Gurdeep Singh son of Sh. Dapinder Singh, resident of Talwandi Gate, Raikot, Ludhiana.

(Complainant)

Vs.



1. The National Insurance Co. Ltd. Division XV, Rabindra Sarani, Pooddar Court, Gate No.4, 6th Floor, Kolkata-700 001, through its Divisional Manager.



2. The National Insurance Company Ltd. Divisional Office No.1, Dhuri Railway Lines, Attam Park, Ludhiana.



3. M/s Magma Leasing Ltd. Savitri Complex, G.T. Road, Dholewal Chowk, Ludhiana through its Manager.



4. M/s Magma Leasing Limited, SCO 317-318, 1st Floor, Sector 34-B, Chandigarh through its Manager.



5. M/s Magma Leasing Limited, Moga through its Manager.

(Opposite parties)



O R D E R

T.N. VAIDYA, PRESIDENT:

1. After obtaining finance from opposite parties no.3 to 5, complainant purchased a second hand truck bearing registration no. PB-05-G-9943 from Sh. Balbir Singh. He got the truck insured from opposite parties no.1 & 2 vide policy no.150100/31/00/6300000959, valid from 1.4.2006 to 31.3.2007. The truck was stolen on 14.2.2007, qua which lodged FIR no.28 dated 14.2.2007 in P.S. Raikot but the police failed to trace the same.

Opposite parties no.1 & 2 were approached time and again to settle his insurance claim, but they failed to make payment to the complainant or his financer opposite parties no.3 to 5. Consequently, in this complaint under section 12 of the Consumer Protection Act, 1986, sought direction for deficiency in service by opposite parties no.1 & 2 to pay him insurance claim of Rs.5,00,000/- for which the vehicle was insured and settle his claim.

2. Opposite parties no.1 & 2 admitted obtaining insurance of the truck by the complainant and lodging the insurance claim after theft. But claimed that there is no deficiency in service on their part. As, on receipt of the claim same was forwarded to opposite parties no.3 to 5 for processing the same and engaging surveyor to look into the matter. Matter remained pending with opposite parties no.3 to 5 who were in communication with the complainant. Complainant failed to furnish the documents required to process the claim, so, the claim could not be processed and settled. Qua it, letter dated 23.9.2008 for supplying documents was written to the complainant and on their application the Fora vide order dated 22.10.2008 directed the complainant to supply the documents but he failed to supply the same. Hence, there is no deficiency in service on their part.

3. Opposite parties no.3 to 5 by way of separate reply claimed that complainant had been plying the vehicle for commercial purpose, so, not entitled to file the complaint. He has no locus standi to institute the complaint and is estopped by his act and conduct. Releasing loan for purchase of the truck to the complainant is conceded and that he was bound by loan agreement.

4. Parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

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

6. It is admitted that claim so lodged by the complainant with the opposite parties no.1 & 2 has not been settled. For non settling, defence of OP-Insurance Company is non compliance of their letter dated 23.9.2008 (Ex.R.2). Under that letter, opposite parties no.1 & 2 required complainant to furnish the following documents:

1) Original FIR and Police Final Report

2) Claim Form duly filled up by you.

3) Intimation letter to RTO/DTO.

4) Original Registration Book, Fitness Certificate and Tax Token.

5) NCRB Report.

6) 2 Nos. of Ignition Key

7) Letter of Subrogation.

8) Form No.29, 30, 35 from the R.T.O./D.T.O. (duly Filled)



7. Subsequently during trial, an application was moved by the opposite parties no.1 & 2 directing the complainant to supply all those documents. Fora vide order dated 22.10.2008 required the complainant to supply the documents as mentioned in the application of the opposite parties no.1 & 2 but he failed to do the needful.

8. At the time of arguments, it was pointed on behalf of opposite parties no.1 & 2 that once documents sought under letter Ex.R.2 are made available, they will settle the claim.

9. In view of such aspects, we allow this complaint and consequently direct complainant to make available the documents to opposite parties no.1 & 2 as mentioned in letter Ex.R.2. Whenever such documents are made available, opposite parties no.1 & 2 shall acknowledge the same in writing by giving receipt to the complainant. Then the opposite parties no.1 & 2 shall decide the claim of the complainant within 45 days of the receipt of such papers from the complainant. In peculiar circumstances, we leave the parties to bear their own costs.

1. Darshan Kumar Saluja proprietor of M/s Khurana Fabrics 6147/E, new Kidwai Nagar, Hargobind Nagar, Ludhiana.



2. M/s Khurana Fabrics, 6147/E, New Kidwai Nagar, Hargobind Nagar, Ludhiana through its prop. Sh. Darshan kumar Saluja.

(Complainants)

Vs.



National Insurance Company Ltd. Branch Office No.5, Gill Road, Miller Ganj, Ludhiana, through its Branch Manager.

(Opposite party)

O R D E R

T.N. VAIDYA, PRESIDENT:

1. This complaint has chequered history. The complaint was initially decided by the Fora vide order dated 25.3.2002 dismissing the complaint, requiring complainant to approach the Civil court, if feels not satisfied with the order. Order of the Fora was reversed by the Hon’ble Union Territory State Consumer Disputes Redressal Commission, Chandigarh, to which the case was transferred for disposal. Hon’ble Union Territory State Consumer Disputes Redressal Commission, Chandigarh, vide order dated 1.8.2008 set aside the order of the Fora, directing the Fora to decide the case afresh after giving opportunity to both the parties, by concluding that the dispute can be settled by the Fora and no need to refer the same to the Civil Court.

2. Be it stated that on receipt of order of the Hon’ble U.T. Commission, Chandigarh, it was disclosed that the original record of the complaint has been destroyed. Therefore, the file was reconstructed and when both the parties consented that file has been reconstructed completely, they were heard through respective counsels.

3. Briefly stated, case of the complainant was that complainant no.1 being proprietor of complainant no.2 obtained two Fire Insurance Policies from the opposite party against its finished, unfinished stock and raw material. First policy was for Rs.4,00,000/- valid from 7.10.1997 to 6.10.1998 and the second policy was for Rs.9,00,000/- valid from 18.12.1997 to 17.12.1998. Under the policies all kinds of raw material, finished and unfinished goods were covered. Unfortunately, on 28.5.1998 at about 3 p.m. fire broke out in the factory premises of complainant no.2 due to electric short circuit. On receipt of telephonic information, complainant no.1 reached factory, intimated fire brigade, who came and extinguished the fire after three hours. Intimation to Police Station Division no.2 was given. Fire caused loss of Rs.4,55,831/-. Intimation was also given to opposite party who appointed M/s Kapoor & Company Surveyor & Loss Assessor to assess the loss. Surveyor visited the premises, took photographs, but heard nothing from the opposite party despite lapse of long period.

Hence, filed the complaint. Written reply in that complaint was filed by opposite party and through which it came to known that they had deposited Rs.50,400/- as full and final settlement through cheque dated 29.4.1999 in his bank account. But he was never intimated by them. Nor any voucher was got executed regarding receipt of such payment. He had never authorised the bank to receive compensation under the policy on his behalf. Opposite party malafidely deposited amount in his account without intimation to him. But the Fora decided that amount as deposited in account of the complainant was not full and final settlement and assessment by the surveyor of the opposite party was made without applying his mind. That assessment was set aside, with direction to opposite party to appoint a new surveyor for settlement of the claim within three months. Subsequently, received letter dated 29.11.2000 from opposite party intimating that they had no liability except for the amount of Rs.50,400/- which has been already paid to bank of the complainant.

Thus, it came to his notice that opposite party appointed new surveyor M/s Consolidate Surveyors (P) Ltd. who recommended loss of Rs.50,489/- only. That surveyor never visited his premises, nor checked record. Appointment of such surveyor was an eye wash. Second surveyor acted at his own whims. Second surveyor also assessed loss at Rs. 62,050/- as was assessed by the first surveyor M/s Kapoor & Company. Also that second surveyor never applied his mind. Such report is also arbitrary, who wrongly assessed the loss. In fact, loss suffered by the complainant due to fire was Rs.4,55,831/-, so, is entitled for this amount with 12% per annum interest along with damages of Rs.10,000/-on account of deficiency in service by opposite party.

4. Opposite party in reply claimed that complaint is not maintainable, complainant is estopped by act and conduct to file the complaint, which is bad for mis joinder and non joinder. However, obtaining two policies by the complainant is conceded. Damage by fire is denied for want of knowledge. Complainant never suffered loss on account of such fire. But he lodged the claim. Consequently M/s Kapoor & Company surveyors were appointed. Complainant failed to co-operate with the surveyor by furnishing the documents. Surveyor assessed the loss at Rs.50,500/- which was settled, paid and accepted by the complainant. There is no deficiency in service on their part. As per directions of the Fora, new Surveyor was appointed and on receipt of report of the surveyor, claim was settled amounting to Rs.50,489/-, and the amount as found due by second surveyor had already been paid and no further payment was due to the complainant. Complaint deserves dismissal.

5. Parties led their evidence by way of affidavits and documents in support of their respective contentions.

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

7. It is contended on behalf of the complainant that the total loss to the insured goods was to the tune of Rs.4,50,000/- and claim so lodged with the opposite party has wrongly and illegally been rejected. Complainant was able to prove such loss from material produced before M/s Kapoor & Company Surveyor & Loss Assessor engaged by the opposite party. But he ignored the same and also wrongly applied average clause, to assess the total damage. Second surveyor engaged on directions of the Fora M/s Consolidated Surveyors Private Ltd. made no independent assessment and simply based on report of first surveyor M/s Kapoor & Company. Therefore, second report is untenable. It was contended that the opposite party fabricated receipt qua full and final payment and without intimating to the complainant deposited part of the amount in his bank account, without intimation.

8. On the other hand, it is argued by the ld. counsel for the opposite party that the complainant equited opposite party after receipt of Rs.50,500/- as full and final claim, so, he is estopped from filing he complaint and claim more amount. The amount as assessed by second surveyor engaged by the opposite party has rightly and legally been paid to the complainant and he is not entitled to any further amount. As damage or loss was to the machinery and not to the finished or unfinished goods or raw material stock, which only was insured and not machinery and plant. Surveyor had taken all documents in consideration and arrived at just conclusion on the basis of the material to assess the total loss to the insured goods of the complainant. Resultantly, complaint deserves dismissal.

9. We have considered rival contention of the parties and gone through the record.

10. Be stated that opposite party after engaging surveyor paid Rs.50,500/- to the complainant out of his two policies of Rs.13,00,000/-. Though the complainant had sought in the claim form, claim of more than Rs.4,50,000/- qua insured goods destroyed by fire. We make it clear outrightly that both the surveyors engaged by the complainant have not at all disputed or denied breaking out of fire in the premises of the complainant, damaging insured goods. The question is to what extent damage to the insured goods of the complainant was caused.

11. After lodging of the insurance claim with the opposite party, they engaged M/s Kapoor & Company surveyor & Loss Assessor who submitted the report dated 27.2.1999 Ex.R.1. After inspecting the premises of the complainant and physically verifying the stock, going through stock register, documents and vouchers, found that stock worth Rs.14,36,360/- was lying safe in the factory, after fire. Had assessed loss of Rs. 62,050/- to the insured goods of the complainant. But by applying average clause assessed, total loss of Rs.50,000/-. This amount of Rs.50,500/- was not directly paid by the opposite party to the complainant. Rather, they deposited the same in the bank account of the complainant and obtained receipt from the Bank Manager qua such payment. Thus, in such circumstances, food for thought is whether the payment by depositing compensation in the bank account of the complainant would amount to payment to the complainant.

