First Appeal no. 95/2009 Date of Filing: 22/01/2009

Consumer Complaint No. 163/1998

District Consumer Forum: Thane Date of Order: 10/11/2009

Shri Ramesh Kumar Karnal, Appellant

R/at- F-3, RH6, Sector-6, (Org.Complainant)

Vashi, Navi Mumbai.

V/S
1. National Insurance Co. Ltd. Respondents

5th floor, Vindhya Commercial Complex, (Org.Opp.Parties)

Plot No.01, Sector-11,

CBD Belapur, Navi Mumbai- 400 614.

2. Senior Divisional Manager,

National Insurance Co. Ltd.,

5th floor, Vindhya Commercial Complex,

Plot No.01, Sector-11,

CBD Belapur, Navi Mumbai- 400 614.


Quorum : Justice Mr.S.B.Mhase, Hon'ble President

Mr.S.R.Khanzode, Hon’ble Judicial Member.

Present: Adv.Mr.Pravin Desai for appellant.

:- ORAL ORDER :-

Per Justice Mr.S.B.Mhase, Hon’ble President:

This appeal is directed against the order passed by District Consumer Forum, Thane (Additional) decided on 19/12/2008 in consumer complaint no. 163/1998.

The complaint filed by the appellant has been dismissed. The appellant is owner of Scorpio CRD SLX motor vehicle bearing no.MH-43 R 0263. It was purchased and thereafter, it was insured for a period from 27/11/2007 to 26/11/2008 with the respondent/insurance company for an amount of Rs.6,27,000/- being comprehensive insurance policy. It appears that the said motor vehicle was stolen away on 05/12/2007 from Vashi, Navi Mumbai. Accordingly, it was informed to the insurance policy. The said vehicle was traced on 04/03/2008 at Calicut and accordingly, it was informed to the insurance company. Insurance company thereafter, asked the appellant whether he will bring the vehicle from Calicut to Navi Mumbai or the insurance company shall arrange to bring the vehicle from Calicut. The appellant decided to bring the vehicle himself and accordingly, the appellant went to Calicut and got the said vehicle in his possession from the court. He brought the said vehicle to Panvel. It is to be noted that from Calicut to Bombay the vehicle was driven and it was towed by another vehicle therefore, the condition of the vehicle was damaged as such, it has crossed a distance of more than 1500 k.m.

After the vehicle was brought at Panvel, it appears that the appellant called upon orally the insurance company to carry out the repairs. It is the case of the appellant that the insurance company orally informed that the repairs may be carried out. However, we do not find such an averment in the original complaint. It is to be also noted that after the vehicle was repaired, survey has been carried out and the surveyor’s report has been given to the appellant after the legal notice has been served. The surveyor has stated in his report that the appellant is entitled to Rs.29,394/- only. This is being disputed by the appellant. But we find that District Forum has considered this aspect and has reproduced the clause from the insurance policy, which provides for the calculation of the depreciation of the parts which are substituted in the repairs. It is to be noted that as per this provision if the parts are of rubber/plastic parts, tyres and tubes depreciation is 50%, for fiber, glass components depreciation is 30% and for all parts made of glass there is no depreciation. So far as the depreciation of other parts including wooden parts is concerned, there is a separate schedule. We are concerned with the schedule which lays down the rate of depreciation for a period of tow years. Said provision sates that 10% depreciation is permissible. What is to be noted after careful perusal of the surveyor’s report that he has carried out the depreciation as per the rules. The surveyor has also provided that the fare of the driver form Mumbai to Calicut also be paid. After considering all these aspects, the District Forum has rejected the complaint.

Ld.Counsel for the appellant tried to persuade us. After going through the surveyor’s report, we do not find the metal parts are being damaged and we are satisfied with the surveyor’s report. There is not substance in the appeal. Therefore, The appeal is liable to be rejected. Hence, we pass the following order:-

:-ORDER-:

1. Appeal stands rejected.

2. Parties are left to bear their own costs.

3. Copies of the order herein be furnished to the parties.

FIRST APPEAL NO. 1704 OF 2005

IN COMPLAINT CASE NO. 68 OF 2003

DISTRICT CONSUMER FORUM: JALNA.

Hotchnad s/o. Chelaram Khanchandani

R/o. Society Vasar Bhandar,

Tilak Road, Ambad Tq. Ambad,

Dist. Jalna. … Appellant

-VERSUS-

National Insurance Company Ltd.,

Through its Manager,

Sarojini Devi Road, Jalna,

Tq. & Dist. Jalna. … Respondent

Coram : Shri.S.G.Deshmukh, Hon`ble Judicial Member.

Mrs. Uma S.Bora, Hon`ble Member.

Present: Adv. Shri. B. R. Sukase, for appellant.

Adv. Shri. V.N. Upadhye, for respondent.

-:: ORAL ORDER ::-
Per Shri S.G.Deshmukh, Hon`ble Presiding Judicial Member

1. The present appeal is filed by the original complainant against the judgment and order dated 20.07.2005, in complaint case no. 68/2003 passed by District Consumer Forum, Jalna.

2. The appellant/complainant’s case before the Forum is that, appellant had taken medi-claim policy in the joint name of the complainant and his wife, for the period 30.03.2002 to 29.03.2003 for sum assured Rs.2,00,000/-. It is contended that, at the time of obtaining policy the health of the complainant was good. Thereafter, he started some pain in stomach. He was medically examined. He was advised for operation of Gall Bladder. It is contended that, the appellant went to Pune in Inlaks and Budhrani Hospital, where operation was performed. It is contended that, he incurred the expenses of Rs. 40,442/- for the operation, thus, he preferred the claim. The claim was repudiated by the Insurance Company vide its letter dated 26.12.2002 on the ground that, he was having pre existing disease and he had suppressed this material fact. Thus, he approached the Forum.

3. The present respondent appeared before the Forum and resisted the claim. It is contended that, the complainant had obtained medi-claim policy for the period 30.03.2002 to 29.03.2003 from the New India Assurance Company. He had preferred the claim and New India Assurance Company made the payment of medi-claim. It is contended that, the New India Assurance Co. refused to renew the policy. The appellant had suppressed the material particulars about his disease, thus, they have rightly repudiated the claim.

4. Forum below after going through the papers and hearing the parties, dismissed the complaint and directed the appellant to pay Rs. 5,000/- towards the compensatory cost.

5. Being aggrieved by the said judgment and order complainant came in appeal.

6. Notices were issued to the appellant as well as the respondent. Learned counsel Shri. B. R. Sukase, appeared on behalf of appellant and Shri. V.N. Upadhye, appeared for respondent. We heard both the counsels. We perused the papers. On perusal of papers it reveals that, the present appellant had obtained the medi-claim policy for the period 30.03.2001 to 29.03.2002 from the New India Assurance Company. It also reveals from the papers produced by the respondent that, the present appellant had preferred the claim for the expenses incurred for Gastic Bleeding & Piles, Polypactomy. It also appears that, the present appellant had preferred the claim for Gall Bladders and stone operation also which is not decided by New India Assurance Company. While obtaining the policy for the period 30.03.2002 to 29.02.2003 from the respondent the appellant suppressed all the facts while submitting the proposal. It was necessary for the appellant to disclose all the facts regarding his health. The papers produced on record shows that, he was already suffering from the Gall Bladders. The Forum has rightly considered this aspect and rightly dismissed the claim. The Forum imposed the amount of Rs.5,000/- towards the compensatory cost. As the appellant suppressed the material particulars about his health, the respondent repudiated the claim. Forum ought not to have imposed the compensatory cost of Rs.5,000/- as the claim cannot be said to be frivolous. We allow the appeal in part and pass the following order.

- O R D E R -

FIRST APPEAL NO. 676 OF 2009

IN COMPLAINT CASE NO. 41 OF 2009

DISTRICT CONSUMER FORUM: HINGOLI.

National Insurance Company Ltd.

Divisonal Office, Hazari Chambers

Railway Station Road, Aurangabad,

Through its Divisional Manager, … Appellant

VERSUS

1. Smt. Nilawantibai w/o. Balasaheb Savant

R/o. Bori Savant, Tq. Vasmat,

Dist. Hingoli.

2. The Cabal Insurance Services Pvt. Ltd.,

Shop No.2, Disha Alankar

Town Center, Cidco, Aurangabad.

3. The Tahsildar, Tahsil Office,

Vasmat, representing the

State of Maharashtra. … Respondents



Coram : Shri.S.G.Deshmukh, Hon`ble Judicial Member.

Mrs. Uma S.Bora, Hon`ble Member.



Present: Adv. Shri. S.V. Kulkarni, for the appellant.


:: ORAL ORDER::
Per Shri S.G.Deshmukh, Hon`ble Presiding Judicial Member



1. The present appeal is filed by the National Insurance Company Limited against the judgment and order dated 31.08.2009 in complaint case No. 41/2009 passed by District Forum, Hingoli.

