Present: Sri Manoranjan Hazra,President.

Sri Lingaraj Khadanga,Member.

C.C.No.2/2009

Kabindra Singh,

At:Trisulia,PO:Brahmanigaon,

Patapur,Dist:Cuttack. … Complainant.

Vrs.
1. National Insurance Co. Ltd.,

Unit-III,Station Square,Bhubaneswar,

Khurda.

2. Trupti Automatives,NH-5,

Manguli Chowk,Cuttack.

3. Tata Motors Finance Ltd.,

Gurudwara Singh Sabha,

Ground Floor,Kharavel Nagar,Janapath,

Unit-III,Bhubaneswar. … Opposite Parties.

JUDGMENT DT.11.11.09


Sri Lingaraj Khadanga,Member.


Alleging deficiency in service in non-settlement of genuine insurance claims of the complainant, this case has been filed claiming reimbursement of the accident claim to the tune of Rs.77,523.50p,Rs.1,80,000/- towards loss of business and Rs.10,000/- towards mental agony with interest on the following grounds.

1. That the complainant is the owner of the vehicle bearing Regd. No.OR-05-Y-2247 which was purchased from Opposite Party No.2 with the financial assistance of Opposite Party No.3 as per the agreement dt.29.9.06.

2. After purchase, the vehicle was insured with Opposite Party No.1 through the financer bearing policy No.163200/31/07/6300002390 effective from 29.9.07 to 28.9.08(Annex-1).

3. While the vehicle was moving from Kuradha Malla to Barang, it faced an accident on 15.4.08 and a FIR bearing S.D.E No.287 dt.16.4.08 was lodged in Janla out post. Then the Opposite Party No.1 was intimated by fax message for settlement of claims. After receipt of message, a surveyor was deputed to the spot to make assessment and then as per his advice, the vehicle was shifted to M/s. Trupti Automobiles (Opposite Party No.2) for repair. After repair, a second surveyor was deputed by the said Opposite Party who again made budget of repairing with the assistance of a technician. In the process of repairing Rs.77,523.50p has been spent and this fact has been reported to Opposite Party No.1 on 8.9.08 for settlement of the claim. It is stated that instead of settling the claims, the Opposite Party No.1 intimated the complainant over phone to accept Rs.20,000/- arbitrarily which is much less than the amount spent and hence the case.

4. The learned counsel appearing on behalf of the Opposite Party No.1 in his written version challenges the complaint petition on the following grounds.

(i) The case is not maintainable since the vehicle was purchased for commercial purposes.

Though no information has reached him immediately after accident, the Opposite Party No.1 on 16.4.08 supplied the claim forms and deputed one surveyor-cum-loss assessor namely P.C.Nayak to conduct spot survey of the alleged accident and subsequently another surveyor Sri H.S.Parida, as final surveyor, was deputed to conduct the survey and assess the loss. After repair of the vehicle, the vehicle was re-inspected by another surveyor namely G.R.Mohanty to ascertain replacement of the parts and confirm the recommendation of the final surveyor.

This Opposite Party, after taking into consideration the documents submitted by the complainant, reports of the surveyors as well as terms and conditions of the policy, computed the liability for Rs.39,795/- before application of policy access of Rs.1000/- and salvage of Rs.1795/-. After deduction of the above, the claims of the complainant was settled at Rs.37,000/-. Accordingly this Opposite Party vide his letter dt.24.9.08 enclosing all reports intimated the complainant to return the pre receipt voucher for enabling him to proceed further in the matter. Since the complainant is entitled to Rs.37,000/- it has been settled after due application of mind and the fact has been intimated to the complainant vide registered letter dt.2.3.09 and 24.9.08 and since no voucher has been received from the complainant, there has been no deficiency in service on the part of this Opposite Party and on the above grounds, he prays to dismiss the case against him.

In this connection he relies on his letter at Annexs-D,E & F which have been sent to the complainant by post and it is seen that after receipt of the said letter no action has been taken by the complainant.

5. The Opposite Party No.2 though appeared has not filed any version. On the other hand learned counsel appearing on behalf of Opposite Party No.3 states that he being a financer is no way concerned with the alleged cause of action. However he states that due to repudiation of the claims, the Opposite Party No.3 has been highly prejudiced.

From above, the following issues require determination for deciding the case.

(a) Whether there has been any deficiency in service in settlement of the claims?

Admittedly immediately after the incident, the information was sent to Opposite Party No.1 and a surveyor was deputed for spot survey and assessment of loss. After his advice the vehicle was shifted to Opposite Party No.2 where repairs were undertaken. After repair, another surveyor has visited and assessed the loss and finally another surveyor has inspected the vehicle and ascertained the loss to the tune of Rs.37,000/-/. This is against the claims lodged for Rs.77,523.50p. Learned counsel for the complainant can not produce any evidence regarding intimation received from the Opposite Party No.1 on settlement of claims at Rs.20,000/- as stated in the petition. No evidence is produced to satisfy us that the discharge form along with other required documents were sent to the said Opposite Party for settlement of the claim. Later from the statement of the Opposite Party No.1, we find, discharge forms sent to the complainant have been returned back without any endorsement. Hence, we find no deficiency in service on the part of this Opposite Party No.1 in settlement of the claims which has been assessed at Rs.37,000/-.