12. Such like matter, whether payment made to the bank behind the back of the insured is a payment, came to be considered by the Hon’ble National Commission in case reported in II (1999) CPJ 34 (NC) titled as Branch Manager, New India Assurance Company Limited. Vs. M/s Vimal Through its Proprietor, Vikramaditya Pal. In that case, it was held that payment made to the bank by the insurance company would not amount to payment of the insurance claim as full and final settlement. Similar is the situation in the instant case.

13. The next document relied by the opposite party that complainant received Rs.50,500/- as full and final settlement of the claim is the receipt Ex.R.4 executed by the complainant in favour of the opposite party. But rightly contended by ld. counsel for the complainant that his client was made to sign blank form/papers by the opposite party which converted into receipt Ex.R.4 as full and final receipt of compensation from the opposite party. This receipt is dated 27.1.1999 vide which complainant received Rs.50,500/- as full and final payment of this claim from the opposite party. How, on 27.1.1999 opposite party was able to assess this amount and obtain receipt from the complainant, we are totally baffled and unable to decide. Because, opposite party had engaged M/s Kapoor & Company Surveyor & loss Assessor who submitted report dated 27.2.1999. It was in that report that a sum of Rs.50,500/- was held payable by the Insurance Company to the complainant being loss to the damaged goods on account of fire in his premises. The report is dated 27.2.1999. Whereas receipt Ex.R.4 is dated 27.1.1999.

It means, it was obtained one month earlier to submission of assessment report by surveyor of the opposite party. It leads us with confident conclusion that this document Ex.R.4 stands fabricated by the opposite party and contention of the complainant appears right that his signatures were obtained on blank form by the opposite party. It appears that this blank form Ex.R.4 containing signatures of the complainant was converted into receipt later on by the opposite party. Because, on 27.1.1999, report of the surveyor had not seen the light of the day, which took birth on 27.2.1999 i.e. after one month of execution of the receipt. Therefore, this acceptance Ex.R.4 can not be read against the complainant nor we can conclude that he accordingly stand prohibited and estopped from filing the present complaint.

14. Hon’ble Supreme Court in case United India Insurance Vs. Ajmer Singh Cotton & General Mills & ors. reported in II 91999) CPJ 10 (SC) has held that mere execution of the discharge voucher would not deprive a consumer from preferring the claim with respect to deficiency in service. In the instant case also receipt qua discharge voucher was obtained by way of fraud from the complainant so is of no consequence.

15. Where signatures of the insured were taken on blank papers, it was held by Hon’ble Haryana State Consumer Disputes Redressal Commission, Panchkula in case United India insurance Co. ltd. and another Vs. Varinder and Narender reported in 2007 (1) CPC, 341 , that it would not amount to consent for settlement of the claim.

16. We would not be doing justice, in case we fail to refer second report of the surveyor Ex.R.5 of M/s Consolidated Surveyors. No doubt, second surveyor was engaged by the opposite party after this Forum intervened in the matter. But suffice to say that second surveyor submitted report Ex.R.5 dated 16.11.2000. Though damage due to fire was caused on 28.5.1998. He consequently referred the record which was scanned by M/s Kapoor & Company , then consulted surveyor and also concluded that loss of Rs.50,489.85p was payable to the insured. As he took figures from earlier report of M/s Kapoor & Company, so, his report is of no consequence and in our view was mere exercise in fertility.

17. Now adverting to the actual position, whether the complainant is able to prove the loss suffered on account of fire. Conclusion of surveyor M/s Kapoor & Company that goods worth Rs. 14,36,360/- were shown intact after fire appears to be correct. As per report Ex.C.7 of the Chartered Accountant M/s Rajneesh Jain & Company of the firm of the complainant, as on 27.5.1998 closing stock was worth Rs.14,91,827/-. Apparent to note that fire took place on 28.5.1998. On proceeding day of the fire, the stock worth Rs.14,91,827/- was in the godown of the complainant. Therefore, the loss assessed by the surveyor M/s Kapoor & Company to the tune of Rs.62,050/- appears to be justified and correct. But he acted wrongly and illegally by applying average clause for reducing the actual loss to Rs.50,500/-. In our view, average clause was not applicable to the goods in this case. As insurance of the goods was worth Rs.13,00,000/- and insurance claim was for Rs.4,50,000/-. Consequently, average clause could not have been made applicable as the loss assessed was less than the sum assured.

18. For coming to such conclusion, we stand fortified from the findings of the Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in case Sanjeev Sood Vs. Oriental Insurance Co. Ltd. & Anr. reported in III (1998) CPJ 671. In that case surveyor had also applied average clause and reduced the amount. Loss assessed was less than the sum assured. Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla held that in such cases, where the loss assessed was less than the sum assured, average clause has no application.

19. Consequently, if we take out average clause as applied by M/s Kapoor & Company, then total loss suffered by the insured goods comes to Rs. 62,050/- only. To this amount, complainant certainly would be entitled to receive from the opposite party under the Insurance Policies.

20. Further on behalf of the complainant, argued that he has suffered loss more than Rs.4,50,000/- and this can be verified from the photographs Ex.C22 to C.34 placed on record as taken by the surveyor of the opposite party. However, photographs would not help us to infer or conclude to what extent damage suffered to the insured goods of the complainant. Rather surveyor who had physically verified the stock, seen situation with his own eyes on the next day of the fire, would be relevant to be considered for assessing damage suffered by the complainant.

21. In these circumstances we feel that opposite party has not rendered proper services to the complainant by not paying the actual loss of Rs.62,050/- to the complainant, to which he is entitled.

22. Therefore, we allow this complaint and as a result thereof direct opposite party to pay under the insurance policies loss of Rs.62,050/- minus Rs.50,500/-(already paid) =Rs.11,550/- along with interest @9% per annum from the date of complaint till payment and for deficiency in service ordered to pay compensation of Rs.25,000/- (Rs. Twenty Five Thousands only) and litigation expenses of Rs.5000/-(Rs. Five Thousands only). Compliance of the order be made within one month of the receipt of copy of the order, which be made available to the parties free of costs.

1- Neelam Rani aged 45 years, w/o Sh. Inderjit Singh;

2- Inderjit Singh aged about 50 years, s/o Sh. Amritsaria Ram;



Both Rs/o of H.No.7278, New Moti Nagar, Gali No.6, Ludhiana. …..Complainants.

Versus



The National Insurance Company Limited, Kochhar Market, Ludhiana,

through its Manager.

…..Opposite party.


O R D E R

T.N. VAIDYA, PRESIDENT:



1- Accidental damage calim to the vehicle of the complainant, bearing no.PB08-AN-8339, insured with opposite party vide policy no.404005/31/07/6100 002917 dated 24.9.2007 and valid upto 23.9.2008, was repudiated by opposite party, on ground that Sh. Rakesh Kumar owner of vehicle, had no insurable interest in the vehicle, as policy stood in the name of previous owner of the vehicle. The complaint is instituted by parents of Sh. Rakesh Kumar, who had purchased the car and got it transferred in his name. The car met with an accident on 25.4.2008 qua which FIR no.110 dated 22.4.2008 was registered in P.S. Focal Point, Ludhiana. In the accident, owner of the car, Sh. Rakesh Kumar died and the car was totally damaged. Claim under the policy was lodged by complainants, being legal heirs, furnished all necessary documents along with estimate of repairs. But opposite party wrong and illegally vide letter dated 24.11.2008, repudiated the claim. It is claimed by the complainant that u/s 157 of Motor Vehicle Act, 1988, transfer of insurance in favour of their son Sh. Rakesh Kumar, was automatic and by repudiating the claim, opposite party acted illegally. Hence, this complaint u/s 12 of the Consumer Protection Act, 1986, for direction to opposite party to settle the claim and pay Rs.3 lacs compensation for loss and damages.

2- Opposite party in reply claimed that complaint is barred u/s 26 of the Consumer Protection Act, the Fora has no jurisdiction to try the same, as there is no deficiency in service on their part. However, it has been admitted that Sh. Rakesh Kumar after purchase of the car, got RC transferred in his name. At that time, car was insured with them and stood in the name of previous owner Sh. Ranjit Singh. This insurance was never got transferred by Sh. Rakesh Kumar in his favour. As such, Sh. Rakesh Kumar had no insurable interest in the vehicle. They denied that car met with an accident on 25.4.2008 and was completely damaged. Lodging of claim by the complainant, is conceded, but denied that estimate of Rs.2,96,568/- for repair of the car, was submitted. The claim has rightly and legally been repudiated, in accordance with law. Deemed transfer of the insurance u/s 157 of the Motor Vehicle Act, is applicable to third party loss and not to loss of the owner.

3- Both parties adduced evidence in support of their respective claims and stood heard through their counsels.

4- The only dispute in this case is of legal nature whether insurance is deemed to be transferred in favour of purchaser of the vehicle, u/s 157 of the Motor Vehicle Act, 1988 or such deemed transfer is qua loss of third party.

5- Before we come to discuss aforesaid legal controversy, may highlight undisputed aspects of the case. Vehicle no.PB08-AN-8338 was owned by Sh. Ranjit Singh and Sh. Rakesh Kumar son of the complainant had purchased it. In RC (Ex.R10) of the vehicle, purchaser Sh. Rakesh Kumar was entered owner. At the time of purchase by Sh. Rakesh Kumar, the vehicle was insured with the opposite party, vide policy Ex.R13, which stood in the name of Sh. Ranjit Singh. There was accident of this vehicle on 25.4.2008 and next day on 26.4.2008, owner Sh. Rakesh Kumar, who was driving the vehicle, died in the accident. After his death, claim was lodged under insurance policy by the complainants being legal heirs and parents of the deceased and the same stood repudiated, vide letter Ex.R1 dated 24.11.2008 of the opposite party, on ground that Sh. Rakesh Kumar had no insurable interest in the vehicle at the time of accident.

6- Opposite party in support of contention that there was no insurable interest in favour of Sh. Rakesh Kumar purchaser of the vehicle, referred few decisions reported in Madan Singh Vs United India Insurance Co. Ltd. & Anr. I(2009)CPJ-158(NC); New India Assurance Co. Ltd. Vs Jai Pal II(2009)CPJ-491(UT State Commission, Chandigarh); New India Assurance Co. Ltd. Vs Dattaraya Shanker Buva(Since deceased) through his LRs & Ors. I(2009)CPJ-568(Maharashtra State Commission); New India Assurance Co. Ltd. Vs Sant Ram Chauhan I(2006)CPJ-478(HP State Commission); Om Parkash Sharma Vs National Insurance Co. Ltd. & Ors. IV(2008)CPJ-65(NC) and Mandeep Singh Vs National Ins. Co. Ltd. & Anr. I(2007)CPJ-245(Pb. State Commission).

7- With due respect to all the authorities in preceding para, we venture to record that they have no application to the facts of the case in hand. As in all those authorities, circular of General Insurance Companies was not referred or considered. Be it stated that Insurance Companies had issued India Motor Tariff Regulation GR-10 in 1994 U/s 157 of the Motor Vehicles Act, 1988. By such regulation, transfer of insurance policy was made automatic on the transfer of ownership of the vehicle. Such regulations were considered by the Hon’ble National Commission in Narayan Singh Vs New India Assurance Company Ltd. IV(2007)CPJ-289(NC).

8- Relying on this authority of the Hon’ble National Commission, Hon’ble Punjab State Commission in Kulwant Singh Vs United India Insurance Co. Ltd. & Anr. II(2009)CPJ-213(Punjab State Commission), has also laid that in view of India Motor Tariff Regulations GR-10, insurance of the vehicle stands automatically transferred in the name of purchaser. In view of such regulation and the law, it is apparent that deceased Sh. Rakesh Kumar had insurable interest in the vehicle. Rejection of the claim on the ground that Sh. Rakesh Kumar had no insurable interest, is illegal, contrary to Regulations GR-10, governing the subject.