2. The respondent/complainant’s case before the Forum is that, deceased Balasaheb Savant, the husband of respondent no.1/complainant was the farmer in Maharashtra. It is contended that, the State of Maharashtra had obtained the ‘Janata Personal Accident’ policy for the farmers in Maharashtra, for sum assured Rs.1,00,000/-. It is contended that, on 12.08.2007 the deceased was coming on motor-cycle towards Bari Savant, he was dashed by S.T. Bus. He was removed to the Parbhani Hospital where he was declared dead. Complainant being the legal heir of the deceased preferred the claim through Tahasildar. The claim was repudiated on the ground that, the intimation was late. The claimant ought to have filed the claim within 90 days, thus, she approached the Forum.

3. The present appellant appeared before the Forum and resisted the claim. They submitted that the intimation regarding claim was delayed and thus, they have repudiated the claim.

4. Respondent No.2 also appeared before the Forum.

5. Forum below after going through the papers and hearing the parties allowed the complaint and directed the appellant to pay Rs.1,00,000/- with the interest @ 9% p.a. from 27.12.2007. Forum also directed the appellant to pay Rs.1,000/- towards the cost.

6. We heard learned counsel Shri. S.V. Kulkarni, for the appellant. The leaned counsel submitted that, the claim was repudiated on the ground of delayed intimation. He further submitted that, the claimant did not submit the driver license of deceased Balasaheb Savant. According to him Forum did not consider this aspect.

7. Appellant also filed the application for condonation of the delay. Delay caused is of 3 days, properly explained. We condone the delay.

8. We perused the papers and gave our anxious thoughts to the argument advanced by learned counsel. On perusal of papers it reveals that, the present appellant nowhere pleaded in the written statement filed before the Forum. The complainant did not produce driver’s license and the deceased did not have valid license when he was driving. Even it is not the ground while repudiating the claim. The point can not be raised in the appeal, which is not ground of repudiation and also defense in written statement.

9. In New India Assurance Co. Ltd. vs. Nanasaheb Hanumantrao Jadhav reported in 2005 II CPR - 24. The State Commission has observed that, the clause regarding intimation of claim within one month is directory and not mandatory. Insurance claim intimated late cannot be rejected on its violation alone.

9. In the instant case, it appears in the letter of Tahsildar shows that, he had received the claim on 27.12.2007. The deceased died on 12.08.2007. The clause regarding intimation of claim is directory and not mandatory. The claim can not be rejected on that ground. We are not inclined to interfere the order passed by the Forum. We pass the following order.

:: O R D E R ::

1. Appeal is dismissed summarily.

2. No order as to cost.

3. Copy of the order be furnished to the parties.

APPELLANTS/COMPLAINANTS :

1. Divisional Manager, National Insurance Company Ltd ,

Debijhora Building, Thana Road, PO & Dist- Jalpaiguri.

2. The Regional Manager-II,

National Insurance Co Ltd.

8, India Exchange Place,

2nd Floor, Kolkata- 700001.

RESPONDENTS/O.P.S : :

1. Shri Jayanta Dutta .

2. Shri Sukumar Dey

Subhasnagar, Maynaguri,

District-Jalpaiguri.

BEFORE : HON’BLE JUSTICE : Mr.A.Chakrabarti,PRESIDENT.

HON’BLE MEMBER : Shri A.K. Ray.

HON’BLE MEMBER : Smt. Silpi Majumder.

FOR THE PETITIONER : Miss S. Biswas. Advocate.

Sri M.P. Chakrabarty. Advocate.

FOR THE RESPONDENT : Sri B. Prasad. Advocate.

Sri. A.K. Ray, Hon’ble Member.

The appeal is directed against the order dated 7.5.09 passed in case no 05 of 2009 by the District Forum , Jalpaiguri. The Forum below allowed the complaint on contest in favour of the Complainants who were to receive Rs. 2,77,996/- from the OP within a period of 1 month from the date of the order failing which interest @ 10 % p.a would accrue.

2. Being aggrieved by the aforesaid order the Appellants have preferred the instant appeal mainly on the grounds that the Forum mis-directed itself in coming to its conclusion on hypothetical basis as the survey report of the surveyor appointed by the Appellants clearly mentioned that there was no seepage of water into the godown and the alleged loss incurred by the Complainants was not true. The Forum below also dis-believed the opinion of the Appellants’ surveyor who assessed that the loss incurred by the Complainants was much less than amount claimed by the Complainants. The calculation of the amount of compensation was also wrong as the 40% loss was arrived at by the Forum bereft of any basis. The trial Forum ought to have considered the contentions of both the surveyors’ report before coming to any definite conclusion.

3. The case of the Complainants in brief was that they had insured the jute in their rented godown under the OPs for the period from 28.8.07 to 27.2.08 against an insured amount of Rs. 15,00,000/-. The godown of the Respondents situated at Maynaguri in the District of Jalpaiguri got water logged in view of a heavy rain followed by water logging and inundation on and from 27.8.07 to 29.8.07. A claim towards loss to the tune of Rs. 3.5 lakh was lodged with the OPs/ Appellants on 30.8.07. One surveyor and loss assessor was appointed by them. A report of the said surveyor was filed to them on enquiry, inspection and assessment of the loss incurred by the Complainants. As the claim was not settled within a reasonable time the Complainants took shelter of the District Forum below seeking certain reliefs from the OPs. The OPs contested the case before the Forum below by filing W.V wherein it was stated that the case was not maintainable in its present form and nature. They denied the fact of occurrence of a heavy rain on 28.08.07 allegedly causing damage of jute of the Complainants kept in the godown.

4. The Appellants in their brief notes of argument filed before us on 9.12.09 last stated inter alia that the claim of the Respondents was not correct and was repudiated by the Appellants on the grounds that their surveyor estimated the loss of the Complainants to be much less than Rs. 3.50 lakh. This was a complicated case requiring elaborate and detailed evidence by a competent court of civil jurisdiction and not by way of summary proceeding by the Forum.

5. It appears that the Complainants/ Respondents before us engaged one Kaushik Adhikary, surveyor and loss assessor to assess the loss of the property due to rain and inundation. Sri Adhikary made an elaborate assessment of the loss and came to a finding that the total loss was to the extent of Rs. 3,50,000/-.

6. We have also seen a copy of a report dated 24.01.08 furnished by one Sri P.K. Saha, surveyor/ loss assessor engaged by the Divisional Manager, National Insurance Company Ltd., Jalpaiguri. It appears that he conducted his survey on 30.08.07 and other days and filed his report on 24.01.08 which was indeed a reflection of consumption of a good period of time. He however admitted the fact of a heavy rain fall in the night of 29.08.07 at Maynaguri area and the rented godown of the insured was inundated causing damage to jute bales and loose jute. During his visit he found a few bales partially emerged in water till then and a huge number of jute bales had been affected due to ingress of rain water. In order to find out the actual loss of the insured due to the incident in question he examined the books of account of the business. He perused the current year’s purchase register, sale register of the insured and found that the total stock of jute as on 29.08.07 at the closing hour was 1255.13 qtls. On checking those books and accounts he also found that the average purchase rate of jute was Rs. 1179.60 per qtls. He accordingly assessed the loss to be Rs. 49,126.83/-.

7. Evidently, the surveyor engaged by the Complainants did not examine any books of account of the Complainants regarding purchase price or selling price of the jute. The Complainants also did not file any documents to the Forum below to show the price of the jute which got damaged due to water logging and inundation; but the surveyor appointed by the Appellants examined the books of account, purchase and sales register produced by the Complainants. Obviously, the report of the surveyor of the Appellants was apparently more authentic in the matter of assessing the price of jute and loss. But the surveyor of the Appellants did not assess the percentage of loss which however was found to be 40 % by the surveyor of the Complainants.

8. It appears that the Appellants’ surveyor found 210 bales of jute and 115 qtls of loose jute which were badly damaged by water. But surveyor of the Complainants/ Respondents found 275 bales of jute which were extensively damaged and he calculated the loss after allowing 40% loss to the tune of Rs. 2,47,500/-. In addition to it he also assessed the loss of stock of loose jute of 97 qtls and after allowing 40 % loss the price of the damaged loose jute was assessed at Rs. 34,750/-. We are however inclined to accept the finding of the Forum below so far it relates to assessment of loss including other charges and litigation cost sum total of which comes to Rs. 2,77,996/-.The appeal therefore fails to succeed.

9. It is accordingly ordered that the appeal be dismissed on contest without cost. The impugned order of the Forum below is affirmed. The Appellants shall pay the sum awarded by the Forum below within 40 days from the date of communication of this order failing which interest @ 10% p.a shall accrue on the decretal amount for the period of default in payment.

31, Belvedere Road, Kolkata - 700027
FA No: 403 Of 2009
(Arisen out of order dated 21/04/2009 in Case No Complaint Case No. CC/08/31 of District Nadia DF, Krishnanagar)
1. The Branch Manager, National Insurance Co. Ltd. Lalmohan Ghosh Road. PO. Krishnanagar, Dist. Nadia., Lalmohan Ghosh Road. PO. Krishnanagar, Dist. Nadia.
2. The Senior Divisional Manger, The National Insurance Co. Ltd. Division-III, National Insurance Building, Ground floor, 8, India Exchange Place, Kolkata- 700001., Division-III, National Insurance Building, Ground floor, 8, India Exchange Place, Kolkata- 700001.
....Appellant
Versus
1. Smt. Rina Mondal. W/O Late Sanatan Mondal. D/O Sree Baburam Mondal. Vill- Jamalpur, PO. Paglachandi, PS. Kaliganj, Dist. Nadia. , W/O Late Sanatan Mondal. D/O Sree Baburam Mondal. Vill- Jamalpur, PO. Paglachandi, PS. Kaliganj, Dist. Nadia.