Issue No.2: Whether surveyors report are to be accepted or not?

Admittedly the complainant does not agree to the settlement made by the Opposite Party No.1 against the claims lodged by him. It has already been intimated that the claims have been settled at Rs.37,000/- against repairing expenses of Rs.77,523.50p. In this connection, we are guided by the decisions of the Hon’ble National Commission reported in 2007(3) 224 CPR where it has been held that “loss assessed by the surveyor is to be given due importance unless repudiated by solid evidence”. Obviously in the instant case nothing has been placed before us to satisfy that the surveyors report is arbitrary and thus we hold that the assessment made by the surveyor i.e. Rs.37,000/- is correct and with application of mind. Thus we hold the report furnished by surveyors towards final assessment is correct and binding.

Issue No.3: What relief the complainant is entitled to?

Though there has been no deficiency in service on the part of Opposite Party No.1, in the interest of natural justice, we direct the complainant to supply necessary papers before the Opposite Party No.1 within a span of 15 days from the date of this order and Opposite Party No.1 after receipt of the papers, will settle the claims to the tune of Rs.37,000/- through cheque/D.D to the complainant within a further period of 7 days after receipt. With this the case is disposed of. No costs.

Judgment pronounced in the open Forum on this the 11th day of November,2009 under the seal and signature of this Forum.

Consumer Case No.: 35/2009.

Date of filing : 08.07.2009.

Date of final order : 26.11.2009.

Present:

A) Sri Saurish Chakraborty President.

B) Smt.Swapna Kar Member.

C) Sri Swaraj Kumar Biswas Member.

Ayesa Bibi

W/O – Rajesh Ali,

D/O – Late Nurul Sk.,

Jote Anantapur, P.O. - Bangitola,

P.S. – Kaliachak, Dist. – Malda. Complainant.

versus

1. The Divisional Manager,

National Insurance Company Limited,

Malda Division, 93 A, Rabindra Avenue,

2nd Floor, P.O. and Dist. – Malda.

2. The Branch Manager,

National Insurance Company Limited,

Raiganj Branch, P.O. & P.S. – Raiganj,

District – Uttar Dinajpur.



3. The Manager,

Golden Trust Financial Services,

Raiganj Branch, P.O. & P.S. – Raiganj,

District - Uttar Dinajpur.



4. The Manager,

The Golden Trust Financial Serice,

S. B. Manson, 16, R.N. Mukherjee Road,

Kolkata – 700 001. Opposite Parties.



Judgment

Date: 26.11.2009.

The case of the Complainant is in brief that she is the daughter of Late Nurul Sk. and Late Ayera Bibi – the parents and only heir to the estate of her parents. Late Nurul Sk. took a policy from the National Insurance Company Limited (Opposite Party No. 1) under the scheme Janata Personal Accident Insurance Policy with an assured sum of Rs.3,00,000.00 (rupees three lacs only), which had remains valid for 31.03.2003 to 30.03.2018. On 21.09.2007 Nurul Sk. was allegedly man-handled by the mob for his alleged attempt to commit extortion of silver ornaments and cash belonging to one Subhendu Neogy of Sharada Pally, Malda. Nurul Sk. was succumbed to his injuries in the district hospital, Malda. A case was started by the Police of English Bazar P.S. U/S 304 by 34 IPC against 300 to 400 miscreants vide English Bazar P.S. Case No. 356/2007, dated 21.09.2007. P.M. Examination of the deceased was done at Malda Sadar Hospital. The Complainant after procuring all documents filed claim application before the office of Opposite Party No. 1 through Opposite Party No. 4 on 04.02.2008. She also visited on several dates the office of the Opposite Party No. 2 and Opposite Party No. 4. But till the date of filing of complaint no positive step was taken by the concerned insurance company. So this complaint filed for Rs.3,00,000.00 (rupees three lacs only) and also for Rs.2,000.00 (rupees two thousand only) on account of litigation cost and further Rs.2,000.00 (rupees two thousand only) for mental pain and agony.



Opposite Party No. 1 and 2 has contested the present application for claim by filing one written version. The Opposite Parties specifically denied the issuance of relevant policy in favour of the deceased. They also denied the validity of the policy. The Complainant has no direct or indirect cause of action. The Complainant has opted the jurisdiction of this Forum by suppressing exact cause of action, which did actually occur within the jurisdiction of Malda Forum.

The Opposite Parties are not liable in any way to indemnify the claim. It has also denied that the Complainant visited their office prior to this case. The Opposite Party No. 2 can be made an opposite party to this case.