9- It is consequently, apparent that opposite party are guilty of mis-conduct, by repudiating the claim on untenable ground, by ignoring mandatory regulations issued by the Insurance Companies U/s 157 of the Motor Vehicle Act, 1988. So, means insurance of the vehicle in favour of Sh. Rakesh Kumar stood automatically transferred. So, complainants being his legal heirs would be entitled for loss of the vehicle.

10- As a result of the discussions, complaint allowed and consequently, we direct opposite party to settle insurance claim of the insured car of son of the complainants, in terms of insurance policy Ex.R13, within 60 days of receipt of copy of this order and pay the damage amount to the complainants, in conformity with the insurance policy. For thrusting this litigation on complainants, they are also ordered to pay compensation of Rs.5000/- and litigation costs of Rs.2000/-.

Gone through judgement of case M.Naseer VS National Insurance Company Ltd. in page 5 regarding insurable interest. Please give me the details of the case including case number, the forum which pronounced the judgement etc.
Please mail me at the earliest in the following email id- juvairianv@gmail.com

S.C. CASE NO.: FA/2009/274 DATE: 17.11.2009



DATE OF FILING: -27.07.2009



APPELLANT : National Insurance Company Limited,

3, Middleton Street, Kolkata-700 071, &

Regional Office CRO-I National Insurance Building,

5th Floor, 8, India Exchange Place,

Kokata-700 001 & at –

Divisional Office IX (Gate no-4),

6th Floor, Poddar Court, 18, Rabindra Sarani,

Kolkata-700 001.



RESPONDENT : Dinabandhu Majhi, Vill & P.O.- Kuldanga,

(Via Andul Mouri), Dist-Howrah-711 302.



BEFORE: HON’BLE JUSTICE : Sri. Aloke Chakrabarti, PRESIDENT.

MEMBER : Sri. A.K. Ray.

MEMBER : Smt. Silpi Majumder.



FOR THE APPELLANT : Sri. M.P. Chakraborty, Advocate.

FOR THE RESPONDENT : In Person.





-ORDER-



S. Majumder, Member.



This appeal has been filed by the OP-Appellant being aggrieved by the judgment passed by the District Forum, Kolkata, Unit-II, on 13.04.2009, in the case no-196/2007, wherein the Forum below allowing the complaint on contest without cost has directed the OP-1 to reimburse the claim of the Complainant up to Rs.1,00,000/- as per the insurance coverage of the policy and also to pay a compensation of Rs.25,000/- to the Complainant for causing harassment, mental agony and within one month from the date of the judgment, failing which the entire sum of insurance coverage and compensation would fetch an interest @ 12% p.a. from the date of filing the complaint till realization.



The facts of the case of the Complainant-Respondent in a nutshell are that he purchased a hospitalization and domiciliary hospitalization benefit policy from the OP in 2004, which was renewed annually. The said policy was valid from 13.09.2004 to 12.09.2005 for the Complainant, his spouse and his son and the assured sum was of Rs.1,00,000/- each. The Complainant feeling chest pain in the middle of 2005 called on a cardiologist for medical examination and advice. As per the advice of the said doctor he underwent comprehensive heart check-up and ECG was done accordingly on 14.06.2005 at Rabindranath Tagore International Institute of Cardiac Sciences, Kolkata.

Thereafter coronary angiogram was conducted at the same institute on 28.06.2005 and the Complainant was advised to go for angioplasty and he got himself admitted at the said Hospital on 08.07.2005. Angioplasty (PTCA with LAP) was done and he was discharged from the Hospital on 10.07.2005. The Complainant informed the OP about his treatment in due course of time and he incurred an expenditure of Rs.1,93,750/- and submitted his claim form on 18.07.2005 along with all original documents which was duly received by the OP. The Complainant alleged that he pursued the matter with the OP for settlement of his claim time and again, but to no effect. Thereafter he received a letter from the OP-2 that his claim had been repudiated on the ground that the present hospitalization was for the management of an ailment, which is related to a pre-existing condition as per opinion of the medical team of the OP. The Complainant being a doctor by profession disputed the said repudiation of claim. He mentioned that argument for pre-existing disease, as put forward by the OP is vague and meaningless. The Complainant has submitted that repudiation of his genuine claim of reimbursement on the pretext of pre-existing disease is a deficiency in service on the part of the OP. The Complainant filed the complaint before the Forum below praying for direction upon the OP for reimbursement of his admissible claim of Rs.1,00,000/-, compensation of Rs.25,000/-for prolonged harassment and mental agony and Rs.1,000/- towards litigation cost.



The Appellant-OP has mentioned in the memorandum of appeal that CAG revealed double vessels coronary artery disease, which requires considerable time to develop, and the Family Health Plan Limited repudiated the claim on 01.08.2005 on the ground that the present hospitalization was for the management of an ailment, which is related to a pre-existing condition. It has been contended that the Complainant-Respondent had no locus-standi to initiate the complaint proceeding since there had been concealment of material facts and is not entitled to get any relief as the contract of insurance is of utmost good faith and the insured is bound to disclose truthfully and correctly the state of his health and suppression renders the contract of insurance illegal and void.

It has been stated by the Appellant the matter was referred to the Senior Medical Officer, Family Health Plan Limited for the second opinion, who after thorough scrutiny confirmed the earlier opinion of pre-existing disease and accordingly based on the said opinion the Appellant has repudiated the claim as not admissible under the clause 4.1 of the policy condition on the ground of pre-existing disease. The Appellant has further argued that the claim was repudiate after due application of mind and for this reason there was no deficiency in service on the part of the Appellant. According to the Appellant the judgment passed by the Forum below is erroneous, illegal and liable to be set aside and it has prayed for allowing of the present appeal.



On careful consideration of the record and BNA filed by the Appellant it is seen by me that it is an admitted fact that the present Respondent purchased mediclaim policy from the OP subject of payment appropriate premium for hospitalization and domiciliary hospitalization. It is also an admitted position that the Respondent, his spouse and his son were covered under the said policy and the assured sum was of Rs.1,00,000/- each and the policy was valid from 13.09.2004 to 12.09.2005. During the validity of the policy the Respondent was admitted at R.N. Tagore International Institute of Cardiac Sciences on 08.07.2005 as per advice of a doctor while he felt chest pain. It is true that as per advice of the said doctor several tests were done and after perusal of the said reports the Respondent-Complainant was advised for admission. The Respondent incurred expenditure of Rs.1,93,750/- towards his treatment and the claim has been lodged to the OP on 18.007.2005 along with all original documents, which was duly received by the OP and the OP-Appellant has repudiated his claim by issuing a letter-dated 01.08.2005 on the ground of pre-existing disease.

The Appellant has claimed that the claim has been rightly repudiated and in good faith after due application of mind and according to the OP-Appellant such repudiation cannot be termed as deficiency in service and in this respect the Appellant has referred to a judgment passed by the Hon’ble National Commission reported in 1997 (1) CPR 40 NCDRC, wherein it has been held that if the decision of repudiation of claim by the Insurance Company in good faith is based on materials collected pursuant to enquiries, there is no deficiency in service on the part of the Insurance Company. But I have noticed that the Appellant did not disclose the detail of the enquires made and materials collected to come to the conclusion that hospitalization was made for management of pre-existing disease. Before the Forum below it has been submitted by the OP that as per opinion of the medical team the medicines prescribed are generally prescribed for pre-existing diseases, no excerpts from any standard medical text book has been filed in support of their demand. No evidence has been adduced in support their contention that the disease of the Complainant was a pre-existing one. The Appellant has failed to annex any of such prescription for the said ailment before being admitted to the R.N. Tagore Hospital. In my opinion casual mentioning by the employee-doctor that such medicines are prescribed for management of pre-existing disease is not sufficient to repudiate a claim on the ground of pre-existing disease.

It is the settled law that if the Complainant had definite knowledge of his disease and he suppressed the same in the proposal form under the column of state of health intentionally or he did not disclose anything towards his treatment undertaken by him before the purchasing of the said medi-claim policy, that should be the guiding factor for repudiation of the claim on the ground of pre-existing disease and in that case the Complainant was under obligation by filing evidence that the disease was not a pre-existing one. But in the instant case the allegation has been made on behalf of the OP that as the insured suppressed his disease at the time of taking the policy, he is not liable to get any relief from the OP and the OP has rightly repudiated his claim on the ground of pre-existing disease. In this respect I am of the view that the onus lies upon the shoulder of the OP to prove their allegation by filing cogent evidence, but the OP has failed to file the same and hence oral allegation has no legs to stand upon. The OP has also failed to substantiate its ground of rejection of the claim by submission of authentic documents.



Going by the foregoing discussion I am of the opinion that the judgment passed by the Ld. District Forum is liable to be sustained, as it does not suffer from any infirmity. Hence, it is ordered that the appeal be dismissed on contest, however considering the facts and circumstances there is no order as to cost and the Forum’s judgment is hereby affirmed. The office is directed to send down the copy of this judgment to the Ld. Forum below and issue the same upon the recorded Advocates/Parties free of cost forthwith.

Appeal no. FA-8/854



(Appeal against the order dated 08.05.2008 passed by District Forum, New Delhi in complaint case no.1103/2006)

National Insurance Co. Ltd.,

10, Plot nO. 101-106,

BMC House, Connaught Place,

New delhi.

…..Appellant/O.P.

through

Sh. Pankaj Seth, Advocate
VS
Shri Inderjeet Pandey,

Son of Shri T.N. Pandey,

R/o C-499, LIG Flats,

East of Loni Road, Shahdara,

Delhi-32.
……Respondent/complainant


CORAM



Justice Barkat Ali Zaidi, President.

M.L. Sahni, Member



1. Whether reporters of local newspaper be allowed to see the

judgment?



2. To be referred to the reporter or not?

M.L. SAHNI, MEMBER



1. Brief facts of the case are that the Respondent filed a complaint before the Ld. District Forum, New Delhi , inter alia alleging that his Maruti Alto Car no. DL-5-CC-8275 insured with the Appellant for a sum of Rs. 2,25,000/- met with an accident on 21.08.2006 and was damaged. An insurance claim was lodged with the appellant but the same was declined by the Insurance Company on the ground that there was no policy in force in respect of the vehicle in question as the premium cheque issued by the respondent had been dishonoured.

2. The complaint was contested by the Appellant, reiterating that vehicle in question was not insured with it in the name of the respondent as the premium cheque was dishonoured and due intimation regarding dishonour of the cheque was duly communicated, to the Respondent/Complainant.

3. The Ld. District Forum, vide order dated 08.05.2008 allowed the complaint of the respondent and directed the appellant to pay full insurance amount of Rs. 2,25,000/- and also to pay a sum of Rs. 1,00,000/- towards compensation for causing mental agony and harassment together with a sum of Rs. 20,000/- as cost of litigation.

4. This order has been impugned in appeal before us.

5. We have heard the Ld. Counsel for the parties and have gone through the material on record.

6. In the grounds of appeal , it has been submitted that the impugned order has been passed on the assumption that because the appellant issued a letter dated 2.01.2007 seeking consent of the respondent for settling the claim at Rs. 94,500/- and asking him to sign the satisfaction voucher, declining defence of the Insurance Company that there was no policy in force in favour of the respondent. They contended that, in the absence of any contract of insurance, such a letter dated 21.01.2007 did not create a valid contract of insurance in respect to the vehicle in question in view of specific provision of section 64 VB of the Insurance Act; that once the premium cheque was dishonoured, the contract of insurance became void-ab-initio and therefore, there was no valid contract of insurance in respect of the vehicle in question, between the appellant and the respondent, at the time of alleged accident of the said vehicle; that the premium cheque issued by the respondent was presented by the appellant for encashment during the validity of the period of cheque, and therefore, after the said premium cheque was returned/ dishonoured by the bankers of the respondent, the contract of insurance became void-ab-initio.

