struck off by this Forum vide order dated 22/12/2008. As no reply on behalf of the OP-Company is on record, therefore, the OP-Company has no right to lead the evidence, without their reply on record. Hence, we heard the learned counsel for the complainant and also perused the record of the case.


2. It is the case of the complainant that the vehicle bearing registration No.HP-01A-1289 owned by the complainant was duly insured with the OP-Company for sum of Rs.4,99,000/- w.e.f. 26.03.2007 to 25.03.2008. It is further case of the complainant that during the currency of the insurance policy the vehicle in question met with an accident on 10.10.2007 when it was on its way from Jangla to Thalli and it sustained extensive loss. FIR to this effect was lodged at Police Station Chirgaon and the insurance claim was also preferred with the OP-Company. That thereafter, the vehicle was got repaired at the instance of the OP-Company from the authorized dealer by incurring Rs.54,410/- . But the OP-Company neither settled his insurance claim nor sent any intimation to the complainant in this behalf.


3. As the OP-Company has not filed the reply and their right to file the reply was closed by order of the Forum, on 12.12.2008. However, the undisputed position is that the vehicle in question was duly insured with the OP-Company vide insurance cover note Annexure P-2, which met with accident and FIR vide Annexure P-4 was also lodged at Police Station Chirgaon. That the vehicle in question sustained extensive damages, therefore, it was got repaired from the authorized dealer and the repair bills Annexure P-6 to the tune of Rs.54,410/- are also placed on record by the complainant. In addition to this, the complainant has also filed affidavit in support of the allegations contained in the complaint.


4. As such, the oral and documentary evidence led on record by the complainant remained unrebutted, therefore, we are constrained to hold that the genuine insurance claim of the complainant was not settled by the OP-Company without any reasonable & just cause, which act on the part of the OP-Company amounts to deficiency in service and unfair trade practice and complainant is entitled to be indemnified by the OP-Company for the loss.


5. Resultantly, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of Rs.54,410/- alongwith interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 13.03.2008 till making full payment of the aforesaid amount. The litigation cost is quantified at Rs.1500/- payable by the OP-Company to the complainant. This order shall be complied with by the OP-Company within a period of forty five days after the date of receipt of copy of this order.