Stressing upon all the points narrated above, the Opposite Party/ Insurance Company wants the rejection of this complaint.



To prove her case the Complainant has filed a bunch of documents, which include (1) Copy of FIR, (2) Copy of Claim Form, (3) Letter dated 06.02.2009 with postal receipt, (4) Copy of insurance policy, (5) Copy of death certificate of Nurul Sk. and Ayera Bibi, (6) Letter dated 04.02.2008, (7) Copy of school transfer certificate, (8) Ration card of Ayesa Bibi, (9) Voter’s ID Card of Ayesa Bibi, (10) Copy of PM report of Nurul Sk.

Decision with reasons:

In this case the main point that has arisen for adjudication is whether the death of Late Nurul Sk. was accidental and/or the Complainant is the sole heir to his estate. The facts of the case as already narrated above, takes us to believe that the deceased, Nurul died in an incident and this incident did take place, when he was allegedly tried to commits the offence of extortion. However, we are not here judging the criminal aspect of the incident for want of jurisdiction. But, from the FIR and final report submitted by the Police of the case registered over the said incident shows that the deceased was beaten to death by a mob consisting of 300/400 persons. P.M. Report of the deceased also supports the Complainant’s contention that her father died having received multiple injuries which were homicidal in nature. So, we cannot be restrained to say that Late Nurul Sk. died in an incident, which is unnatural in nature. It is now established rule of law that the death, accidental/ incidental is also covered within the policy issued under the Personal Accident Insurance Policy.

There is a point raised by the Ld. Lawyer for the Opposite Party/ Insurer that there exists a dispute as to the jurisdiction of this Forum to entertain the present application on the ground that the entire matter involved in this case falls within the jurisdiction of Consumer Disputes Redressal Forum, Malda. Having regard to the submission made by Ld. Lawyer, we may say that the Consumer Protection Act gives the jurisdiction to the Forum, within which a business firm caries its business through its agent. The Opposite Party/ Insurer is carrying its insurance business through a Branch Office at Raiganj, which falls within the jurisdiction of this Forum. So, there cannot be dispute as to the power of this Forum to entertain the present complaint.



Now, with regard to the merit of this case, we may say that the Complainant in support of her contention has given evidence in the form of affidavit-in-chief. Opposite Party/ Insurer cross-examined her in full length. From her statement in cross-examination, we get that she happens to be the only heir to her late parents. It has also come in course of evidence about the identity of the Complainant. The identity of the Complainant has been challenged by the O.P. by putting a question in her cross examination. The Complainant in support of her claim, that she is the daughter of Late Nurul Sk., has filed her School Transfer Certificate. The certificate issued by the Brahmottar Primary School shows that in the register of the school the name of her father is recorded as Md. Nurul Sk. Opposite Party/ Insurer though challenged her identity, has failed to produce any evidence to contradict the contents of the certificate. So, it has been established from the evidence adduced by the Complainant that she is the daughter of the Late Nurul Sk. Her further claim that she is the only heir of her parents also went unchallenged. So, we may further hold that the Complainant is the only heir of her late father. The fact that her mother predeceased her father has also been supported by the certificate of death of her mother Ayera Bibi issued by the Sub-Register of Births and Deaths, Jadupur-I Gram Panchayet, English Bazar Block, Malda on 31.07.2008 in proper Form (Form No. 6) with Sl. No. 033. The further case of the Complainant that she has furnished her claim before the Opposite Party/ Insurer through the Branch Manager, Golden Multi Services Club Limited, G.T.F.S., Rathbari, N.H.-34, P.O. and District-Malda on 06.02.2007. Her grievance is that Opposite Party/ Insurer did not respond to her said letter. Opposite Party/ Insurer on the other hand submitted that they have received no any application from the Complainant for discharging the claim. What ever may be the contention of both parties about the conflicting claim of correspondence, the fact remains that the Opposite Party/ Insurer has not discharged the claim as yet.

The Insurance Certificate of late Nurul Sk. shows that it was valid on the date he faced an incidental death. The certificate itself shows seal and signature of the office of O.P.No.1. So, there is no doubt to hold that late Nurul Sk. held a valid insurance of Janata Personal Accidental Insurance Policy on the date of his death. And the Complainant being the only living heir of Nurul Sk. is entitled to claim the disbursement of the sum assured and the O.P./Insurer is also bound to discharge the claim.

So, in the opinion of this Forum, the Complainant has been able to establish her claim and as such she is entitled to get an order of disbursement of the sum assured against the O.P./Insurer. Apart from the amount assured, she is also entitled to claim compensation against the O.P./Insurer for not disbursement of the sum assured, on time and finally, she is also entitled to get litigation cost against the O.P./Insurer.



Fees paid are correct.



So it is ordered



That the complaint is allowed on contest with cost against the Opposite Party/ Insurer, National Insurance Company Limited.