7. Conversely, the Respondent/complainant contends that the appellant after accepting cheque of Rs. 8,401/- bearing No. 015986 dated 07.07.2006 renewed policy for a period of 1 year commencing from 08.07.2006 to 07.07.2007. The value of the car on the date of renewal was assessed by the appellant company as Rs. 2,25,000/- ; that car met with an accident and got heavily damaged on 21.08.2006. The intimation of the accident was duly given to the appellant and on the instruction of the appellant, respondent/complainant with the help of the crane sent his damaged car to M/s T.R. Sawhney Motors Pvt. Ltd. ; that appellant after receiving the intimation about the accident of the respondent/complainant’s car appointed surveyor , who after inspecting the vehicle gave his report that car of the respondent/complainant bearing registration No. DL-5-CC-8275 was totally damaged and could not be repaired ; that Respondent/Complainant received letter dated 23.10.2007 from the Appellant stating that the cheque issued by the respondent/complainant for the renewal of the policy had been dishonoured on 07.10.2006 for reason, “ insufficient funds ” and therefore, the policy had been cancelled ; that due to omission and negligence on the part of the appellant the cheque issued by the brother of the respondent/complainant for the renewal of the insurance policy of the car of the respondent/complainant was dishonoured because the same had been presented for collection by the appellant after 3 months of its handing over by the respondent/complainant to the appellant i.e on 07.07.2006. The car of the Respondent /Complainant met with an accident on 21.08.2006 i.e. 1 ½ month of its renewal and brother of the respondent / complainant who issued the cheque bearing no. 015986 dated 07.07.2006 for a sum of Rs. 8,401/- had sufficient balance in his account upto 23.08.2006 to honour the cheque in question, as is evident from perusal of statement of account of the brother of respondent/complainant for the period 07.07.2006 to 23.10.2006 ; that, cheque in question had been issued prior to the date of accident and on the date of accident policy was very much in force and valid for which the appellant are liable to discharge the claim of the respondent/complainant ; their liability has to be counted from the date of accident and not from the date of dishonour of cheque which happened subsequently much beyond the date of accident.

8. Before delving into the rival contentions of the parties, it shall be pertinent to remind ourselves of the order passed by this Commission on 24.09.2008, while admitting the appeal. It is reproduced as below :

“ Inspite of having observed that the appellant company had informed the respondent about the dishonour of cheque on 23.10.2006 towards the renewal of policy, the District Forum has directed the appellant company to pay full insurance amount and Rs. 1.00 Lac as compensation for mental agony. The appeal is admitted as the order, on the face of it, appears to be not only harsh but irrational, whimsical and fanciful without spelling any criteria as to the mental agony and harassment and also without having adhered to the observations made by this Commission in case after case that wherever there is a case of total loss by way of theft or accident, the market value of the vehicle has to be assessed by way of depreciated value of 5% or 10% of the insured value of the vehicle in view of the terms of the contract and not the full insurance amount. By no stretch of imagination the insured value of the vehicle can be termed as the market value which has already become one to six months old. Value of the vehicle gets depreciated the moment it is out from the Showroom. There is a clear distinction between the insured value of the vehicle and the market value at the relevant time, which should always, be kept in mind by the District Forum” (Stress supplied).





9. Now we proceed with the case of the parties.

10. There is no denying the fact that the car in question met with accident on 21.08.2006 and due intimation thereof was given to the Appellant, who appointed surveyor and it was reported that the vehicle was beyond repair.

11. Denial of the liability by the Appellant is solely on the ground that the cheque issued as premium for renewal of the Insurance policy, was dishonoured , therefore, the contract of insurance became void-ab-initio. They , however, do not deny that cheque was presented by them about three months after its issue and the accident took place much prior to the date of presentation of the cheque. For their own mistake or negligence , they cannot blame the complainant. The statement of Account (Annexure B) clearly shows that during the period between 7.7.2006 to 23.10.2006, there was sufficient balance in the account against which cheque of premium was drawn.

12. In the light of these facts on record, the impugned order cannot be faulted with. We fully agree with the Ld. District Forum, in holding the Appellant deficient-in-service, in refusing to settle the claim of the Respondent/complainant unjustly. However, in view of observations as made on 24.09.2008 we are in total disagreement with the impugned order. In that respect it is liable to be modified. Hence, partly allowing the appeal, we modify the impugned order as follows :

1. The Appellant shall pay to the Respondent /Complainant a sum of Rs. 2,00,000/- being the depreciated value presuming that the vehicle when met with accident, was more than one year old, because neither of the parties have given any date of purchase of the vehicle, towards insurance claim minus Rs. 8,401/- i.e. amount of bounced cheque issued for premium subject to the Respondent /complainant getting the car transferred in the name of the Appellant. Respondent/complainant shall also complete all formalities required by the Transport Deptt. for transfer.

2. The Appellant shall pay Rs. 25,000/- as compensation in lump sum for loss of interest on insurance amount payable, mental agony , harassment, etc. and Rs. 5,000/- as cost of litigation.

3. It is further provided that the Appellant shall be entitled to take possession of the vehicle in question from the workshop of M/s T.R. Sawhney P. Ltd.



13. FDR / Bank guarantee, if any, furnished by the appellant be returned to the appellant forthwith after completion of due formalities.

14. A copy of this order as per statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and , thereafter , file be consigned to Record Room.

Case No. FA-09/754

(Arising from the order dated 30-06-2009 passed in complaint case No. CC-290/07 by the District Consumer Redressal Forum – VI, K.G. Marg, New Delhi)





THE NATIONAL INSURANCE CO. LTD - APPELLANT

New Delhi

(A company incorporated under the Company’s Act with its Registered Office at Kolkota and Regional office No. 2 at

2/E9, Jhandewalan Extn,

New Delhi – 55
Versus





SHRI JOGINDER SINGH - RESPONDENT

S/ Shri Jagat Singh,

R/O Village & P.O. Tikri Kalan,

Delhi

CORAM :
JUSTICE BARKAT ALI ZAIDI - President

SHRI M.L. SAHNI - Member



1. Whether reporters of local newspapers be allowed to see the judgment?

2. To be referred to the Reporter or not?





SHRI M.L. SAHNI (ORAL)



ORDER



1. M/s National Insurance Co. Ltd. (OP- before the District Forum hereinafter referred to as the appellant) have filed this appeal against the order dated 30-06-2009 passed by the District Forum, New Delhi directing them to pay to the respondent (complainant before the District Forum) Rs. 2,64,000/- on furnishing Indemnity Bond with requisite forms duly filled in for the transfer of the insured vehicle in the name of the appellant/OP and undertaking of ‘NO Claim’ on the said vehicle as and when it is traced out. Compensation of Rs. 90,000/- for mental agony and harassment and Rs. 10,000/- as cost of litigation have also been awarded in favour of the respondent/ complainant.



2. Facts giving rise to this appeal precisely stated are that the appellant/OP had issued a Passengers’ Carrying Commercial Vehicle Policy ’B’ Package bearing No. 361800/31/05/6300009201 covering vehicle bearing registration no. HR-63-T-4530 (Tata Indica) for the period 22-12-2005 to 21-12-2006 against Insured Declared Value (IDV) of Rs. 2,64,000/- to the Respondent/ complainant.



3. Vide letter dated 16-10-2006 Respondent complainant intimated about the theft of insured vehicle bearing Registration No. HR-63-T-4530 on 10-09-2006 while it was parked outside the residence of Shri Surya Prakash, S/o Shri Mohar Singh located at House No. 132, Pocket-7, Sector -24 Rohini, Delhi. Shri Surya Parkash happens to be a friend of Respondent/complainant, the registered owner of the vehicle.

4. The appellant/OP repudiated the claim of the Respondent/complainant vide its letter dated 17-10-2006 which was returned “undelivered”. The same was then delivered to the respondent/complainant by hand on 13-12-2006. Ground stated by the Appellant/OP was that intimation about the theft of insured vehicle was given late by 39 days. As per terms and conditions of the insurance policy it was required to be given immediately.

5. Respondent/complainant vide complaint no. CC/290/07 claimed payment of Rs. 2,64,000/- being the insured amount of the car besides a sum of Rs. 50,000/- towards damages and litigation charges alongwith interest @ 18% p.a. from the date of theft of the car till realization.

6. Appellant/OP contested the complaint taking the plea that the respondent/complainant informed the appellant/OP about the theft of insured vehicle after a lapse of 26 days from the date of theft of the insured vehicle. Respondent/ complainant lodged FIR No. 1593 with the Police Station at Sultanpuri, North West Delhi on 05-10-2006, though the theft of insured vehicle had taken place on 10-09-2006.



7. We have heard the Ld. Counsel for the appellant/OP at the admission stage at length. We have thoughtfully examined the record annexed with the appeal petition. We have also carefully perused the impugned order.

8. The Ld. Counsel for the appellant has submitted that Ld. Forum below overlooked the fact that the respondent/complainant informed the appellant/OP about the theft of insured vehicle after a lapse of 37 days from the date of theft of insured vehicle which is a violation of terms and conditions of the policy which envisage “Immediate” notice of any such claim that has arisen under the insurance policy issued to the respondent/complainant by the appellant/OP that the friend of the respondent/complainant in whose possession the insured vehicle was at the material time deliberately and knowingly lodged the FIR No. 1593 relating to theft of insured vehicle on 05-10-2006,had categorically stated in the FIR that since the vehicle was financed, so they wanted no investigation in the matter.



9. Ld. Counsel for appellant/OP further contended that had the respondent/ complainant intimated the appellant/OP immediately, steps in appointing an investigator to enquire into the authenticity of the circumstances under which the theft had taken place and at the same time could have coordinated with the local police for its recovery to minimize the loss.



10. This contention is without any merit because the Investigator of Appellant cannot overtake the investigation in a criminal case like theft etc.



11. While allowing the complaint, the Ld. District Forum observed that it is admitted fact that FIR was registered on 05-10-06 by the Police though they were supposed to do so on the basis of DD no.9 dated 10-09-2006 immediately. It was not within the control of the complainant to register the formal FIR. We fully agree with this argument. We also find no reason to disbelieve the Respondent/Complainant that he visited office of OP for giving information of the theft on 10-09-06 as sworn by him in his affidavit filed in evidence before the Forum. The complainant was told to come with copy of FIR. He then again visited the Office of OP only after copy of FIR was delivered to him. Thus, there is no delay in giving information to the OP/appellant. As is evident from the DD entry dated 10-09-2006, the respondent/complainant had informed the police immediately but the Police registered the FIR only on 05-10-2006. Later on untraced report was also given by the police.

12. Having considered the facts and circumstances of the case, as discussed above, we find ourselves in full agreement with the Ld. District Forum that since there is no delay in informing the police of the theft of insured vehicle to justify the repudiation of the claim of the respondent/complainant, impugned order cannot be faulted. There appears to us no infirmity in the impugned order warranting interference by this Commission. Hence appeal being meritless is dismissed in limine at the admission stage itself.



13. Bank Guarantee/FDR, if any, be returned to the appellant after completion of due formalities.



14. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.

15. Announced on 25th November 2009.

(Arising from the order dated 03-11-2008 passed in complaint case No. 460/07 by the District Consumer Redressal Forum – III, New Delhi).