....Respondent

BEFORE :
HON'BLE JUSTICE ALOKE CHAKRABARTI , PRESIDENT
MR. A K RAY , Member
MRS. SILPI MAJUMDER , Member

PRESENT: Mr. A. K. Bandyopadhyay., Advocate for the Appellant 1
Mr. Soumendra Mohan Sanayal. Mr. Stiyfen Mondal. , Advocate for the Respondent 1
*JUDGEMENT/ORDER

ORDER NO. 3 DT. 18.12.09

Heard Mr. A.K.Bandyopadhyay, Ld. Advocate for the Appellant, in support of the application for condonation of delay and Mr. Stephen Mondal, Ld. Advocate, opposing the same. It appears from the own case of the Appellant that the first certified copy was obtained and that was misplaced from the office of the Appellant and the second certified copy was obtained in July'09 on the basis of which the present Appeal was filed. We find from the record that the Appeal was filed actually on 15.10.09 though an application for condonation of delay was filed later followed by an affidavit explaining the delay. We are not able to find out in the explanation the cause of delay occurred between 21.7.09 and 15.10.09. The explanation relied on by Mr. Bandyopadhyay is contained in Para-3 of the application, which is absolutely vague and we are unable to appreciate such grounds for explaining such a long period of delay. It appears from the position that a copy of the judgement was supplied by the Respondent to the Appellant intitially on 22.5.09 followed by a reminder received on 9.6.09. We are unable to find any explanation either in the application or in the supporting affidavit subsequently. The explanation is not acceptable in respect of such a long delay. Therefore, in the circumstances, the explanation and the application is dismissed. The Appeal accordingly stands dismissed.

APPELLANT : National Insurance Company Limited,

Middleton Street, Kolkata-700 071.

And Ballygunge, 3A, Gariahat Road,

P.S.- Gariahat, Kolkata-19.

RESPONDENT : 1. Dr. Pinaki Sengupta.

2. Sri. Bibhuti Bhusan Sengupta.

3. Smt. Suparna Sengupta, 19B, Roy Bahadur Road,

P.S.- Behala, Dist-24-Parganas (South), Kolkata-700 034.


4. Family Heath Plan Limited, Kolkata Center,

1st Floor, 16/2, Lake View Road, Kolkata-29.

BEFORE: HON’BLE MEMBER : Sri. A.K. Ray.

MEMBER : Smt. Silpi Majumder.


FOR THE APPELLANT : Sri. Swarajit Dey, Advocate.

FOR THE RESPONDENT : Sri. Srijan Anjan Dutta, Advocate.


-ORDER-



S. Majumder, Member.



The Appellant-Insurance Company against the judgment passed by the District Forum, Kolkata-Unit-I, on 22.01.2008, has preferred this appeal. Application for getting the certified copy of the said judgment was made by the Appellant on10.09.2009 and it was received by it on 10.09.2009 and this appeal was filed on 22.09.2009. So there is delay of 605 days in preferring this appeal from the date of passing the judgment by the Forum below. The Appellant is not entitled to get any benefit the statutory period of limitation as it applied for certified copy of the judgment more than one year from the date of passing the judgment. The Appellant has filed an application for condonation of delay along with the memorandum of appeal. We took up the application for hearing in presence of both parties.



It has been stated in the said application that the Complainants obtained an exparte order from the Forum below and the present Appellant did not get any opportunity to contest the complaint petition because though the local branch Office of the Appellant received notice from the Forum below and the said office duly appointed one panel Advocate after handing over all the relevant papers and documents for contesting the complaint case, but the said Advocate did not appear before the Forum below and even he did not bother to inform the Appellant his inability. So the Forum below heard the complaint exparte and the Forum also did not inform the Appellant that the case will be taken exparte. After getting the judgment the Complainant being the DHr. put the decree in execution and accordingly an Execution has been filed before the Executing Court. The said Court started proceedings u/s 27 of the C.P. Act, against the Appellant-JDr. And issued bailable warrant of arrest summon against the Appellant, namely against the Senior Manager, but who is not responsible for this as he never dealt with the court case. Being embarrassing the Appellant contacts another Advocate and after collecting the certified copy of the original judgment filed this Appeal. The Ld. Counsel for the Appellant has submitted that the Appellant was in dark about the complaint case as well as the Execution case and did not get any opportunity to appear for contesting the said two litigations. The newly appointed Advocate had appeared before the Executing Court, the Senior manager surrendered and got bail on 23.09.2009. After getting the certified copy of the original judgment the Appellant decided to challenge the impugned judgment before the State Commission and filed the appeal within one month from the date of receipt of the certified copy of the Trial Court’s judgment. It has been further contended by the Appellant that such delay in preferring this appeal is not intentional and beyond the control of the Appellant and the Appellant has prayed for condoning the delay as it has a meritorious case in its favour, if the delay is not condoned it will suffer irreparable loss and injury.



The Ld. Counsel for the Respondents raised vehement objection against the application for condonation of delay by filing written objection. It has been stated by the Respondents that inspite of valid notice the Appellant did not bother to appear before the Ld. Forum and even after receipt of the notice of the Executing Case the Appellant also did not appear for a long period the Executing Court was compelled to pass the order for warrant of arrest and according to the Respondents the Executing Court has passed a quite reasonable order otherwise there was no way out because as per provision of the C.P. Act the Executing Court can order for arrest warrant in case of continuous absence of the Jdr. before the said Court. The Ld. Counsel for the Respondents has further submitted that the Forum below had to pass an exparte judgment due to non-presence on behalf of the Respondent and as per judgment the Complainants got a decree in their favour and now the Appellant wants to delay the decree with malafide intention, which cannot be entertained in the eye of law. The Advocate for the Complainants forwarded the judgment along with a forwarding letter to the Appellant and which the Appellant on 25.02.2008 duly received, but the Appellant did not present before the Executing Court for a long period. The Appellant on 15.12.2008 and 16.12.2008 also duly received Service of notice of the Executing Court, but the Appellant remained silent. According to the Respondents the application for condonation of delay should be dismissed with cost.



On careful consideration of the application and the objection against the application it is seen by us that notices of the consumer complaint were duly served upon the OP-Appellant, but it did not turn up and the case was heard exparte accordingly. Though the Appellant has mentioned that after receipt of notice one Advocate from its panel was appointed, but he did not appear before the Forum below. In this context we are of the opinion that the Appellant being a mighty Company has several legal officers for dealing with the court cases and obviously in the instant case one law/legal officer was engaged for dealing. When the appointed panel Advocate did not appear inspite of taking power and related documents from the Company, what step has been taken against the said Advocate, the application is silent. Not only that why the said law officer did not take any feed back regarding appearance of the said Advocate and proceedings before the Forum below from the appointed panel Advocate when the said law officer is taking hefty pay package in every month from the public exchequer. The Appellant has no authority to proceed in a dilly-dalling manner where their customers’ interests are related as they are enjoying public money. So the Appellant should be more cautious and vigilant for redressal of the grievances of their customers henceforth.



After getting decree the Complainant put the same before the Executing Court and the Jdr on 15.12.2008 and 16.12.2008 duly received the notice, but the Appellant did not appear (two A/D cards has been filed by the Respondents). Thereafter the Respondents issued the original judgment along with a forwarding letter upon the Appellant requesting it to comply with the judgment, which was duly received by the Appellant on 25.02.2008, but inspite of receipt of such correspondences from the Respondents-DHr the Appellant-JDr did not bother to appear before the Executing Court and did not show any good gesture to the Complainants. We have noticed that the Complainants tried to co-operate with the Appellant in respect of compliance of the judgment passed by the Forum below, but no respect was shown from the Appellant’s end. It has been mentioned in the application that the present Appellant filed a put up application before the Executing Court on 14.09.2009 and got bail on 23.09.2009. But the Appellant why at a belated stage i.e. the Appellant received noticed on 15.12.2009 and appeared on 14.09.2009, there is no such explanation in the context of delay for a period of about 10 months, the application is silent in explaining such long delay, has assigned no reason. There are several judgments passed by the Hon’ble National Commission that delay may be condoned but cogent and sufficient reasons has to be shown. But in the instant application there is no such convincing explanation given by the Appellant and the present appeal has been preferred in our opinion only to harass the decree holder. We shall never encourage such inaction and dilly-dalling practice on behalf of such mighty Company and in the instant application we are inclined to impose cost upon the Appellant.



Hence it is ordered that the application for condonation of delay be dismissed on contest with cost of 1000/- payable to the Complainants. The Appellant is directed to pay a sum of Rs.1000/- to the Complainants within a period of 30 days from the date of this judgment; in default the amount shall carry interest @10% p.a. for the default period. The appeal is dismissed without being admitted. The office is directed to send down the copy of this judgment to the Forum below and issue the same upon the recorded Advocates/Parties free of cost forthwith.