The Complainant do get an order of Rs.3,00,000.00 (rupees three lacs) only – a sum, which is assured under the policy No. 100300/47/01/9600022/02/96/30442 of late Nurul Sk.

She is also entitled to get compensation of Rs.2,000.00 (rupees two thousand) only and litigation cost of Rs.1,000.00 (rupees one thousand) only.
The Opposite Party/ Insurer is directed to pay all the amounts within two months from the date of this order failing which an annual interest will be levied at the rate of 6.5 (six and half) percent from the date of this order till full satisfaction.


The case against Opposite Party, Golden Trust Financial Services is dismissed on contest without cost.
Furnish the true photocopies of this Final Order to the parties free of cost.

C. F. CASE NO.-CC/50/O/2009
PETITIONER =Vs. = O.P

Sukumar Roy(70 Years), S/0 Lt. Shib Sankar Roy, 1) Asst. Engineer, W.B.S.E.B. Gr. E/Supply

Kendua Fakirpara, PO-Suri, Birbhum. Suri East Zone.

2) Supdt. And Sub-Divnl. Engineer, Suri,

3) Station Incharge, WBSEB, Suri

PRESENT Shri S. S. Pal --------- President

Smt. Bula Koley…… Member.

DR S. Sikdher---------Member

Order no.-04/17.11.2009/



The petitioner has filed a petition contending interalia that he has already received payment of Rs.81484/- for the National Insurance Co. by the cheques bearing no.049695 dt 13/11/09, drawn on Axis Bank Ltd. (Suri), W.B. and as such he does not intend to proceed with the case. Xerox copy of A/c Payee cheques has been filed before the forum.

In the above circumstances the case deserves to be dismissed for non-prosecution.

Proper fees have been paid.

Hence,

Ordered that

CC Case no.50/2009 be and the same is hereby dismissed for non prosecution without cost.

Copies be supplied to the parties free of cost.

D.F.Case No.56/2008

Complainant: Smt.Aloka Bagdi,

W/o.Late Dipu Bagdi,

At village & post-Jharul,

P.S.-Galsi, Dist.-Burdwan.

VERSUS

Opposite Party:1. The Divisional Manager,

The National Insurance Co. Ltd.,

Division-III, 8, Indian Exchange Place,

Ground Floor, Kolkata-700 001.

2. M/s.Golden Trust Financial Services,

16, R.N.Mukherjee Road, Kolkata-01.

Present : Hon’ble President: Sri Tushar Kanti Paladhi

Hon’ble Member : Smt. Jharna Majumdar

Hon’ble Member : Sri Ajit Kr. Basu

Appeared for the Complainant:Ld. Advocate, Sukumar Mondal

Appeared for the Opposite Party No.1: Ld. Advocate, Ahibhusan De

Appeared for the Opposite party No.2: Ld. Advocate, Bibhas Mondal & Monalisha Banerjee
Date of delivery:17.11.2009

JUDGEMENT

This is a case U/s 12 of C.P. Act, alleging deficiency in service against the O.P.

and praying for direction to the O.P. to make payment of the claim amount to the complainant.

The husband of the complainant Dipu Bagdi, since deceased was covered under policy of Insurance bearing No.100300/47/01/9600022/01/96/30198, and face value Rs.200000/- valid from 15.9.2002 to 14.09.2017 under Group Janata Personal Accident Insurance Policy issued by the O.P. No.1 in favour of the O.P. No.2, and the complainant is the nominee under the said policy.

As ill luck would have it, said Dipu Bagdi was expired in a motor accident took place on 8.9.2006 at 6:30 A.M. at Manik Bazar Bus stand, P.O.-Jharul, P.S.-Galsi, Dist.-Burdwan. The fact was properly and timely intimated before the Galsi P.S., bearing FIR No.104 of 2006. After the said accident, the complainant intimated the said fact to the O.P. No.1 and O.P. No.2. Accordingly the claim form was issued by the O.P. No.1 ands after fill up the said form, the same was submitted before the O.P.No.2 along with all relevant cum necessary documents. But accordingly, the complainant even after observing all the formalities, the claim has not yet been settled by the O.P. No.1. Hence, this case.

O.P. No.1 contests this case by filing written statement and denying all the allegation as in the complaint. According to O.P. No.1 that they could not settle the claim due to the non-receipt of require and relevant documents as required for settlement of any claim. The claimant has submitted all the documents to the O.P. No.1 through Golden Trust Financial Services. They have already received the same. In the argument of both the Ld. Lawyers of the complainant and the O.P. there is no dispute about the death of the complainant as mentioned in the complaint.