Mrs KAMLESH KHATTAR -Appellant

W/O late G.K. Khattar,

R/O WZ-91, Gali No.13,

Ramgarh Colony,

Opp. Kirti Nagar,

New Delhi – 110015



Versus



1. NEW INDIA ASSURANCE COL. LTD.,

Regional office at : Delhi Regional Office-I

Jeevan Bharati Buildingl Tower-II, Level – 5,

124, Connaught Circus, New Delhi – 110001



Divisional Office at

Divisional Office at New India Centre-II

17-A , Cooperage Road, Mumbai – 39



2. MANAGER, MEDI ASSIST INIA (P) LTD.

No. 1797, Annaporna 10 TH. Main,

4th Block Jayanagar, Bangalore – 560011 -Respondents





CORAM :
JUSTICE BARKAT ALI ZAIDI - President

SHRI M.L. SAHNI - Member



1. Whether reporters of local newspapers be allowed to see the judgment?

2. To be referred to the Reporter or not?



JUSTICE BARKAT ALI ZAIDI (ORAL)



ORDER



1. Brief facts of the case are that the deceased Shri Gopal Krishan Khattar, husband of the complainant an LIC agent held a mediclaim insurance scheme under policy dated 01-09-2004 issued by appellant OP No. 1 New India Assurance Co. Ltd. and a claim arising out of it was supposed to be settled by OP No.2. According to the terms in the policy, pre existing diseases/injuries were not covered. Shri G.K. Khattar, died on 12-05-2005 during his treatment in Metro Hospital, Noida due to Cardio Respiratory Arrest.



2. The complainant lodged a claim for Rs. 50,000/- spent on the deceased’s treatment before the OPs, but OP No. 2 rejected the claim, saying that it could not be paid in view of the exclusion clause 4.8 given in the medicalim policy, which provides as below:

“convalescence, general debility, run-down condition or rest cure, congenital external disease or defects or anomalies, sterility, venereal diseases, intentional self injury and use of intoxicating drugs/alcohol” .



3. The complainant therefore filed a complaint before the District Consumer Forum praying that the OPs be directed to pay her a sum of Rs. 50,000/- towards the treatment expenses incurred on the deceased and Rs. 50,000/- towards compensation.



4. The OP No. 1 opposed the claim and pleaded that the claim was not payable as provided in column No. 4.8 of the policy, justifying the rejection of the claim.



5. The District Consumer Forum after scrutiny of the Transfer Summary prepared by Kukreja Hospital and Heart Centre (P) Ltd., where the deceased was earlier admitted and the Medical Certificate for the cause of the death issued by Metro Hospital, Noida, copies of which are available on record, held that from these two documents it was evident that the deceased was suffering from ‘alcohol liver disease, cirrhosis of liver, jaundice which were as a result of alcohol liver disease in consequences whereof he suffered with cardio respiratory arrest. The Forum, therefore held that the claim of the complainant fell within the exclusion clause 4.8 of the policy and dismissed the claim.



6 The complainant has, therefore come in appeal before us against the dismissal order of the complaint.



7 We have heard Shri Dharmendra Kumar, Counsel for the appellant at the preliminary stage of admission.



8. The counsel for appellant complainant pointed out as he also did before District Consumer Forum that the contention of the respondent Insurance Company that the deceased was accustomed to alcohol since it has been mentioned in his Transfer Summary issued by Kukreja Hospital and Heart Centre (P) Ltd in his diagnosis column that he suffered from A.L.D. Cirrhosis of lever cannot be sustained, because the deceased died due to cardiac arrest and that in his death certificate, death has been shown as natural. It was argued by him that cardiac arrest is a phenomenon which is unrelated to any particular disease and can happen to any person at any time. He argued that even healthy persons some time fall down and die due to heart failure.



9. These arguments cannot be sustained because there is a clear mention in the Transfer Summary and also in the medical certificate for cause of death that he died due to A.L.D. Cirrhosis of lever and which was related to alcohol. The exclusion clause 4.8 in the agreement with the Insurance Company mentions that the Insurance Company will not be liable in respect of disease caused by consumption of alcohol and that is why the claim was rejected by the District Forum.



10. The counsel for the appellant also argued that the appellant was not aware of this exclusion clause 4.8 in the terms of agreement. It is a little surprising that the counsel for the appellant did not hesitate in putting forward such a naïve argument. The deceased was himself an LIC agent – a zonal club member, and not an illiterate person and must be deemed to be aware of the contents of the agreement. The court deserves rejection out of hand.



11. The appeal has therefore no merit and is accordingly dismissed in limine.



12. Bank Guarantee/FDR, if any, be returned to the appellant after completion of due formalities.



13. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.

14. Announced on 25th November 2009.

Appeal no. FA-9/733

(Appeal against the order dated 28.04.2009 passed by District Forum , New Delhi in complaint case no 602/2006)


National Insurance Co. Ltd.,

Division No. 10,

Flat no. 101-106, N-1,

BMC House, Connaught Place,

New Delhi-1100001



Also At :-

DRO-II,

2E/9, Jhandewalan Extension,

New Delhi
…..Appellant/complainant.

Through

Sh. Pankaj Sethi, Advocate

VS



Shri Dinesh Ahuja,

S/o Shri Sant Lal Ahuja,

S-6, Sector-12, Noida,

Uttar Pardesh.

……Respondents/O.P.



CORAM



Justice Barkat Ali Zaidi, President.

M.L. Sahni, Member



1. Whether reporters of local newspaper be allowed to see the

judgment?



2. To be referred to the reporter or not?

Justice Barkat Ali Zaidi


1. The District Consumer Forum-VI , K.G. Marg, New Delhi has awarded an amount of Rs. 40,000/- against the OP in favour of complainant in complaint case no. 602/2006.

2. The appellant/OP feeling dissatisfied with the order of the District Forum has come in appeal here. Since the appeal has been filed beyond 90 days of the prescribed limitation, the appellant has filed an application for condonation of said delay alongwith an affidavit of his attorney to explain that there was reasonable cause for delay of 90 days in filing the appeal.

3. We have heard Shri Pankaj Sethi , Advocate on this condonation application.

4. The reasons for delay in filing the appeal are contained in para 4 of the application which may be reproduced below :-

“That in this case, since the Advocate has not forwarded his legal comments on the order, as per the procedure, he was requested to send his legal comments on the order passed by the Hon’ble State Commission and on the legal opinion of the Advocate for filing the appeal, immediate thereafter the concerned office of the Appellant, forwarded the papers to one of their panel Advocates at Delhi for filing the Appeal without any further delay”.

5. The provisio under section 15 of Consumer Protection Act which provides for limitation for condonation of delay in filing the appeal does not contemplate about the procedural delay. No reason has been assigned, why the legal comments were not sent in time by the counsel. It has also not been mentioned when the file was handed over to the counsel for comments, and when the counsel gave his advice for filing the appeal and after it, when the appeal was filed and the reasons behind it.

6. We therefore, do not find the delay satisfactory explained. The appeal is therefore not maintainable by the bar of limitation. The same is therefore dismissed.

7. A copy of this order as per statutory requirements be sent to the parties free of charge and also to the concerned District Forum and the file, thereafter, be consigned to Record Room.

H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA-9.

F.A. No. 78 of 2008 Decided on 10.11.2009.



Sh. Sohan Lal Verma

S/o Sh. Kewal Ram, Village Ghanahal,

P.O. Chaila, Tehsil Theog, District Shimla.

....Appellant.

Versus



National Insurance Company

Through its Divisional Manager,

Himland Hotel, Shimla.

…..Respondent.
Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting ?



For the Appellant. Mr. Bunesh Pal, Advocate



For the Respondent. Mr. Nitesh Gangta, Advocate

vice Mr. I.N.Mehta, Advocate.

ORDER
Justice Arun Kumar Goel (Retd.) President.
1. Appellant who was complainant before the District Forum below is aggrieved from the order dated 18.4.2007, passed by District Forum, Shimla in Consumer Complaint No. 230/2004. By means of impugned order complaint has been dismissed.



2. Record of the complaint file shows that vehicle bearing registration No. HP-09-1445, a Swaraj Mazda was insured under a valid policy of insurance on 18.7.2002, when it met with accident near Gadha Kufar, Tehsil and District, Shimla. According to the appellant he had intimated the respondent-Insurance Company about the accident who had got the loss assessed. Thereafter further case of the appellant is that he brought the vehicle to Shimla and got it repaired at the cost of Rs. 30,000/-. Since this amount was not released, alleging deficiency in service, complaint was filed out of which this appeal has arisen.



3. On the other hand stand of the respondent while contesting the complaint before District Forum below was that no doubt vehicle was insured in the sum of Rs. 2 lacs on the date of its accident. However, according to it the vehicle had been taken to the workshop where due to land slide etc. vehicle was further damaged resulting in total loss. Thereafter surveyor was appointed and he assessed the loss at Rs. 1,18,000/-. While allowing Complaint No. 230/2004 on 18.4.2007, titled as Sh. Sohan Lal Verma V/s National Insurance Company Ltd., the complainant was awarded compensation. Further case of the respondent was that vehicle had not been got repaird by the appellant, as claimed by him. As such if this appeal is allowed, it will tentamount to his undue enrichment, because without having got the vehicle repaired after accident of 18.7.2002 respodnent would be made to pay.



4. In this background according to Mr. Pal, learned counsel for the appellant urged that when the vehicle met with an accident on 18.7.2002, his client had got it repaired. Copies of the bills showing repairs got done by the appellant are, annexures C-7 to C-10 attached with the affidavit filed as evidence by the appellant. Therefore, according to Mr. Pal, District Forum below fell into error while dismissing the complaint vide impugned order. As such according to him the impugned order is neither supportable on evidence, nor for the reasons given in it. On the other hand Sh. Gangta prayed for upholding the impugned order. As according to him respondent is only liable to indemnify the appellant for the accident of 18.7.2002, if the vehicle was got repaired by the appellant. According to him after accident on 18.7.2002, vehicle was never got repaired. To the contrary according to him, it had been left for being repaired at the workshop where it was further damaged due to landslide and claim was settled on total loss basis.



5. In case vehicle had not been repaired as claimed by the respondent and was lying in the workshop in an accidental condition due to the accident on 18.7.2002 when it was further damaged due to landslide, the impugned order is liable to upheld. Othewise we shall have to examine the material on record and then come to the conclusion on its basis.



6. In order to succeed on its plea that the vehicle was never repaired after accident of 18.7.2002, according to us the respondent was duty bound to have placed material on record to show that the vehicle when it was totally damaged was parked at the service station, for its repair. Best person to have said something in this behalf according to us, was garage owner where it was parked after 18.7.2002 and was further damaged due to landslide. There is no such evidence produced by the respondent nor any explanation could be putforth to accept its stand, that the vehicle was not repaired, as claimed by the appellant. In case the garage owner was not willing to file affidavit in this behalf then he should have been got summoned before the Distict Forum below.





7. To the contrary there are documents on record to suggest that the vehicle was actually got repaired by the appellant from the different workshops at Dhalli as per the bills Annexures C-7 to C-10 filed in evidence with his affidavit by the appellant. These documents clearly establish that the vehicle had been actually repaired at different workshops. At this stage learned counsel for the respondent-Insurance Company stressed on the affidavit of Sh. Pratap Singh Negi, Branch Manager of the respondent, and submitted that as per documents mentioned in this affidavit, it is established beyond any shadow of doubt, that the vehicle in question was never got repaired by the appellant and infact had been lying in an accidental state and was parked at the workshop when it was further damaged due to landslide. No doubt reference is made to Annexures R-4 to R-7 but none of these documents appear to have been filed. As they were not on the complaint file. We specifically confronted learned counsel with the record of the complaint file, but he also could not point anything.