RP No. 131 Of 2009
(Arisen out of order dated 23/11/2009 of Case No EA/65/2009 of District South 24 Parganas DF, Alipore)
1. National Insurance Co. Ltd. Division XI, 19, R. N. Mukherjee Road. Kolkata-700001., Division XI, 19, R. N. Mukherjee Road. Kolkata-700001.
2. The Manager, The National Insurance Company Ltd. 3, Middleton Street, Kolkata- 71., 3, Middleton Street, Kolkata- 71.
....Appellant
Versus
1. Mrs. Bratati Sammadar alias Dutta. W/O Sri Biswajit Sammadar and D/O Sri Rama prasad Sengupta, P/84, Block-B, Lake Town, Rimjhim Apartment, Flat No. 11, 4th floor, Kolkata-700089. PS. Lake Town. Dist. North 24-Parganas and Presently at C/O Sri Rama Prasad Sengupta, Ram Krishna Pally, Sonarpur, 24-Parganas (S), Kolkata- 150. , W/O Sri Biswajit Sammadar and D/O Sri Rama prasad Sengupta, P/84, Block-B, Lake Town, Rimjhim Apartment, Flat No. 11, 4th floor, Kolkata-700089. PS. Lake Town. Dist. North 24-Parganas and Presently at C/O Sri Rama Prasad Sengupta, Ram Krishna Pally, Sonarpur, 24-Parganas (S), Kolkata- 150.

2. Sri Rama Prasad Sengupta. S/O Late Deba Prasad Sengupta, Ram Krishna Pally, Sonarpur, 24-Parganas (S) Kolkata- 700150. , S/O Late Deba Prasad Sengupta, Ram Krishna Pally, Sonarpur, 24-Parganas (S) Kolkata- 700150.

3. Standard Chartered Bank. (erstwhile ANZ Grindlays Bank). 19, Netaji Subash Bose Road. Kolkata- 700001. , 19, Netaji Subash Bose Road. Kolkata- 700001.

4. The Branch Manager, Shyambazar Branch. Standard Chartered Bank (erstwhile ANZ Grindlays Bank), 139/C, Bidhan Sarani, Kolkata- 700004. , Standard Chartered Bank (erstwhile ANZ Grindlays Bank), 139/C, Bidhan Sarani, Kolkata- 700004.

5. Medicare Service Club, Flat No. 2, Paul Mansions, 6B, Bishop Lefroy Road. Kolkata- 20. , Flat No. 2, Paul Mansions, 6B, Bishop Lefroy Road. Kolkata- 20.

6. Regional Manager, New India Assurance Co. Ltd. 4, Mango Lane, 2nd floor, Kolkata- 700001. , 4, Mango Lane, 2nd floor, Kolkata- 700001.

....Respondent

BEFORE :
HON'BLE JUSTICE ALOKE CHAKRABARTI , PRESIDENT
MR. A K RAY , Member
MRS. SILPI MAJUMDER , Member

PRESENT: Mr. A. K. Bandhopadhyay., Advocate for the Petitioner 1
None for the Respondent
*JUDGEMENT/ORDER

No. 1/17.12.2009.



HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.



Heard Mr. A. K. Bandhopadhyay, the Ld. Advocate for the Revision Petitioner in support of the revision. The subject matter of challenge in the present revision is order dated 23.11.2009 passed by the Forum below. It appears that the proceeding of the complaint case before the Forum was decided by final judgement dated 30.06.2009 whereby complaint was allowed and directions were given. Revisionist filed an application before the Forum below in the execution case and asked for stay of the execution proceeding stating that the JDR intended to prefer an appeal against the final judgement of the Forum. The impugned order has been passed granting liberty to the Revisionist to bring stay order from the State Commission. We have considered materials on record and we are convinced that the impugned order does not suffer from any irregularity as in execution case no stay order need be passed only on the contention that final judgement was intended to be challenged before the superior forum. in the circumstances we do not find any irregularity in the impugned order far less any jurisdictional error. In the circumstances we are unable to interfere with the impugned order.



Mr. Bandhopadhyay, the Ld. Advocate advanced contention on merit of the proceeding which we are unable to consider at this stage in the present revision keeping in mind the scope of the revision petition and the scope of the challenge as made in the revision petition. Accordingly the revision petition is dismissed. We make it clear that we have not decided any of the contention on merit of final judgement and the petitioner is entitled to prefer an appeal if it is otherwise maintainable.

Appeal No. 240/2009.

Date of Decision 30.12.2009.
In the matter of:

National Insurance Company Ltd. through its

Divisional Manager, Himland Hotel, Shimla-1, HP.

… … Appellant.

Versus

Sh. Goverdhan Singh S/o Sh. Sangat Ram

R/o Village. Khiuri, PO Rajgarh, Tehsil Sadar,

District Mandi, HP.

… … Respondent.



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

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting? No.



For the Appellant.: None.



For the Respondent. None.

O R D E R

Justice Arun Kumar Goel (Retd.), President (Oral).

This appeal is directed against the order passed by District Forum, Mandi in Consumer Complaint No. 205/2008, decided on 20.5.2009. By means of impugned order, while allowing the complaint appellant has been directed to indemnify the respondent in the sum of Rs. 2,35,420/- alongwith interest @ 9 % per annum from the date of filing of the complaint (i.e. 8.8.2008), till the date of realization subject to deposit of salvage, failing which appellant has been held to be entitled to deduct Rs. 2,000/-. Appellant has also been directed to pay Rs. 10,000/- as compensation on account of harassment, besides Rs. 5,000/- as costs. Hence this appeal.

2. Perusal of the grounds of appeal shows, that the main thrust of the appellant is, that vehicle was being plied in violation of the provisions of Motor Vehicles Act, 1988 particularly its Section 70 and 72. When the vehicle in question met with accident, it was permitted to ply on Jahal-Chailchowk route only. Whereas accident in this case had not taken place on this route. Vehicle met with accident at village Salahar. This was the ground of repudiating the claim of the respondent, as also while contesting the complaint before the District Forum below. And this is also the ground while maintaining this appeal. In addition to this according to the appellant, compensation and cost of litigation is on higher side even if it be assumed that it is liable to compensate the appellant.

3. Brief facts giving rise to this appeal are, that vehicle bearing registration No HP-32B-6315 was insured under a valid policy of insurance when it met with accident on 12.2.2007 As a result of accident it was badly damaged. FIR, Annexure C-3 was lodged at the concerned police station on 12.2.2007. According to the respondent he got the vehicle repaired and incurred expenditure of Rs. 4,32,436/- in making it roadworthy. Repair according to him was got carried out at the instance of the appellant. He had handed over the bills against receipt to the appellant. He had attached copies of the bills Annexure C-4 (i) to C-4 (viii). Instead of settling the amount, file was closed as “No Claim”, by the appellant. This resulted in filing of the complaint alleging deficiency in service on the part of the appellant.

4. When put to notice stand of the appellant while contesting the complaint was as briefly noted hereinabove. District Forum bellow after hearing the parties and taking note of the evidence produced by them has allowed the compensation as assessed by the surveyor appointed by the appellant vide report Annexure O-1.

5. In order to succeed on its defence that the vehicle was not plying on the authorized route, i.e. Jahal-Chailchowk and or village Salahar does not fall on this route, appellant was required to lead acceptable evidence. But there is no such evidence on record produced by the appellant.

6. In this behalf we may notice, that Annexure O (vii) is the copy of the route permit. It only speaks of route or area Jahal-Chailchowk, O-3R/T. Affidavit of Rajinder Kumar surveyor and loss assessor is also there who has stated amongst other things, that the place where accident had taken place was not valid for operation as per route permit. According to him he had highlighted this fact in his report dated 10.5.2007. We feel that no benefit can be derived by the appellant either from the affidavit of Mr. Rajinder Kumar Sharma which is at page 59, or the copy of the route permit Annexure O(vii). Copies of these documents are at pages 59-60 of the complaint file, and as already observed it was for the appellant to have shown that Salahar, the site of accident did not fall on the route, granted by the Regional, Transport Authority, Mandi in favour of the respondent for plying the vehicle, i.e. on Jahal-Chailchowk road.

7. Besides this, District Forum below in our opinion has correctly come to the conclusion while awarding compensation on the basis of the report of the surveyor who according to the appellant, was appointed to assess the loss after receipt of information regarding accident in question. Another document is also relied upon by the appellant in support of its plea that the vehicle was not plying on the authorized route. This is affidavit of Mr. Mohinder Kumar Sharma, surveyor and loss assessor. According to him route area of operation mentioned in the route permit was Jahal-Chailchowk, whereas vehicle met with accident at Salahar which is in between Chailchowk-Kanda-Janjheli and it is clearly a different route. We may at the risk of repetition mention here that the best person to have stated something in this behalf was from the office of Regional Transport Officer, at Mandi. No such attempt appears to have been made by the appellant to produce any evidence in order to succeed on its defence, as well as to accept its plea as noted in this appeal.