Points for consideration in this case are:-

1. Whether there is deficiency in service on the part of the O.P.s?

2. Whether the complainant is entitled to get relief as prayed for?



FINDING WITH REASON



Admittedly, as per record submitted before the Forum and argument put forward before the Forum by ld.lawyers of both the parties, the Forum is of the view that the claim is duly admissible to the complainant. But at the same time the Forum is also of the view that there is some documents are required for settlement of any claim. So, though the claim has not yet been repudiated by the O.P. No.1. The O.P. No.1 should settle the claim after observing all the formalities as required and necessary for settlement of the claim. Thus, the complaint case disposed of with direction to the O.P. No.1 to settle the claim within 45 days after observing all the formalities as required by them. At the same time, the complainant also directed to comply and submit the documents as required and necessary. C.F. paid is sufficient. Hence,

ORDERED

that the case be disposed on contest. The O.P. No.1 is directed to settle the claim within 45 days after observing all the formalities as required by them. At the same time, the complainant also directed to comply and submit the documents as required and necessary by the O.P.

Dictated and corrected by me.

D.F.Case No.69/2006
Complainant: 1.Chandmoni Hansda,

W/o.Late Mongal Hansda.

2. Monisha Hansda(Minor Daughter)

D/o.Late Mongal Hansda.

3. Sahebe Hansda(Minor Son),

S/o.Late Mongal Hansda.

4. Mayno Hansda(Mother of M.Hansda)

All of address :-

No.5, Ichlabad, Adibasi para,

P.O.-Sripally, Disst.-Burdwan
VERSUS

Opposite Party:1. Sr.Divisional Manager,

National Insurance Com. Ltd.,

Division-III, No.1, Shakespeare Sarani,

Kolkata-71.
2. Manager,

Golden Multi Services Club Ltd.,

S.B. Mission, 16, R.N. Mukherjee Road,

Kolkata-1.

3. Branch Manager,

Golden Multi Service Club Ltd.,

No.2, Ichlabad Road, P.O.-Sripally,

Dist.-Burdwan.

Present : Hon’ble President: Sri Tushar Kanti Paladhi

Hon’ble Member : Sri Ajit Kr. Basu

Hon’ble Member: Mrs.Jharna Majumder



Appeared for the Complainant: Ld. Advocate, Subrata Ghosh.

Appeared for the Opposite Party No.1: Ld. Advocate, Shovan Kumar.

Appeared for the Opposite Party No.2 & 3: Advocate, Bibhas Mondal & Other.

Date of delivery: 05.11.2009

JUDGEMENT

This is a case U/S 12 of C.P. Act, alleging deficiency in service against National Insurance Company and praying for direction to the O.P. for payment of claim amount to the complainant.

The complainant’s case is that originally Mongal Hansda was the complainant in this case. He died during pendency of this case. His heirs have been substituted in this case. Mongal Hansda insured Group Personal Accident Policy of National Insurance Company Ltd. being no.100300/42/04/8200012 for the sum of Rs.50,000/- for the period from 23.8.2004 to 22.8.2011 issued by Golden Multi Services Club Limited. On 8.3.2005, the complainant met with an accident, when he was engaged in his duty and his left eye was seriously injured. Thereafter, he was consulted and treated under Dr. S.K.Banerjee of Megha Eye Centre. But ultimately he lost his left eye. The complainant intimated the accident to O.P. No.2 through O.P. No.3 vide letter dated 4.7.2005, and lodged a claim under the policy and submitted the same through GTFS vide letter dated 30.8.2005, who transmitted the claim form to National Insurance Company. After six months from receipt of the claim O.P. No.1 repudiated the claim, treating the claim as “No claim” on the ground of violation of condition No.1 and the same was communicated to the complainant vide letter dated 3.3.2006. According to the complainant, such is deficiency in service on the part of O.P. No.1. Hence, this case.

O.P. GTFS files written version, practically supporting the case of the complainant. O.P. No.1 National Insurance Company contests this case by filing written objection, stating that the complainant failed to intimate the accident of the insured within stipulated period as provided in the policy. O.P. No. 1 further states that the claim form with all necessary document was required to be submitted within 90 days from the date of accident.