8. As already observed there is material on record to suggest that the vehicle after first accident on 18.7.2002, was got repaired by the appellant from different workshops and copies of the repair bills are Annexures C-7 to C-10. Once this conclusion is arrived at, we are of the view that this appeal deserves to be allowed.



9. No other point was urged.





10. In view of the aforesaid discussion while allowing this appeal, order passed by District Forum, Shimla in Complaint No. 230/2004, dated 18.4.2007 is set aside, and as a result of it the said complaint is allowed consequently it is directed that appellant is liable to recover from the respondent amount spent by him on the repairs, i.e Rs. 30,000/- alongwith 9% interest from the date of filing of the complaint i.e. 14.06.2004 till the date of payment/deposit whichever is earlier. Appeal is allowed in these terms leaving the parties to bear their own costs.



11. Learned counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per Rules.

FA.No.922/2007 AGAINST C.C.No.986/2005 DISTRICT FORUM-II, HYDERABAD.

Between:
M/s.S.V.Projects (Pvt) Ltd., rep. by its

Chairman & Managing Director

B.Venkata Subba Rao @ Babjee

Aged about 52 years, R/o.64/3RT,

S.R.Nagar, Hyderabad. Appellant/
Complainant

And

The National Insurance Co. Ltd., Office

Unit No.551700, Flat No.54/55,

2nd floor, 5-4-183, Twincity Market complex,

Mohamjahi Market, Hyderabad. Respondent/

Opp.party.



Counsel for the Appellant: Smt.Y.Anupama Devi



Counsel for the Respondent:M/s.S.Agasthya Sharma.



QUORUM: SMT.M.SHREESHA, MEMBER

&

SRI K.SATYANAND, MEMBER



MONDAY, THE THIRTIETH DAY OF NOVEMBER,

TWO THOUSAND NINE
(Typed to the dictation of Sri K.Satyanand, Hon’ble Member).

This is an appeal filed by the unsuccessful complainant assailing the order of the District Forum dismissing its complaint.

The complainant , a Private Limited company, claims to be the sub contractor of the original contractor by name K.V.Mohan Rao from whom this complainant secured a contract work relating to Metropolitan Transport Project (Railways)–PH II Tirumala Velachevi- Kotturpuram elevated structure etc. It is claimed that by virtue of his status of being a sub contractor, he would step into the shoes of the main contractor, K.V.Mohana Rao, for dealing with the transactions relating to the work in question. The complainant claimed to have obtained several insurance policies to cover the risk in respect of 12 skilled employees, 15 unskilled employees and 8 more skilled employees working under the control of this complainant being the sub contractor. He claimed to have taken those policies initially in the name of K.V.Mohana Rao for the period from 13-5-2003 to 10-11-2003 and 11-11-2000 to 10-2-2004. He claimed to have issued cheques towards the premium etc., but the insurance company/opposite party issued policy in the name of the complainant instead of K.V.Mohana Rao. The administrative officer of the complainant appeared to have raised this issue before the agent of the opposite party obviously for rectification. But the opposite party did not take any necessary action.

While things stood thus, on 1-3-2004 one Mahadev Biswas met with fatal accident at the work spot in Chennai. As a consequence, he succumbed to the injuries on 15-3-2004. The said fatal accident came to be reported to the Police and a FIR was also registered. On 21-5-2004 a report was sent to the Deputy Commissioner of Labour, Tenampet, regarding the fatal accident of one of the skilled workers, by name Mahadev Biswas. The Deputy Commissioner of Labour, Chennai awarded compensation amount of Rs.4,19,840/- to the said deceased employee and directed the remittance of the said amount within 30 days from the date of receipt of the order. It is submitted that on 14-7-2004 the complainant claimed to have deposited the said amount in favour of the Deputy Commissioner of Labour. Immediately thereafter the complainant claimed to have intimated the same to the opposite party making the claim in question. The opposite party by its letter dated 26-3-2004 directed the complainant to approach the Deputy Commissioner of Labour for settlement of the claim under Workmen Compensation Act and that subsequently the opposite party would reimburse the above said amount after production of the settlement copy of the award amount. The opposite party also advised the complainant to submit in the meanwhile the claim form duly filled in and signed by the competent authority along with the supportive documents. In pursuance thereof, the complainant claimed to have submitted the claim form with all relevant documents duly filled in. It is further submitted that he maintained muster roll of the workmen showing the name of the deceased, however, in the name of the original contractor, K.V.Mohana Rao Engineer and Special Class Contractor. The said muster roll was issued to the Deputy Commissioner of Labour. The opposite party directed the complainant to produce muster roll with attesting stamp of the sub contractor namely SVS Projects Private Limited. The complainant claimed to have complied with the same. Ultimately by a letter dated 31-12-2004, the opposite party intimated to the complainant stating that the subject claim was closed as no claim and further stating that the deceased person was listed in the muster roll of M/s.K.V.Mohana Rao and company and hence the complainant did not have any insurable interest over the deceased workmen. According to the complainant this repudiation was not valid. The complainant cited the overtacts of the opposite party in respect of other policies treating him as the sub contractor of K.V.Mohana Rao and therefore was wrong in treating the deceased as not its employee but the employee of K.V.Mohana Rao as it is contended that the complainant stepped into the shoes of the original contractor. It is how the present claim is sought to be enforced in favour of the complainant against the opposite party

The opposite party remained absent.

In support of its case, the complainant filed affidavit and relied upon documents marked as Exs.A1 to A11.

On a consideration of the evidence of no other than the complainant itself, the District Forum came to the conclusion that the complainant failed to show that the deceased was its employee and on the other hand it was clear thathe was on the muster roll of M/s.K.V.Mohana Rao company and as a result the complainant failed to prove his insurable interest over the deceased workman and further that there was any deficiency on the part of the opposite party.

Aggrieved by the said order, the complainant filed the present appeal reiterating that the District Forum ought to have accorded itthe status of the sub contractor of K.V.Mohana Rao and allowed it to step into the shoes of K.V.Mohana Rao for all practical purposes including to own up the deceased person as its workmen and not of K.V.Mohan Rao and Co., and allowed the claim holding that the complainant had insurable interest in respect of the risk to the deceased workmen.

Heard both sides.

The point for consideration is

1) whether the complainant could successfully prove that the deceased workman by name Mahadev was an employee of the complainant at the time of the accident in question affording the complainant insurable interest in respect of the death of the said workman by virtue of the insurance policy in force in its name.?

2. Whether there are any good grounds to interfere with the order of the District Forum?

It is crystal clear from the pleadings apart from documents that while the deceased was in the muster roll maintained by K.V.Mohan Rao, the insurance policy sought to be enforced marked as Ex.A2, is in the name of the complainant. Now the complainant seeks to link up these two irreconcilable facts to substantiate his claim by resorting to a contrivance that an employee of his original contractor, K.V.Mohan Rao & Co., is as much an employee of the complainant as well by virtue of the sub contract in the deal. This is simply absurd. The insurance company asserted in its repudiation letter, marked as Ex.A1, that the claim was untenable on this ground. There was no denying the fact that the deceased workman was in the muster rolls maintained by K.V.Mohan Rao & co., it should be remembered that while K.V.Mohan Rao & Co. is one entity, the complainant, S.V.S.Projects is another entity. These are two distinct juristic persons. Just because, the complainant happened to be the sub contractor of K.V.Mohana Rao & Co., the complainant cannot appropriate to itself the employees of K.V.Mohan Rao & Co. as its own employees and thereby claim to reap the benefits accruing on the basis of the death of the workmen. Just because the Deputy Commissioner of Labour had issued the letter Ex.A4 calling upon the complainant to deposit the amount that was payable to the L.Rs. of the workman, it would not automatically endorse or accord recognition to an absurd proposition of a sub contractor stepping into the shoes of the main contractor for the purposes of appropriating the later’s employees as his own for the purposes of drawing insurance benefits. The fact remains that Ex.A4 came to be issued obviously as detailed in the complaint itself in respect to the letter of intimation by the complainant himself reporting the death of Sri Mahadev Biswas. So it is the complainant that misled the Deputy Commissioner of Labor to fall in that grove and in fact the Deputy Commissioner of Labour was right in fixing up the liability in the light of the letter volunteered by the complainant. It is the most natural way of doing things but the complainant cannot take advantage of his own wrong . Likewise the correspondence from the insurance company on an intimation about the claim did not also create any vested rights in favour of the complainant as in Ex.A6. On the other hand, it is Ex.A8 that clearly shows that K.V.Mohan Rao & Co. itself sent an intimation to the Deputy Labour Commissioner in which it referred to Mahadev Biswas as its employee and there was no whisper in Ex.A8 suggesting that the said K.V.Mohan Rao had made over the said worker as the employee of the complainant. Even Ex.A9 also shows Mahadev Biswas being the employee of K.V.Mohan Rao. This device of ‘stepping into the shoes’ is unknown to law. Though the complainant bragged that he had shelled down the money, Ex.A10 clearly shows the certificate of deposit having been issued in the name of K.V.Mohana Rao only. So the plea of the complainant to claim the benefits under the shelter of K.V.Mohan Rao is simply preposterous as rightly observed by the District Forum. In other words, he clearly failed to show that Mahadev Biswas was ever his employee in order to claim benefits on the foot of his death. For the reasons stated above, we do not see any good grounds to interfere with the order of the District Forum.

Accordingly the appeal is dismissed with costs in a sum of Rs.2,000/-.

FA.No.1684/2007 AGAINST C.D.No.7/2005 DISTRICT FORUM, NIZAMABAD.

Between:

Baddam Suguna, W/o.late Baddam Srinivas

Reddy, aged 31 years, Occ:Agriculture,

R/o.Shetpally Village, Morthad Mandal,

Nizamabd District. Appellant/
Complainant

A N D
National Insurance Company Ltd.,

Through its branch Manager, Branch Office,

Nizamabad, D.No.4-8-799/1, First floor,

B.Laxmiraj Complex, Jawahar Road,

Nizamabad. Respondent/

a Opp.party.



Counsel for the Appellant: M/s.P.Shiv Kumar



Counsel for the Respondents:-Mr.N.Mohan Krishna

QUORUM: SMT.M.SHREESHA, MEMBER

&

SRI K.SATYANAND, MEMBER

MONDAY, THE THIRTIETH DAY OF NOVEMBER,

TWO THOUSAND NINE



(Typed to the dictation of Sri K.Satyanand,Hon’ble Member)
***
This is an appeal filed by the unsuccessful complainant whose claim for insurance amount on the foot of the insurance policy taken by her late husband was dismissed by the District Forum.

The facts of the case are briefly as follows:

Admittedly the husband, by name Baddam Srinivas Reddy, of the complainant took a Janata Personal Accident insurance policy for Rs.2,00,000/- valid from 29-6-1998 to 28-6-2010. On 21-2-2003 at 6.30 p.m. the said Srinivas Reddy while going on a two wheeler along with Pragada Sai Kumar as a pillion rider met with an accident in which an RTC bus dashed against them killing the said Srinivasa Reddy practically on the spot. The police entered the scene and proceeded with the investigation, prepared panchanama, inquest report and sent the body for post mortem, Ex.A4. After completion of the investigation, the police filed a final report closing action as abated. Aggrieved by the said final report, the complainant filed a protest petition to activate private complaint. While things stood thus on 27-2-2003, the complainant submitted an application for insurance amount. The opposite party acknowledged the receipt of the documents including the claim form. Ultimately by a letter dated 28-6-2004 marked as Ex.A12, the insurance company repudiated the claim stating that the insured violated the policy conditions by driving the vehicle in a drunken state while under the influence of intoxicating liquor as per the post mortem report. Aggrieved by the said repudiation, the complainant filed the complaint from out of which this appeal arises stating that the finding of the insurance company that the deceased was driving the vehicle in a drunken condition was absolutely unwarranted and therefore incompetent to be mustered as a ground for repudiation.