Thus looking to the overall circumstances of this case, we are of the opinion that there is no merit in this appeal which is accordingly dismissed, leaving the parties to bear their own costs, while upholding the order passed by District Forum, Mandi in Consumer Complaint No. 205/2008 on 20.5.2009.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Office is directed to send a copy of this Order to the parties free of cost as per rules.

F.A.No.716/2006 against C.D.No.31/2004, Dist. Forum-I,Hyderabad.

Between:

National Insurance Company Ltd.,

Divisional Office, II Floor,

2-68/6, Ferozguda,

Secunderabad – 500 007,

Rep. by its Branch Manager. …Appellant/

Opp.party

And

The Singareni Colleries Company Ltd.,

(Government Company)

having its Regd. Office

at Kothagudem, Khammam Dist.

and its Admn. Office at Meher Manzil,

Singareni Bhavan, Red Hills,

Nampally, Hyderabad, rep. by

General Manager, Bellampally. …Respondent/

Complainant

Counsel for the Appellant : M/s. M.Jeevan Reddy

Counsel for the Respondent : M/s. J.Prabhakar

CORAM : SMT M.SHREESHA, HON’BLE MEMBER,

AND

SRI K.SATYANAND, HON’BLE MEMBER



THURSDAY, THE THIRD DAY OF DECEMBER,

TWO THOUSAND NINE.



Oral Order Per Smt. M.Shreesha , Hon’ble Member)


Aggrieved by the order in C.C.No.31/2004 on the file of District Forum-1, Hyderabad, the opposite party preferred this appeal.

The main case of the complainant is that the opposite party issued policy for various vehicles belonging to the complainant, the validity of the policy being 17.11.1995 to 16.11.1996 and there was a fire accident and the complainant made the claim for Rs.19,88,659/-. It is the case of the opposite party that the Government of India has set up Permanent Machinery of Arbitration (PMA) in Department of Public Enterprises (DPE) under Ministry of Industries, Govt. of India to settle and adjudicate the disputes and the complainant ought to have approached and availed this institution for adjudication before approaching this Forum.

Thereafter the opposite party filed I.A.No508/2005 seeking direction to take up the preliminary issue whether the C.D. is maintainable or not. They challenged the maintainability of the C.D. on the ground that the alleged dispute is between the two public sector undertakings and the complainant did not refer the matter to the Committee constituted by the Govt. of India of Ministry of Industries and obtained clearance prior to approaching this Commission and hence the C.D. is not maintainable as the necessary permission has not been taken prior to filing of the C.D.



District Forum passed an order that the petition was filed after the case was posted for arguments only to drag the proceedings and that this dispute need not be referred to any such Committee.



Aggrieved by this order the opposite party preferred R.P.3166/2005 before the National Commission. The National Commission vide its order dt.10.1.2006 issued notice returnable on 20.4.2006 and in the meantime stay of the proceedings before the District Forum. We observe from the record that C.D.No.31/2004 has been disposed of by District Forum-I, Hyderabad on 19.4.2006 which is subsequent to the say order given by the National Commission. The principal ground on which the appellant assailed the order of the District Forum is that the District Forum disposed of the matter while the matter was under stay that remained in operation beyond the date of the order. This according to the appellant vitiates the impugned order itself . There can be no gain saying the fact that the District Forum cannot proceed with the matter and dispose of the C.D. while the stay was under operation. Here, in this case, the fact remains that there is no material on record to show that the District Forum had deliberately done or resorted to such recourse of disposing of the C.D. in the face of any stay order. However it is abundantly clear from the record that the order under appeal was passed while the stay was still in operation. Such an order turns out to be a nullity though the District Forum cannot be faulted on the ground that it had done deliberately. In view of this infirmity in the proceedings, the order of the District Forum is liable to be set aside. It does not mean that it would preclude any proper adjudication of the matter on the merits. For these reasons even while setting aside the order of the District Forum the matter must be remanded to the District Forum to decide the case afresh on merits after giving opportunity to both sides . Accordingly appeal is allowed remanding the matter to the District Forum to make denovo enquiry on merits after giving due opportunity to both sides. It shall dispose of the mater within three months after receipt of this order . There shall be no order as to costs in the circumstances of the case. Both sides shall appear before the District Forum on 22.12.2009 without insisting upon any further notice in the matter and cooperating the District Forum to dispose of the matter with utmost discharge as indicated .

Appeal No. 298/2009.

Date of Decision 1.1.2010.
In the matter of:

Smt. Rukmani Devi Wd/o Sh. Durga Nand Verma,

R/o Village Fanal, PO Kuhinal, Tehsil Kotkhai, Distt. Shimla, HP.

… … Appellant.

Versus

1. National Insurance Company through its Divisional

Manager, Divisional Office, Himland Hotel, Tehsil

& District Shimla, HP;

2. The State of Himachal Pradesh through Secretary (Education)

to the government of Himachal Pradesh, Shimla 171 002, HP;

3. The Director, Primary Education, Himachal Pradesh, Shimla 171 003, HP;

4. The Block Primary Education, Officer, Block Deha, Tehsil Theog, Distt. Shimla, HP.

… … Respondents.

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

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.

Whether approved for reporting? Yes.

For the Appellant.: Mr. Raman Jamalta, Advocate vice counsel

Mr. Ranvir Chauhan, Advocate.

For the Respondent No.1. Dr. Lalit K. Sharma, Advocate.

For the Respondents 2 to 4 Mr. L.S. Negi, ADA.

O R D E R

Justice Arun Kumar Goel (Retd.), President (Oral).

Appellant is aggrieved from the order dated 20.7.2009, passed by District Forum Shimla, in Consumer Complaint No. 244/2003. By means of impugned order, complaint filed by the appellant has been dismissed, hence this appeal.

2. Late husband of the appellant, Shri Durga Nand was working as Headmaster in Government Primary School, Chawai, (Deha Block), Tehsil Theog, District Shimla. According to the appellant, respondents No. 2 to 4 with a view to provide insurance cover to its staff had got the deceased alongwith other persons insured with respondent No.1 to the extent of Rs. 2 lacs in case of accidental death.

3. Deceased died as a result of accident according to the appellant, and daily diary report to that effect was lodged. This fact is mentioned by respondent No.4 in his communication dated 16.4.2002, Annexure C-7. This is a letter addressed to the Divisional Manager of respondent No.1. Accident had taken place on 2.2.2001 as a result of which the deceased sustained grievous injuries and ultimately he died on 5.5.2001. Premium had been deducted out of his salary is clear from the certificates issued by Block Primary Education Officer. Documents to this effect are at pages 47 and 49 of the complaint file. Appellant had submitted copy of FIR, discharge slip issued by IGMC Shimla, MLC, and certificate of first aid issued by Civil Hospital Kotkhai, certificate from Tehsildar regarding amount disbursed through Sub Divisional Officer and death certificate, to the Block Primary Education Officer, vide Annexure C-6.

4. Since claim was not settled appellant got legal notice issued vide Annexure C-10, but without any consequence. Alleging deficiency in service, Complaint No. 244/2003 was filed by her. Stand of the respondent No.1 while contesting this complaint was, that it was not maintainable as the appellant was not a consumer under Consumer Protection Act, 1986 and after the claim was examined under the policy, deficiency of service was not there, and repudiation of claim was justified. According to it since post mortem report was not furnished after he died on 5.5.2001, complaint was liable to be dismissed. Further according to respondent No.1 it was for the legal heirs to justify the stand that deceased had died as a result of accident. This is the pith and substance of the reply filed by the respondent.

5. On the other hand respondents 2 to 4 did not dispute the death of the deceased, Sh. Durga Nand Verma as a result of accident and also premium having deposited qua the deceased. Circumstances whereunder delay occurred in submission of claim were also explained in their reply by them. District Forum below after hearing the parties dismissed the complaint on the sole ground that in terms of the policy death certificate was required to be furnished by the appellant, that having not been submitted, plea raised by learned counsel for respondent No.1 was upheld, and consequently complaint of the appellant was turned down.

6. Mr. Jamalta learned counsel for the appellant submitted that the District Forum below fell into error by dismissing the complaint solely on the ground, that the post mortem certificate had not been submitted. According to him death is not in dispute. What is disputed according to him was that there is nothing on record to suggest that as a result of accident on 2.2.2001 near Gumma, and after he had been admitted in IGMC at Shimla, the injuries proved to be fatal. This ground is wholly untenable in law, as well as in the facts and circumstances of this case.

7. With a view to advance the case of the appellant, learned counsel for the appellant drew our attention to the copy of the order passed by MACT-II, Shimla in MAC No. 136-S/2 of 2001, decided on 30.8.2005, titled as Rumkmani and others Vs. Managing Director, Himachal Road Transport Corporation (HRTC) and another. This case had arisen out of the accident that was there on 2.2.2001, wherein Durga Nand deceased had sustained injuries which according to claimants in this case proved fatal. It is further case set out by the claimants before the MACT, that injured was taken to Civil Hospital Kotkhai, and from there he was referred to IGMC, Shimla. He was operated upon and subsequently discharged in a critical condition on 12.2.2001. He ultimately died on account of said injuries on 5.5.2001. In this background complaint was allowed by the MACT-II, Shimla. HRTC challenged the order of the MACT-II, Shimla in FAO No. 472/2005 before the Hon’ble High Court of Himachal Pradesh. This matter was compromised in Lok Adalat. Copy of the order passed by Hon’ble High Court is at pages 125 to 129, and of the MACT-II, Shimla at pages 131 to 145.