Points for consideration in this case are:-

1. Whether there is deficiency in service on the part of the O.P. National Insurance Co.?

2. Whether the complainant is entitled to get relief as prayed for?

FINDING WITH REASONS

Admittedly, Mongal Hansda, the original complainant insured himself under the Group Personal Accident Policy of National Insurance Company Ltd. The O.P. Insurance Company has not disputed loss of left eye of Mongal Hansda due to accident. Ld. Lawyer of the Insurance Company by referring MOU submits that GTFS is ordered to collect premium from the insured person and to remit the same to the National Insurance Company and it had no other liability in this regard. Ld. Lawyer has also questioned the function of the GTFS as per terms and conditions of the MOU. But the Forum is of the view that, as the policy has been issued by National Insurance Company, so the National Insurance Company is to settle the claim of the insured. The complainant has filed all the medical papers from which the Forum is satisfied that there was treatment of the injured left eye. The disabled certificate of Megha Eye Centre issued by Dr.S.K.Banerjee is filed in this case. It is evident from such certificate that Mongal Hansda, the original complainant lost his left eye due to accident while on duty. Ld. Lawyer of Insurance Company attacks the case on the ground that the incident was intimated to the Insurance Company after four moths twenty two days from the date of incident, and the claim was also submitted after five months twenty two days from the date of incident. Ld. Lawyer draws our attention to the clause as in the policy, where there is time limit of 30 days and 90 days respectively from the date of incident. But Ld. Lawyer of the complainant refers the case cited in 2005,Volume-II CPR-24 of Maharastra State Commission where it is held that such condition is not mandatory. Such clause is meant for the interest of the insured in order to facilitate prompt scrutiny of the claim. This clause therefore, cannot be used in detriment to the interest of the insured. Ld. Lawyer of the National Insurance Company refers the case of 2008 Volume-II CPR-132 of National Commission where it is held that when claim is submitted beyond six months, in that case repudiation cannot be held as deficiency in service. According to Ld. Lawyer of Insurance Company, the National Commission has practically over ruled the above case of Maharastra State Commission by observing that delay is the factor in case of submission of claim. But in the present case the claim was submitted within five months twenty two days from the date of incident. The delay was for two months twenty two days.

In view of our above discussion, we hold the present complainant is entitled to get 50% of the amount of Rs.50,000/- due to loss of site of one eye. Thus, the complaint case succeeds. C.F. paid is sufficient. Hence,

ORDERED

that the case be allowed on contests. O.P. No.1 National Insurance Company is directed to make payment of Rs.18,750/- to present complainant No.1, Chandmoni Hansda and Rs.6,250/- to Mayno Hansda, complainant No.4 within two months from this date of order. We do order of no cost.

Dictated and corrected by me.

D.F.Case No.4/2008


Complainant: Sufia Bibi,

W/o.Khandekar Ajmol Hosain,

Vill.-Tatarpur, P.O. & P.S.-Memari,

Dist.-Burdwan.


VERSUS

Opposite Party:1. Manager,

Golden Multi Services Club of GTFS,

Ichlabad Road, Parbirhata, Burdwan.



2. Divisional Manager,

National Insurance Com. Ltd.,

Burdwan Division, Kundu Manson,

G.T.Road(west), Burdwan-713104.


3. Sr.Divisional Manager,

National Insurance Company Ltd.,

Division-3, Rubi House, No.8, India Exchange,

Kolkata-1.


Present : Hon’ble President: Sri Tushar Kanti Paladhi

Hon’ble Member : Sri Ajit Kr. Basu

Hon’ble Member: Mrs.Jharna Majumder

Appeared for the Complainant: Ld. Agent, R.S.Ganguly.

Appeared for the Opposite Party No.1: Ld. Advocates, Bibhas Mondal & Other

Appeared for the Opposite Party No.2 & 3: Ld. Advocate, Shovan Kumar.

Date of delivery:05/11/2009

JUDGEMENT

This is a case U/S 12 of C.P. Act, alleging deficiency in service against the O.P., National Insurance Company and praying for direction to the O.P. for payment of the claim amount along with interest to the complainant.

The complainant’s case is that Khandekar Khasnur Hosain alies Bela Khandekar now deceased, the son of the complainant insured himself through Golden Multi Services Club of GTFS for Janata Accidental Insurance of Rs.50,000/- and a policy numbering 100300/47/01/9600022/01/96/30099 was issued in his favour covering the period from 23.4.2003 to 22.10.2017. The policy holder faced a road accident on 19.9.2007 and died on 17.9.2004. The claim was submitted on 29.10.2004. O.P. National Insurance Company cancelled such on 17.9.2005. As the claim form was submitted in some delay of one month twelve days, the same was repudiated by National Insurance Company by letter dated 17.6.2005. The complainant has intimated to the National Insurance Company on 16.5.2006 as to why the claim form was submitted in such delay. Hence, this case has been filed for relief.

O.P. No.1 GTFS files written objection, practically supporting the case of the complainant. O.P. National Insurance Company contests this case by filing written objection. According to O.P. Insurance Company, as per terms and conditions of MOU GTFS has responsibility to settle the claim and Insurance Company has nothing to do in this matter. It is also stated that the intimation of accidental death was not given within stipulated period. The form was also not submitted in time as per terms and conditions of the policy.

Points for consideration in this case are:-

1. Whether there is deficiency in service on the part of National Insurance Company?

2. Whether the complainant is entitled to get relief as prayed for?



FINDING WITH REASONS



Admittedly, Khandekar Khasnur Hosain had an accidental policy as stated in the complaint. It is also not disputed that the insured died within coverage period. Ld. Lawyer of Insurance Company attacks the case on the point that GTFS, not National Insurance Company is responsible to settle the claim, that the clauses of the policy are not complied with and the case is barred by limitation. As regards, first contention, the policy has been issued by National Insurance Company. So, National Insurance Company is finally to settle the claim. Regarding delay of 12 days, it is held in the Maharastra State Commission cited in 2005(2) CPR 24 that the condition with regard to the time limit is directory. This clause is meant for the interest of the insured in order to facilitate prompt scrutiny of the claim. This clause therefore, cannot be used in detriment to the interest of the insured.