This claim came to be resisted by the insurance company reiterating the very same grounds that weighed with it in refuting the claim.

In support of her case, the complainant filed her affidavit and relied upon documents marked as Exs.A1 to A12. The opposite party on the other hand got filed an affidavit and tendered documentary evidence marked as Exs.B1 to B3.

On a consideration of the material, the District Forum readily accepted the plea of the insurance company to hold that there were no merits in the complaint and the repudiation was justified.

Aggrieved by the said order, the complainant filed the present appeal evidently submitting that the appreciation of the evidence by the District Forum was faulty and the finding given by it was all the more so.

Heard both sides.

The points that arise for consideration are:

1) Whether the repudiation pleaded by the insurance company is valid and justifiable?

2) Whether there are any good grounds to interfere with the order of the District Forum?

3) To what relief?

As could be seen from the repudiation letter marked as Ex.a12, the only ground relied upon by the insurance company to repudiate the claim was that the deceased violated the terms and conditions of the insurance policy by driving the vehicle at the relevant point of time in a drunken condition. In the repudiation letter itself, they relied upon the post mortem report, marked as Ex.A4, which is equivalent to Ex.B3. As could be seen from the said document what all the doctor who conducted the post mortem on 22-2-2003 while in fact the accident occurred on 21-2-2003 was that semi digested food portion, alcohol smell as against the field of stomach and contents. This casual reference to alcohol smell that found a place in the post mortem report is the entire evidence relied upon by the insurance company to hold that he consumed alcohol at the time of the accident and thereby violated the insurance policy conditions. This line of approach is totally unacceptable. If really the husband of the complainant was in an inebriated state, the standard of proof expected of from a repudiator is high. A casual remark by the doctor who conducted post mortem that too in the context of giving the smell of undigested food particles in the stomach, cannot take the place of firm proof for the allegation of driving the vehicle in a drunken state. The smell of alcohol could have set in for a number of reasons. In any view of the matter, the smell of the undigested food in the dead body which was almost at the brink of putrification with the lapse of 24 hours after the death occurred can hardly be pressed into service as proof of his drunken state. The police investigation never discovered any such fact. It is only the insurance company that resorted to such conjectural finding obviously to justify the repudiation. The District Forum for its part had come to the help of the opposite party in developing this theory by making a comment that an adverse inference had to be necessarily drawn against the complainant for not filing the last page of final report of police to the effect that such a course is resorted to only for the purpose of screening the incriminating circumstance in the context of this claim. The line of inference by the District Forum is utterly unscientific. No body prevented the insurance company to produce the final report on its own and expose this design, if any, of the complainant. Instead of finding fault with the opposite party for not resorting to such a course calculated to discharging its burden of proof, fastening to it as the repudiator, the District Forum treated the subject upside down. It is incomprehensible as to how the District Forum overlooked the bonafides of the complainant in filing a protest petition Ex.A7. In any view of the matter, the second ground innovated by the District Forum did not find a place in the repudiation letter. Strictly speaking the validity or otherwise of a repudiation has to be judged only on the basis of the grounds specifically mentioned in such letter. Going beyond such letter is definitely a sign of exceeding the jurisdiction which is liable to be deprecated. Thus we are firmly of the opinion that the repudiation pleaded by the insurance company to evade the payment of the insurance money to the complainant is not justifiable and not valid. In view of the finding aforementioned, it is very clear that the order of the District Forum suffers from a very fundamental error in the appreciation of evidence and this furnishes a good ground to interfere with the order and as a sequel set it aside. Thus we find very good grounds to interfere with the order of the District Forum.

In the result the appeal is allowed and the order of the District Forum is set aside. The complaint is allowed with costs in a sum of Rs.3,000/- directing the opposite party insurance company to pay to the complainant the insurance amount of Rs.2,00,000/- with all the concomitant benefits if any, within the framework of the policy along with interest at the rate of 7.5% from the date of repudiation i.e. 28-6-2004 till the date of payment. As interest is awarded, we are not inclined to grant any other separate compensation. The opposite party shall comply with this order within six weeks after the receipt of the copy of this order.

F.A.NO.501/2006

[Against order in C.C No.31/2004 on the file of the DCDRF, Chennai (North)]

DATED THIS THE 27th DAY OF NOVEMBER 2009

M/s.National Insurance Co. Ltd., |

Rep. by its Manager, | Appellant/Opposite Party

Divisional Office V, |

Anna Nagar, |

Chennai 600 040. |

Vs.

Meta Films (India) Ltd., |

Rep. by its Director Satish Raj, | Respondent/Complainant

157/1, GNT Road, Chinnambedu Post, |

Kavarapet, |

Tamil Nadu 601 206. |



The respondent as complainant filed a complaint before the District Forum against the appellant /opposite party praying for the direction to the opposite party to pay a sum of Rs.85,000/- for loss caused by the fire, to pay a sum of Rs.2 lakhs for the loss of business and to pay a sum of Rs.50,000/- towards compensation and for cost. The District Forum partly allowed the complaint directing the opposite party to pay Rs.85,000/- towards the loss caused to the articles, Rs.20,000/- towards compensation for loss of business and Rs.5,000/- towards cost. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.31.03.2006 in C.C.31/2004.



This appeal coming before us for hearing finally on 19.11.2009. Upon hearing the arguments of the counsels on eitherside, this commission made the following order:



Counsel for the Appellant /Opposite party : M/s.K.S.Narasimhan,

P.V.Raghavan, Advocates.



Counsel for the Respondent/ Complainant : M/s.Sarvabhauman Associates,

Advocates.



HON’BLE M. THANIKACHALAM J, PRESIDENT



1. The Opposite Party in COP.31/2004 on the file of District Consumer Disputes Redressal Forum, Chennai (North), Chennai, is the appellant.



2. The complainant, who is running a business, in the name and style of Meta Films (India) Ltd., in order to insure the machineries, took a comprehensive policy called “Standard Fire and Special Perils Policy” from the opposite party, covering the period from 09.07.2002 to 08.07.2003. On 30.10.2002 at about 2.00 a.m. fire broke out in the complainant’s factory, in which, some of the switches, ACB, Cables and other machines got burnt. On the day itself, a claim was lodged, on that basis, on 31.10.2002, a Surveyor was sent by the opposite party to assess the damage. On the very same day, without assigning any reason, the claim was rejected. Thereafter, further representation was made in writing as well telephonically. Though the complainant had insured the goods valued at Rs.6.5 crores and paid the premium alone Rs.1.30 lakhs, arbitrarily, indicating no reason, the claim was rejected. The conduct of the opposite party amounts to deficiency in service as well indulging in unfair trade practice. On the above basis, a direction was sought for, to pay a sum of Rs.85,000/- being loss caused by fire accident, a further sum of Rs.2 lakhs for the loss of business and for further sum of Rs.50,000/- as compensation.



3. The opposite party/appellant in his Written Version inter alia contended, that the complainant had informed the opposite party by fax, that the estimated damages would be around Rs.50,000/-, that the Surveyor have found and reported that all the damages which occurred due to the fire on 30.10.2002, fall under Clause 7 of the General Exclusions of the Standard Fire and Special Perils Policy and as such, they are not liable to pay any compensation, thereby, justifying their repudiation, praying for the dismissal of the complaint.



4. The trial forum elaborately considering the contention of the parties, Exclusion Clause and based upon certain judicial precedence, came to the conclusion, that the repudiation is not legally sound, that the insurance company is liable to compensate the damage caused to the complainant’s goods by fire, that by the deficiency in service, they have caused loss to the business also, in addition to, mental agony, resulting damage. Thus concluding, a direction came to be issued, to pay a sum of Rs.85,000/- being the loss caused to the article of the complainant, to pay a further sum of Rs.20,000/- as compensation for the loss of business by the complainant and further sum of Rs.5,000/- as compensation, in addition to, awarding a cost of Rs.1,000/-, giving time for payment, six weeks, failing which, imposing interest at 9% per annum, thereby, causing grievance to the opposite party, resulting this appeal.



5. Heard, the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.



6. Under Ex.A1-“ Standard Fire and Special Perils Policy”, the complainant insured his articles for the period, from 09.07.2002 to 08.07.2003, paying net premium of Rs.1,23,500/-, not in dispute. On 30.10.2002 as reported under Ex.A3, fire accident had taken place in the business premises of the complainant, in which, certain articles-machineries were destroyed. The complainant making claim, sent a fax also, wherein, he has approximately fixed the damage at Rs.50,000/- as seen from Ex.B1. Based upon the claim application-Ex.B2, admittedly, a Surveyor was nominated by the opposite party, inspected the premises and submitted a report which says “Net Adjusted Loss Rs.1,80,000/-“. While submitting the report, the Surveyor said that “the claim is not to be admitted by the insurer”. Based upon this report, the claim of the complainant appears to have been rejected, resulting, the complaint as said above. As far as the above facts are concerned, we find no dispute and the quantum assessed by the Surveyor was also not disputed before us.



7. The only submission made before us by the learned counsel for the appellant, is that the claim of complainant comes under General Exclusion Clause as per the policy, and therefore, they are not liable to answer the claim, which is opposed. By going through the provision in the policy and ascertain the meaning for the words used, we are of the view that the submission of the learned counsel for the appellant is unacceptable to us. To appreciate the Exclusion Clause, we are extracting the same as such, which reads “(A) GENERAL EXCLUSIONS”; This policy does not cover loss, destruction or damage to any electrical machine, apparatus, fixture, or fitting arising from or occasioned by over-running, excessive pressure, short circuiting, arcing, self heating or leakage of electricity from whatever cause (lightning included) provided that this exclusion shall apply only to the particular electrical machine apparatus, fixture or fitting so affected and not to other machines, apparatus, fixtures or fittings which may be destroyed or damaged by fire so set up”.



8. A careful reading of the above Clause would indicate that the Exclusion Clause is applicable only to the particular electrical machines or apparatus etc., but the same is not applicable to the entire damage, which can be seen from the words “not to other machines, apparatus, fixtures or fittings which may be destroyed or damaged by fire so set up”. Therefore, if at all applying the Exclusion Clause, the Insurance Company can deny the payment of compensation only to the machines or apparatus as the case may be, where the same was destroyed by itself due to excessive pressure, short-circuit, arcing, self heating etc., and not to other machines which were destroyed by the fire caused in the above said machines or apparatus. Therefore, generalizing that all the machines or apparatus have been destroyed by its own defect or short-circuiting, when it is not made out that other apparatus, had not caused the fire on its own, Insurance Company is not entitled to reject the total claim. Thus settling this position, now we have to see the cause of fire.



9. The Survey Report (Ex.B3) is not challenged. In this report, the Surveyor has stated that “the fire got ignited due to arcing in the MV Panel Board. Due this arcing, the other machine card also damaged by short circuit arising out arcing. Hence, it was concluded as electrical short circuit in the MV Panel Board”. The above conclusion of the Surveyor Report would indicate that the short-circuit has arisen only in the Multi Voltage Panel Board, then spreading fire to other articles causing damage. As seen from Para 4 of the Surveyor’s Report, excluding the cost of MV Panel Board, it seems, amount is claimed and that is why in the complaint, a sum of Rs.85,000/- is claimed, though net assessed loss has been fixed at Rs.1,90,000/-. This assessment, according to the Surveyor, is given for notional purpose and not for settlement. The cost has worked out under the heading “STATEMENT OF LOSS” is not challenged. Therefore, taking into account the cause of fire and the fact, fire spread to other machineries also, we have no hesitation to come to the conclusion that the entire damage will not come within the exclusion clause and if at all where from short-circuit emanated alone will come under the Exclusion Clause. The trial forum considering the above facts and circumstances of the case, in our considered opinion, has rightly directed the opposite party to pay a sum of Rs.85,000/- being the loss caused to the articles of the complainant, in which, we are unable to find any irregularity or illegality warranting our interference. The approximate value informed by Fax will not preclude the complaint, from claiming the real value.