8. For the reasons to be recorded hereinafter, we are of the view that mere non submission of the post mortem report of deceased-insured could not have been made the ground to reject the insurance claim of the appellant in the facts and circumstances of the case, particularly keeping in view the order of the MACT-II, Shimla as well as of the Hon’ble High Court passed in Lok Adalat referred to hereinabove.

9. In this behalf we specifically called upon Dr. Sharma, learned counsel for the respondent No.1 as to what difference it would made even if post mortem report had been submitted. Per him this is the requirement of the insurance policy subject to which risk was covered. In respect of the documents attached with the complaint, referred to hereinabove we again asked him as to what he has to say regarding certificate particularly Annexure C-7, dated 16.4.2002 issued by the Block Primary Education Officer wherein the death of Shri Durga Nand Verma is stated to be due to accident and certificate to that effect issued by Tehsildar confirming the factum of accident having been also submitted. Dr. Sharma persisted with vehemence that his client could only processed the case after receipt of documents as mentioned in the insurance policy.

10. This approach, we feel too pedantic besides being too technical. This according to us negates the purpose of obtaining insurance policy. In case of the present nature as also keeping in view the stand of respondents 2 to 4 in our opinion this appeal deserves to be allowed.

11. Accident having taken place on 2.2.2001 and to this effect there is overwhelming evidence on record which has remained uncontested, as well as uncontroverted. Likewise the deceased having been shifted to IGMC, Shimla with grievous injuries where he was attended upon and discharged, is again established from the evidence on the complaint. Suffice it to say that no doubt post mortem should have been filed by the authorities concerned, we have no doubt in our mind in this behalf that if the appellant was aware that for want of the post mortem report she would be dragged to litigation by respondent No.1, and its non filing would be fatal to her claim, she would have certainly done the needful. We may mention here that respondent No.1 ought to have explained to respondents 2 to 4, that the policy conditions subject to which insurance was undertaken should have been explained to all the beneficiaries who were covered under the insurance policy. Therefore this is an additional ground to reject the plea of Dr. Sharma that until post mortem report was produced his client was not bound to pay the sum insured.

12. On an overall examination of the whole case we are of the view that impugned order passed by District Forum below deserves to be set aside. Ordered accordingly.

13. No other point was urged.

In view of the aforesaid discussion this appeal is allowed while setting aside the order passed by District Forum Shimla, in Consumer Complaint No. 244/2003, dated 20.7.2009 and consequently allowing the said complaint. As a result of it, we hold respondent No1 liable for payment of Rs. 2 lacs, alongwith interest @ 9% per annum from the date of filing of the complaint, i.e. 28.5.2003 till the date of payment/deposit whichever is earlier alongwith Rs. 5000/- as cost of this appeal as well as of complaint.

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

FA 1568/2007 against CC No. 334/2006 on the file of the

District Forum II, Visakhapatnam

Between:

Yandamuri Murali Krishna,

S/o Veerabhadram,

Aged 51 years,

Old address, C/o Krishna Radio Centre,

D.No.33/47, Abids Centre, Narsipatnam post,

Visakhapatnam District
Present address :

Flat No.303, Arundhathinilayam Apartments,

Firoz Guda, Balanagar,

Besides Trinetra Super Market,

Hyderabad -11 …. Appellant/complainant

And
The National Insurance Company Limited

Rep. by its Divisional Manager,

Divisional Office II

Situated at Beside ICICI Bank Ltd,

Dwaraka Nagar

Visakhapatnam -16 .. Respondent/opp. party





Counsel for the Appellant : Mr. K. Yadagiri Reddy

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





FA 271/2009 against CC No. 334/2006 on the file of the

District Forum II, Visakhapatnam

Between:

The National Insurance Company Limited

Rep. by its Divisional Manager,

Divisional Office II

Situated at Beside ICICI Bank Ltd,

Dwaraka Nagar

Visakhapatnam -16 by its Authorized signatory,

Manager, Regional office, Secunderabad .. Appellant/opposite party

And

Yandamuri Murali Krishna,

S/o Veerabhadram, Hindu,

Aged 50 years, residing

At C/o Krishna Radio Centre,

D.No. 33-47, Abid Centre,

Narsipatnam post

Visakhapatnam – 16 .. Respondent/complainant


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

Counsel for the Respondent : M/s. V. Gourisankara Rao


CORAM :

Smt. M. Shresha …… Hon’ble Member
And
Sri K. Satyanand …… Hon’ble Member

Monday, the Eighteenth Day of January, Two Thousand Ten
Oral order : ( as per M. Shreesha, Hon’ble Member )

Aggrieved by the order in CC 334/2006 on the file of the District Forum II, Visakhapatnam, the complainant preferred appeal in FA 1568/2007 and the opposite party preferred FA 271/2009. Since both appeals arose out of same complaint, they are being disposed of by this Common order.



The brief facts as stated in the complaint are that the complainant is the owner of Mahindra Scorpio Turbo 9 seater vehicle and insured it with the opposite party on 07.02.2006 for an amount of Rs.4,93,894/- covering the period from 07.02.2006 to 06.02.2007. On 16.02.2006 the vehicle met with an accident and complaint was registered vide Cr. No.21/2006 and the accident was also informed to the opposite party and the vehicle was entrusted to the authorized repairer of Mahindra, i.e., Automotive Manufacturers Pvt. Ltd. The complainant submits that the repairer raised bill for Rs.8,65,935/- including labour charges and the opposite party delayed settlement of the claim on the ground that its surveyor should assess the loss. Thereafter he got issued legal notice dated 1.5.2006 for which the opposite party replied directing him to approach the surveyor by way of letter dated 16.05.2006. The complainant submits that the repairer was pressurizing him to give instructions either to attend repairs or to pay demurrages for keeping the vehicle in their premises. Hence the complaint seeking direction to the opposite party to pay Rs.4,93,894/- with interest and damages of Rs.1,20,000/- for deficiency in service and compensation of Rs.50,000/- towards mental agony and costs.

The opposite party filed counter admitting that the vehicle was insured with them from 07.02.2006 to 06.02.2007 for an amount of Rs.4,93,874/-. They also admit that they received information from the complainant that the vehicle met with an accident on 16.02.2006. A surveyor Mr. A. A. Khan was deputed for assessment of the loss and the surveyor advised the insured and the repairer to go ahead with repairs vide registered letter dated 22.03.2006. The opposite party submits that the surveyor informed the insured vide letter dated 27.03.2006 that the claim cannot be considered on total loss basis, since the net liability on repair basis is not exceeding 75% of IDV, i.e., Rs.4.90 lakhs and therefore advised the insured to get clearance to repairer to commence repairs. The opposite party has also addressed a letter dated 05.04.2006 to the insured to cooperate with the surveyor for assessing the loss by arranging for dismantling the vehicle. Instead of cooperating with the surveyor, the complainant got issued a legal notice, for which, the opposite party replied on 16.05.2006 requesting him to go ahead with the repairs under intimation to the surveyor. The complainant did not send bills of repairs. The opposite party also contend that they did not repudiate the claim of the complainant and only requested the complainant to submit the bills and state that they cannot pay Rs.8,65,935/- which is the estimated quotation submitted by the complainant and hence the claim was under process during which time the complainant gotissued a legal notice. Therefore, the complaint is premature and there is no deficiency in service on their behalf.



The District Forum, based on the evidence adduced on record, i.e. Ex A1 to A11 along with evidence affidavit on behalf of the complainant and Ex B1 and B2 along with evidence affidavit on behalf of the opposite party, allowed the complaint directing the opposite party to pay Rs.4,93,894/- with interest @ 9% pa. from 16.02.2006 to the date of actual realization, compensation of Rs.50,000/- and costs of Rs.5000/- to the complainant. Time for compliance one month. The complainant is directed to surrender the wreckage of the ill fated vehicle in toto at any of the branches of the opposite party insurance Company in Andhra Pradesh within a week from the date of the order and submit the Forum a necessary acknowledgment obtained from the opposite party in proof of delivery of the wreckage of the ill-fated vehicle to the opposite party.



Aggrieved by the said order, the complainant preferred FA 1568/2007 and the opposite party preferred FA 271/2009. The complainant filed written arguments.



The facts not in dispute are that the complainant is the absolute owner of the Mahindra Scorpio Turbo 9 seater and insured it with the opposite party for Rs.4,93,894/- ( Rs.4,93,874/- ) and the policy is valid from 07.02.2006 to 06.02.2007. It is also not in dispute that the vehicle met with an accident on 16.02.2006 and the case was registered vide Cr. No.21/2006. It is the complainant’s case that he intimated the opposite party immediately after the accident and handed over the vehicle on 20.02.2006 to Automotive Manufacturers Pvt. Ltd, Secunderabad, who is the authorized repairer of Mahindra Company.