In view of such observation of State Commission, Maharastra, the contention of Ld. Lawyer of Insurance Company is not tenable. As regards point of limitation, the claim has been repudiated on 17.6.2005. The complainant was required to file this case within two years from such date. But this case has been filed on 11.1.2008. So, this case is barred by limitation. The complainant has stated at para-6 that he intimated to the Insurance Company on 16.5.2006, why the claim was submitted in delay. No document is forthcoming in support of such statement. More over, there was no reply on behalf of Insurance Company. So, complainant is required to file this case within 17.6.2007. Thus, the complaint case fails. C.F. paid is sufficient. Hence,

ORDERED

that the case be dismissed on contest. We do order of no cost.

Dictated and corrected by me.

Complaint case No. 59/2009 Date of disposal:13/11/2009

Complainant/Petitioner/Plaintiff : ARIFUL ISLAM MALLICK.

Defendant/O.P.S. : THE DIVISIONAL MANAGER, NATIONAL

INSURANCE CO. LTD., & OTHERS.

BEFORE : THE HON’BLE PRESIDENT : Mr. P. K. Sarkar.

MEMBER : Mr. S. Pal.

MEMBER : Smt. J. Sarkar. For the Complainant/Petitioner/Plaintiff: Mr. A. K. Dutta.

For the Defendant/O.P.S. : Md. G. Chowdhury.

Judgement/Order.

This case of complaint was filed by Ariful Islam Mallick S/o-Golam Ohid Mallick residing at Vill-Gopinathbati, P.O.-Kolagram, P.S.-Keshpur, Dist- Paschim Medinipur against the Op. no.1. the Divisional Manager, National Insurance Co. Ltd., Midnapore Divisional office, Station Road, P.O.-Midnapore, Dist-Paschim Medinipur, the Op. no.2. the Branch Manager, National Insurance Co. Ltd., OT Road, Inda, Kharagpur, Dist-Paschim Medinipur and the Op. no.3. the Tata Motor Ltd., Bhandari Auto Mobiles Ltd., Rupnarayanpur, P.O.-Jakpur, P.S.- Kharagpur(L), Dist:-Paschim Medinipur alleging that the Ops repudiated the insurance claim in respect of policy no.153802/31/07/6300001398 covering the vehicle no.WB-33A/2574 owed by him..

The facts of the case, in brief, are that the Op. no.2 issued insurance policy in question in respect of the vehicle no.WB-33A/2574 on receipt of requisite premium from the complainant covering the period from 12/06/07 to 11/06/08 (midnight). Unfortunately the vehicle met an accident on 27/28-05-08 at night near Tikar Bridge (Panikoili) and the truck was badly damaged. After investigation the police officer of Panikoili P.S., Dist-Jajpur, Orissa issued certificate on 28/05/09 regarding occurrence of the accident and the same was duly intimated to the Op. no.1 in writing with the request to arrange for a spot survey. The complainant furnished all the relevant papers along with the bills and vouchers amounting to Rs.1,50,000/- (Rupees one lack fifty thousand only) which was spent for repairing of the vehicle. The Ops repudiated the claim without assigning any reason. Hence this case of complaint was filed praying for issuance of

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direction upon the Ops (i) to pay Rs.1,50,000/- and compensation of Rs.50,000/- for harassment with interest thereon.

The case has been contested by the Ops by filing a written objection contending interalia, that they sent three letters dated 17/10/08, 19/01/08 and 23/02/09 to the complainant to explain various irregularities in his claim but the complainant did not bother to explain those irregularities to the Ops.. They also contended that the complainant entered into an agreement with the Ops’ official surveyor regarding the total amount of full and final claim (damage) on 04/07/2008 and the complainant signed the agreement in presence of SK Hafijul Rehaman agreeing and accepting all the terms and conditions thereof. They pointed out that the complainant agreed to give up his claim on engine and accepted Rs.62,970/-.in full and final settlement of his claim. They further contended that the accident occurred due to contributory negligence of the driver and as such they are not liable to compensate the complainant. According to the Ops, they are not deficient in service as alleged by the complainant and as such the instant case should be dismissed with cost.

Upon the pleadings of both sides the following issues are framed for our consideration :

i) whether the case is maintainable in this Forum ?

ii) whether the Ops are deficient in service as alleged by the complainant ?

iii) To what relief/relief(s) the complainant is entitled ?

Decisions with reasons:

We have very carefully perused all the papers/documents filed in this case by both the parties. We have also heard and considered the submissions made by the Ld. Lawyers on behalf of the parties.