10. As far as the grant of compensation of Rs.20,000/- for the loss of the business by the complainant appears to be unwarranted and same is also against the terms and conditions of the policy. Under “(A) GENERAL EXCLUSIONS – Clause-9” --- “Loss of earnings, loss by delay, loss of market or other consequential or indirect loss or damage of any kind or description whatsoever”, is not covered by the Policy and therefore, this compensation of Rs.20,000/- has to be set aside.



11. The trial forum has granted a compensation of Rs.5,000/-, in which, we are unable to find any irregularity since the trial forum has granted nominal amount, though the complainant has claimed Rs.50,000/-, considering the delay caused by the Company. For the reasons stated supra, the appeal has to be allowed in part, with modification.



13. In the result, appeal is allowed in part, setting aside the compensation granted for the loss of business alone, confirming the rest of the order which directs to pay a sum of Rs.90,000/- (Rs.85,000/- + Rs.5,000/-). No order as cost in this appeal.

F.A.NO.605/2006

[Against order in C.C.No.45/2005 on the file of the DCDRF, Erode]

DATED THIS THE 18th DAY OF NOVEMBER 2009

M/s.National Insurance Co. Ltd., |

by its Branch Manager, | Appellant/Opposite Party

403/B-10, Karthikeya Complex, |

Mettur Main Road, |

Bhavani 638 301. |

Vs.


R. Ganesan, |

S/o. M.Ramasamy, | Respondent/Complainant

Chinnapuliyur Mettur, |

Periyapuliyur Post, |

Bhavani Taluk 638 455. |


The respondent as complainant filed a complaint before the District Forum against the appellant /opposite party praying for the direction to the opposite party to pay a sum of Rs.1 lakh with interest at 12% from 23.02.2004 and to pay a sum of Rs.50,000/- towards compensation and Rs.2,000/- for cost. The District Forum partly allowed the complaint directing the opposite party to pay Rs.50,000/- towards first mediclaim policy from 19.08.2005 till payment till with 12% interest, Rs.10,000/- towards compensation for mental agony and Rs.1,000/- towards cost. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.24.03.2006 in C.C.45/2005.

This appeal coming before us for hearing finally on 05.11.2009. Upon hearing the arguments of the counsels on eitherside, this commission made the following order:
Counsel for the Appellant /Opposite party : M/s.N.Vijayaraghavan,

M.B.Raghavan, Advocates.
Counsel for the Respondent/ Complainant : M/s.A.K.Kumaraswamy,

S.Kaithamalaikumaran, Advocates.

HON’BLE M. THANIKACHALAM J, PRESIDENT



1. The opposite party in C.C.45/2005 on the file of the District Consumer Disputes Redressal Forum, Erode, is the appellant.



2. The complainant/respondent had taken mediclaim policy for the period 27.06.2001 to 26.06.2002 for a sum of Rs.50,000/- and another mediclaim policy which was valid upto 27.06.2003. Because of some illness, the complainant was admitted in Sri Ramakrishna Hospital on 13.05.2002 and discharged on 10.06.2002. The expenditure incurred was approximately Rs.50,000/-. Similarly, the complainant was taking treatment during the currency of the second mediclaim policy, being an inpatient between 5.10.2002 to 21.10.2002, for which, he had spent a sum of Rs.50,000/- in Sri Ramakrishna Hospital, Coimbatore. On the basis of the illness and for the amount spent towards medical expenditure, having valid policy, when the claimant sought the reimbursement of the amounts, the same were repudiated by the Insurance Company, on false and untenable grounds, for which, they should be construed as committed deficiency in service, for which, they are liable to pay a sum of Rs.1 lakh with interest thereon as well another sum of Rs.50,000/- for compensation towards mental agony, anxiety etc., Hence, the claim.



3. The complainant submitted proposal for mediclaim insurance policy, wherein, he has declared that he is not suffering from any ailment, sickness or injury. Accordingly, the policy was issued, for the period, commencing from 27.06.2001 to 26.06.2002, which was subsequently renewed with a break from 28.06.2002 to 27.06.2003. The complainant lodged the mediclaim with reference to the policy in question, on 11.07.2003 for multiple Myeloma and Chronic Loculated Empyeme Thoracis, for the period 5.10.2002 to 21.10.2002 and 13.05.2002 to 10.06.2002. As per the rules, within 7 days from the date of hospitalization, claim should have been and details should have been submitted within 30 days from the date of discharge from the hospital. Since the complainant failed to do so, he is not entitled to claim the amount, assured under mediclaim policies. The complainant had taken treatment for two diseases called “Multiple Myeloma and Chronic Loculated Empyeme Thoracis” should have been present even before taking the policy i.e. to say that the complainant must have been suffering from the said diseases even before 27.06.2001, which he has failed to disclose at the time of giving the proposal. Thus, the complainant has violated the terms and conditions of the mediclaim policy, and therefore the claim was repudiated, not only on that ground, but also on the ground of limitation. On the above lines, the claim was opposed.



4. The District Forum by going through the affidavit of either parties as well as evaluating Ex.A1 to Ex.A21 and Ex.B1 to Ex.B6, has come to the conclusion that under two policies, which covers the period of 28.6.2002 to 27.06.2003, he is not entitled to claim any amounts, since knowing that he was suffering illness, suppressed the same, thereby, violated the conditions of the policy. On the other hand, it is the conclusion of the trial Forum that as per as the claim under the first policy is concerned, it is not proved that he had knowledge about the existence of the disease and if at all, he came to know the disease only after the examination by the parties and in this view, it cannot be held that he suppressed the pre-existing disease. Thus, concluding, the claim was partly allowed, directing the opposite parties to pay a sum of Rs.50,000/- under the first policy with interest thereon, negativing the claim of another Rs.50,000/- under second policy.



5. By the direction of the lower forum, prima facie, though both the parties are aggrieved, the complainant has not preferred any appeal, whereas, the opposite party alone questioning the correctness of the lower forum, ordering Rs.50,000/- to be paid, has filed this appeal.



6. Heard the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.



7. The only ground urged on behalf of the appellant before us is, that the repudiation was made under the exclusion clause of the policy since the complainant had suppressed the pre-existing disease, at the time of the proposal, which was not properly considered by the lower forum and in this view, the appeal deserves acceptance. Opposing the above defence, a submission was made on behalf of the complainant, that the complainant was not suffering from any pre-existing disease at the time of taking mediclaim policy, which is in dispute now and the disease was diagnosed by the hospital, was a new one and therefore on the ground of pre-existing disease, the repudiation made by the Insurance Company, cannot be accepted, which was rightly decided by the lower forum, thereby, seal of approval of the lower forum order was prayed.



8. Admittedly, the complainant had taken two mediclaim polices, one by one, and in this appeal, we are concerned only the first policy, which covers the period from 27.6.2001 to 26.6.2002. The claim is made under this policy, for the expenses incurred between 14.6.2002 to 25.6.2002. The trial forum in Para 8 of the judgement, has concluded that the petitioner came to know about the disease, for which, he is suffering only after taking treatment at Sri Ramakrishna Hospital and therefore the non-disclosure of the same, will not affect the claim, since according to the lower forum, as well as according to the complainant, it will not come within the meaning of pre-existing disease. In this context, we have to see, the treatment taken by the complainantl Ex.A10 is the Discharge Summary, for the treatment given to the complainant between 13.05.2002 to 10.6.2002. In this document, it is said under the heading DIAGNOSIS “Multiple Myeloma with Renal failure”. Under the heading ‘INVESTIGATION’ also the same is said as disease, for which, medicines also prescribed. The Discharge Summary also discloses, blood transfusion, Dialysis etc., A renal failure will not occur in a day or two and it should have occured to the complainant, even prior to the taking of the mediclaim policy. Therefore, when he submitted a proposal, he should have disclosed the same, but admittedly, he failed. Therefore, in our considered opinion, the repudiation of the Insurance Company, negativing the claim of the complainant, to pay the amount even under the first policy, appears to be legally sound, in which, we are unable to find any illegality or irregularity.



9. The fact in Ex.A10, the doctor has not stated as if the disease was a pre-exisiting one, will not take way the inference that could be drawn from the disease itself. The complainant reported to the doctor, that he was suffering with vomiting sensation, with low back pain, will not lead to the presumption that the disease “Multiple Myeloma with renal failure” was occurred at the first time after taking first policy. The complainant, at least, should have obtained the affidavit from the doctor, who treated, stating that this kind of disease, would occur immediately also, and it is not necessary that it should spread over for a long period. In the absence of such materials on the side of the complainant and considering the nature of the disease namely renal failure, we are constrained to hold that this disease also must have been in the existence at the time of taking first treatment, but unfortunately, the claimant has not disclosed the same, thereby, his claim comes within the Exclusion Clause 4.1.



10. True, when the Insurance Company has taken the defence that the disease was a pre-existing one, it is their duty to prove the same and to discharge that burden, Ex.B5 was produced. A qualified doctor who is in the panel of the Insurance Company, by going through the documents, submitted by the claimant, has opined that the treatment taken by the complainant for “Multiple Myeloma with renal failure” from 13.05.2002 to 10.06.2002 also should be construed as pre-existing disease, taking into consideration, the continuous of the treatment taken by the claimant. Under the second policy, when the claim was made that was also repudiated, which was accepted by the lower forum, which is not challenged, as pointed by us supra. Ex.A16 is the Discharge Summary of Sri Ramakrishna Heart Foundation & Research Centre, Coimbatore, which would indicate that the complainant had taken treatment for “Chronic Loculated Empyema Thoracis (RT)”. In spite of the chronic nature of this disease, the complainant has also suppressed the same while taking the second policy. Taking into account all these things, and going through the nature of the disease, as adverted to above, in Ex.B5, it is stated that the expenses whatsoever incurred by the insured person in respect of “Multiple Myeloma with renal failure” should be construed, for pre-existing disease, in which, we are unable to find any defect.



9. The trial forum in its order, has not given any finding as if the petitioner was not suffering from pre-existing disease, whereas, the finding says that the petitioner came to know the disease only after the examination in the hospital and therefore the non disclosure of the same in the policy, probably, will not affect the mediclaim. The policy condition does not say that the pre-existing disease must be known to the complainant, and even if it is not known, its existence on the date of taking the policy could be established, then the Exclusion Clause will operate. In support of the above point, our attention was drawn to a decision of this Commission in “New India Assurance Co. Ltd., Vs. Master D. Vishnu”, wherein, it is held that this kind of defence, namely, that the insured was not aware of the disease on the date of taking the policy, is not available to them, when it is proved that the disease was pre-existing. Under the above said circumstances, we feel, there is no illegality or any factual defect in the repudiation of the claim, which was not properly considered by the lower forum, which we have to concede in this appeal. For the above said reasons, the order of the lower forum is liable to be set aside.



12. In the result, the appeal is allowed. The order of the District Forum in OP No.45/2004, dt.24.03.2006 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost, throughout.

The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellant/opposite party duly discharged, since appellant succeeded, and there is no need to retain the FDR.