The learned counsel for the appellant/complainant submitted that as per Ex. A8 estimated quotation, the repairer raised quotation for Rs.8,65,935/- but the surveyor did not come forward to assess the loss stating that the vehicle should be dismantled. It is the complainant’s case that Automotive Manufacturers Private Limited was pressurizing the complainant for approval for carrying out repairs and also to pay necessary demurrages/charges for having kept the vehicle by using their premises. Ex. A5 is the legal notice dated 1.5.2006 addressed by the complainant to the opposite party stating as per the instructions of the opposite party the vehicle was kept at Automotive Manufacturers Private Limited for valuation purpose. Ex. A6 is the reply dated 16.5.2006 by the Insurance Company to the complainant stating that vide registered letter dated 22.03.2006 advised repairer to go ahead with repairs. In this reply notice also the complainant was requested to send the repair bills and informed that unless the vehicle is dismantled and repair bills submitted, it is not possible to process the claim further. Ex. A-7 is the letter addressed by the complainant to the surveyor requesting him to send the final report in view of the damages and loss assessed.

It is the case of the appellant/opposite party that the complainant is entitled to an amount of Rs.3,45,000/- as per the norms which is 75% of the value of the insured vehicle but the complainant is insisting for settlement of claim on total loss basis to the tune of Rs.4,93,874/-. The learned counsel for the Insurance Company contended that as the vehicle is damaged the settlement of claim on total loss basis of 75% of the value of the vehicle only can be considered and therefore the District Forum has erred in awarding Rs.4,93,894/- which is the entire insured value of the vehicle. We observe from the record that no such rule is placed before us to state that if there is any claim for a new vehicle on total loss basis, 75% of the value only is to be paid. In the absence of any such rule/terms and conditions placed before us, we are of the considered view that an amount of Rs.4,93,894/-, which is the insured value, has been rightly awarded by the District Forum since it is a total loss. We also take into consideration that the estimated quotation given by the authorized repairer is Rs.8,65,935/-. Hence, taking into consideration that the opposite party did not place before us as how they are entitled to deduct 25% and pay 75% when the loss is total, we are of the considered view that the complainant is entitled to claim the amount of Rs.4,93,894/-.



The learned counsel for the appellant/ complainant submitted that the complainant is entitled to further damages since there was loss of earning, payments made to financiers, premia amounts paid to the complainant towards taxes towards taxes, penal charges paid to the bank etc. Since the District Forum has already awarded compensation of Rs.50,000/-, apart from awarding interest there is no justification for awarding any further amount towards compensation.

The learned counsel for the appellant/complainant further submitted that there is a direction from the District Forum to hand over the vehicle to the opposite party by the repairer, i.e., Automotive Manufacturers Private Limited. The Automotive Manufacturers Private Limited is estimating demurrage charges of Rs.150/- per day for having kept the vehicle in their premises. This itself comes to a tune of Rs. One lakh and the complainant is not to collect the vehicle from the repairer. We modify the order of the District Forum and direct the Insurance Company to collect the vehicle from Automotive Manufacturers Private limited. It is open to the Automotive Manufacturers Private Limited which is not a party before the District Forum to seek redressal in appropriate Forum if so advised.

FA : 1568/2007 : In the result, the appeal is allowed in part modifying the order of the District Forum with respect to handing over of the vehicle only, i.e., the Insurance Company is directed to take the vehicle from Automotive Manufacturers Private Limited

FA : 271/2009 : In the result, the appeal is dismissed and the order of the District Forum is modified with the aforementioned direction. Time for compliance four weeks.

First Appeal No. 122/2007
(Arisen out of order dated in Case No. of District Kollam)
1. Sunil Kumar Kuttiyil Veedu, Kilikkolloor, T.K.M.C..P.O. , Karikode, Kollam
2. Sheena Kuttiyil Veedu, Kilikkolloor, T.K.M.C.PO, Karikode, Kollam.
Kollam
Kerala
....Appellant
Versus
1. Ravindran Sindu Bhavan,T.K.M.C.PO, Karikode, Kollam

2. Maruthi Insurance National Insurance Co.Ltd, Divisional Office, TVM
TVm
Kerala

....Respondent

BEFORE :

PRESENT: None for the Appellant
None for the Respondent
*JUDGEMENT/ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAD, THIRUVANANTHAPURAM



APPEAL NO.122/2007
JUDGMENT DATED: 18.1.2010
PRESENT

JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT

SRI.M.K.ABDULLA SONA : MEMBER



1. Sunilkumar, Kuttiyil veedu, : APPELLANTS

Kilikollur,

T.K.M.C. P.O.,Karicode, Kollam.

2. Sheena, W/o sunilkumar,

-do-do-

(By Adv.Kulathoor S.V.Premakumaran Nair & C.S.Rajmohan)

vs.

1. Ravindran, Sindhu Bhavan, :RESPONDENTS

T.K.M.C. P.O., Karicode, Kollam.

(By Adv.Prassannkumar Nair)

2. Maruthi Insurance, C/o National Insurance Co.Ltd.,

Divisional Office, Thiruvananthpauram.

(By Adv.Molamma Manuel & S.Sunil Narayanan)

JUDGMENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT


Appellants are the opposite parties in CC.199/2006 in the file of CDRF, Kollam. The appellants are under orders to pay a sum of Rs.16,353/- etc. to the complainant.

2. The matter relates to the alleged deficiency in service on the part of the appellants in not returning the amount paid by the complainant after the vehicle that belonged to the appellants were taken by the complainant allegedly giving Rs.25000/- as rent advance and Rs.1000/- as rental per day. The case is that on the first day itself the vehicle hit on a wall and that the appellants repaired the vehicle and got the amount reimbursed by the Insurance Company but did not return the amount paid by the complainant as advance. It is contended that the complainant is the uncle of the 1st appellant which is allegedly suppressed by the complainant. The document produced which is the photocopy of the alleged agreement is denied by the appellants and it is contented the same is a fabricated one.

3.The evidence adduced consisted of PWs 1 to 3 DW1; Exts.P1 to P3, D1 and D2.

4. We find the matter has to be decided on the basis of appreciation of the evidence adduced in the absence of proper documents especially as Ext.P1 the alleged agreement is not signed by the opposite parties and the genuineness of the same is disputed. The Forum has not considered/discussed the evidence adduced at all. In the circumstance we find that the matter requires reconsideration as the judgment should reflect a proper discussion of the evidence adduced. There was no representation for the complainant/respondent also before this Commission. In the circumstance order of the Forum is setaside. The Forum is directed to issue notice to the complainant and dispose of the matter by a considered order.

The case stands posted before the Forum on 6.3.2010.

Office is directed to forward the LCR to the Forum urgently along with copy of this order.

First Appeal No. 681/2005
(Arisen out of order dated 06/04/2005 in Case No. First Appeal No. 159/2003 of District Kollam)
1. The Manager National Insurance Company Limited, Kollam Division.
....Appellant
Versus
1. Rajeevan Kinattummoodu, Alappattuthura, Alappad, Kollam Dt.

....Respondent

BEFORE :
HONORABLE JUSTICE SHRI.K.R.UDAYABHANU , PRESIDENT

PRESENT: None for the Appellant
None for the Respondent
*JUDGEMENT/ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM

APPEAL 681/05
JUDGMENT DATED 5.1.2010

PRESENT

JUSTICE SHRI.K.R.UDAYABHANU -- PRESIDENT

The manager
National Insurance Co.Ltd.,
Kollam District. -- APPELLANT
(By Adv.Saji Isaac.K.J)

Vs.
1. Rajeevan,
Kinattummoodu, Alappaattuthura,
Alappad, Kollam District.
(By K.P.Jabbar & Associate)
2. The Secretary, -- RESPONDENTS
Alappad Fishermen Welfare Co-operative
Society, Cheriyazhiekkal (PO)
Karunagappally.

JUDGMENT

JUSTICE SHRI.K.R.UDAYABHANU,PRESIDENT

The appellant is the first opposite party/National Insurance Company Ltd. in OP.159/2003 in the file of CDRF, Kollam. The appellant is under orders to pay the complainant Rs.50,000/- with 9% interest and Rs.5000/- as compensation and Rs.1000/- as costs.
2. It is the case of the complainant that he is a Member of Alappad Fishermen Welfare Co-operative Society and he was insured with the first opposite party and has been paying the premium regularly. On 30.1.01 while engaged in fishing, he sustained serious injury to his right hand and the same has become totally defunct. The claim was repudiated.
3. The first opposite party/appellant has contended that the second opposite party ie; Secretary, Alappad Fishermen Welfare Co-operative Society has not made any request to settle the claim and that no policy details was furnished. It is also contended that the appellant could not trace out the policy in favour of the second opposite party, wherein the name of the complainant is allegedly mentioned.
4. The evidence adduced consisted of the testimony of PW1, DW1 and Exts.P1 to P9.
5. I find that the relevant records from the Project Officer, Matsyafed, Kollam were summoned. He has produced the particulars with respect to the names of the insured wherein the name of the complainant is mentioned as serial Item No.255. The copy of the master policy issued has been produced by the appellant along with the appeal memorandum. Ext.B1 certificate issued by Fishermen Welfare Co-operative Society certifies that the complainant has been paying the premium regularly to the office of the second opposite party. I find that the appellant also would be having the relevant records. The appellant has not produced any documents that would show that the name of the complainant is not included in the policy schedule that contain the list of persons insured. In the circumstance, I find that the contention of the appellant that the complainant is not covered under the policy cannot be sustained.
6. The complainant has produced the records and the same considered order by the Forum. There is no illegality in the order of the Forum in this regard. There is no contention in the appeal memorandum with respect to the amount of compensation ordered. In the circumstances, we find that there is no reason to interfere in the order of the Forum. The order of the Forum is sustained. The appeal is dismissed.
The appellant is directed to pay the amount to the complainant within 3 months from the date of receipt of this order failing which the complainant would be entitled with interest at 12% from the date of this order.

Consumer Case No.-61 /2009

Shila Devi w/o Brij Kishor Prasad

R/o H.S.C.L. Colony, Co-opertive Colony, Telgaria More, Chas, Dist.- Bokaro.

Vs.

The Divisional Manager,

National Insurance Co. Ltd., Sector-1, Bokaro Steel City, Dist.- Bokaro.

Present-

S.M. Alam, President

Sri Vijay Bahadur Singh, Member

Shabnam Praveen, Member

Date of Judgment- 20/11/2009

Date of Case filing-27/07/2009

-: Judgment:-

The complainant has filed this Consumer Case

against the opposite party for payment of Rs. 6733/- claim amount for treatment, besides Rs. 25000/- as compensation and Rs. 10000/- cost of litigation.

2 Brief fact of the case is that the complainant Shila Devi was admitted in Maa Nursing Home on 07.09.2008 for the treatment of burning urination and stress in continuance since 12 days. Due to non improvement at Maa Nursing Home she was referred to Bokaro General Hopsital on 08.09.2009. At Bokaro General Hospital investigation and treatment was given on 09.09.2008 and the treatment continued till 08.11.2009. The receipt of admission for BGH Pathological diagnosis and medicines purchased by the complainant worth Rs. 6733/- was claim for reimbursement on 27.11.2008. The opposite party having its office at Sector I/B has not passed the bill asking for the bill incorrect at Maa Nursing Home. The opposite party several times informed and also through letters that Maa Nursing Home has not given adequate treatment and relief and has not charged any amount. But the Divisional Manager is building pressure to submit false bills. The opposite party has frame the complaint mental and physically. The complainant has also sent a legal notice to the Divisional Manager on 09.05.2009 and the replied of the said legal notice, the Divisional Manager has alleged the complainant to submit false bills saying the whole bill to be unbelievable. The B G H is a reputed hospital and the treatment could have been taken there without refer also. The Divisional Manager has behaved intentionally to harass and defame in all manner. But the complainant has not been paid by the opposite party on account of which there is deficiency on the part of the opposite party and as such, the complainant is entitled to get the aforesaid amounts from the opposite party.

3 In spite of issuance of notice, the opposite party neither appeared nor filed any written statement and as such the proceeding of the present case preceded Ex-parte.

4 The complainant was heard. The opposite party failed to argue the case on its behalf. Upon perusal of the case records and documents available in the case records, it is observed that the claimant was insured with the opposite party under Hospitalization and domiciliary hospitalization benefit policy. The claim of the complainant against medical treatment has not been settled and paid by the opposite party.

5 It is further observed that in voices/ cash memo/ are available in the case records in respect of the complainant’s treatment are as bellow-

i) Cash Receipt No. 60568 dated 08.11.2008

of BGH Rs. 100/-

ii) Case Memo No. 958 dated 08.11.2008 of X-ray house

and Pathological Lab 72 co-operative Colony

B.S.City Rs.320/

iii) Cash Memo No. 8513 dated 11.11.08 of

Friend Medical Hall, City Centre, B.S.City Rs. 807/-

iv) Cash Memo 8582 dated 15.11.08 Rs. 807/-

v) BGH cash receipt no. 50452 dated 09.09.08 Rs.100/-

vi) Friends Medical cash Memo No.6120

dated 10.09.2008 Rs.43.50/

vii) Friends medical cash Memo No.6366

dated 16.09.2008 Rs.146.20/

viii) Receipt no. 3733 dated 23.09.2008 of

Dr. Lal Pathlabs Pvt. Ltd.City Centre, B.S.City Rs. 2250/-

Total Rs.4573.70/-

6 In view of the above we hold the opposite party negligent and deficient in service towards the complainant on account of none payment of her medical treatment amount detailed in above para. The opposite party is therefore, held liable to pay the same to the complainant.

7 Under the facts and circumstances of the case, the opposite party Divisional Manager, National Insurance Co. Ltd. Sector- 1, Bokaro Steel City is directed to pay Rs. 4573.70 (Rs. Four thousand five hundred seventy three and paise seventy) only to the complainant within 30 days from the date of this order. The above opposite party is also directed to pay Rs. 200/- (Rs. Tow hundred) only to the complainant within 30 days from the date of this order.

C.D.CASE No. 27/2009

Subhrarani Jena, aged about 33 yrs,

Wife of Sarat Kumar Jena,

Of Vill: Karadapal, Po: Angara,

Dist- Keonjhar …….. Complainant

-VERSUS-

1) National Insurance Co. Ltd.,

Represented through its Manager

National Insurance Co. Ltd,

At/Po:P.S jajpur Road

Dist- Jajpur.



2) The Asst. Secretary,

Office of the Insurance Company Ombudsman 62

Forest Part, Bhubneswar-09, Odisha. ……… Opp. Parties.

Advocate for the complainant: Rajkishore Bhuyan,

Advocate for the Opp. Party : Nrutya Gopal Das.

Present : Smt. Raseswari Mohanty, I/C President,

Sri Subash Ch. Sahoo, Member.



DATE OF HEARING:19.10.09 DATE OF ORDER:19.11.2009



SRI SUBASH CH. SAHOO , MEMBER :-



The brief facts of the case is that the complainant in order to maintain her family by Transport business and engaging the unemployed relatives and family members, the complainant purchased one Ashok Leyland Truck, bearing No.OR-E-8878 which was insured with the opp. party No.1 having policy No. 163101/31/04/6300005587, dt 14.01.05 to 13.01.06. During valid period of Insurance, the vehicle of the complainant met with an accident on 14.02.05.Soon after the accident, the complainant has intimated the facts to the knowledge of the Opp. Party No.1. Along with one claim form and the opp. party deputed one surveyor who inspected the damaged vehicle. The complainant got the vehicle repaired and spent few days the opp. party No.1 informed the complainant that due to non-submission of required documents, the claim of the complainant was closed on 22.02.2007.



Thereafter the complainant approached to Opp. party No.2 and Opp. party No.2 dismissed the claim on 12.02.09 on the ground of non-submission of documents.



The complainant approached this Forum for a direction to the opp.Party to pay Rs.1,40,000/- and cost of Rs.50,000/- for mental agony. In support of the claim, the complainant filed the copy of letters and copy of order of opp.party No.2 and bills & vouchers.



After service of notice the opp.party no.1 entered appearance through its counsel and filed written version stating the plea that the Forum has no jurisdiction to hear the case as the accident took place at kendrapada and alleged vehicle was insured at Jajpur Road and the case is barred by law of limitation as the claim was repudiated on 22.02.2007, on non-submission of required documents inspite of repeated remainders i.e. on 26.12.06 and 08.01.07. In support of the stand, the complainant has filed policy, payment of bills, report of surveyor and order of opp.Party No.2.



The Opp.Party also filed copy of letter dtd. 26.12.2006 and 08.01.07.



In view of above submission by both the contesting parties, the following issue is vital issue for adjudication of the complaint petition.



Whether the repudiation of claim by the opp.party No.1 is justified?



During course of argument the Advocate for the complainant mentioned that all the required documents were submitted before the opp.party No.1 but inspite of that the opp.party No.1 repudiated the claim.



Advocate for opp.party No.1 argued that the opp.party No.1 sent two letters dt. 26.12.06 and 08.01.07 to the complainant but the complainant failed to submit the required documents and there is no proof that the complainant has either submitted the required documents or sent the document to the opp.party No.1 and also to opp.party No.2 for which the opp.party No.2 dismissed the claim of the complainant.



So in view of above observation and from the pleading of both the contesting parties and basing on documents filed by the parties, it revealed that the complainant has failed to submit the required documents either to opp.party No.1 or to opp.party No.2 for which the claim was dismissed. Had the complainant submitted the documents before the opp.party No.1 or opp.party No.2 the matter would have been different, but the complainant failed to produce any evidence that she has in fact submitted the documents.



Hence in our view and opinion, the repudiation of claim by the opp.parties is upheld since the complainant has failed to prove that she has submitted the required documents to opp.party No.1 and also before opp.party No.2 and the complainant petition is dismissed with aforesaid finding without cost. The case is disposed of accordingly as complaint dismissed.



Given under our hand and seal of the Forum, this the 19th day of November, 2009.