Issue No.(i)

There is no dispute that the insurance policy in question in respect of the 33A/2574 owned by the complainant was issued by the Op-Insurance Company on receipt of requisite premium and the accident occurred during the currency of the insurance policy. Therefore the complainant is a consumer of the Op-Insurance Company in terms of provisions of section 2(i)d (ii) read with section 2 (1) (g) & 2(1)(o) of C.P. Act, 1986.

Issue Nos.(ii) & (iii)

There is no dispute that the accident occurred on 27/28-05-08 at night when the insurance policy was in force. The Ld. Lawyer for the complainant submitted that the complainant signed an ‘Acceptance Note’ on 04/07/08 wherein it was mentioned that Rs.62,970/- (Rupees sixty two

Contd………….P/3
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thousand nine hundred seventy only) was the assessed amount for the labour charges including materials and Rs.2,790/- (Rupees two thousand seven hundred ninety only) was assessed towards lifting charge and those figures tally with amounts assessed by the assessor engaged by the Op-Insurance Company. There is also no dispute that the complainant submitted all the relevant papers/documents which were required for settlement of the claim.

It is not understood and the counsel for the Op-Insurance Company failed to give any satisfactory explanation, as to why the Op-Insurance Company did not settle the claim of the complainant even after the assessed amount was accepted by the complainant. They contended that by letters dated 17/10/08, 19/01/09 and 23/02/09 they asked the complainant to clarify the following:

1) Name of owner appeared on Police report as Driver which does no tally;

2) Date and time on 1st intimation is wrong and does not tally with the subsequent intimation to Kharagpur and Police report;

3) The name of driver is wrong in 1st intimation;

and as the complainant failed clarify said irregularities they closed the case of the complainant The said reason shown by the Op-Insurance Company for non-settlement of the claim appears to be baseless as all the essential requirements were fulfilled at the time of survey and preparation of joint note of acceptance..

So after considering al aspects in view we strongly hold that the Op-Insurance Company was deficient in service for non-settlement of the claim within reasonable time (within one week after the date of acceptance of assessed amount by the complainant). Therefore the Op-Insurance Company must compensate the complainant appropriately for non-settlement of the claim. They should also pay interest on the assessed amount @ 9% p.a. for the period from 11/04/08 to the date of this order. Thus the issues are answered in favour of the complainant.

Hence,

Ordered,

that the complaint be allowed on contest.

The Op. no.2 shall pay the complainant Rs.65,470/- (Rs.62,970 + Rs.2,500/-) (Rupees sixty five thousand four hundred seventy only) together with Rs.7,860/- (Rupees seven thousand eight hundred sixty only) being the interest @ 9 % p.a. on Rs.65,470/- for the period from 11/07/08 to the date of this order within 30(thirty) days from the date of communication of this order failing which interest shall apply @ 12% p.a. with quarterly rests on Rs.73,330/- (Rupees seventy three thousand three hundred thirty only) for the delayed period.

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The Op. no.2 shall also pay the complainant Rs.2,000/- (Rupees two thousand only) towards cost of litigation on within the period as stipulated herein above.

The Op. no.1 shall ensure strict compliance of this order.

Thus the case is disposed of on contest.

Let the copies of the judgement be supplied to the parties free of cost.

Dic. & Corrected by me

Complaint case No. 50/2009 Date of disposal: 10/11/2009

BEFORE : THE HON’BLE PRESIDENT : Mr. P. K. Sarkar.

MEMBER : Mr. S. Pal.

MEMBER : Smt. J. Sarkar. For the Complainant/Petitioner/Plaintiff: Mr. A. K. Dutta.

For the Defendant/O.P.S. : Mr. S. B. Das.

(1) Smt. Gita Samanta, W/o-Late Gobinda Samanta, Vill & P.O.-Jotbani, P.S.-Daspur, Dist Paschim Medinipur………….Complainant.

Vs.

1) The Manager in Charge, Ghatal Co-operative Agri. And Rural Dev. Bank Ltd. at Ghatal, P.O. & P.S.-Ghatal, Dist- Paschim Medinipur.

2) The Branch Manager, National Insurance Co. Ltd. Chandrakona Road, Branch office, P.O.-Sathbankura, P.S.-Garhbeta, Dist-Paschim Medinipur……………..Ops.

The complainant’s case, in brief, is as follows :-

The complainant’s husband, Gobinda Samanta since deceased, got a S.B.-A/C in Ghatal Co-operative Agricultural & Rural Development Bank Ltd./ the O.P. no.1 and as per agreement between Op. no.1 and Op. no.2-Insurance Co. the complainant’s husband had to take the J.P.A. Insurance Policy from the Op. no.2 to maintain that account. During the policy period the insured Gobinda Samanta died on 08/02/2008 due to drowning in a pond. The Panchayet Pradhan prepared an inquest report over the dead body of Gobinda Samanta and on the basis of information of the Prodhan the police of Daspur P.S. started the Daspur P.S. U.D. Case no.08/2008 dated 21/02/2008. Subsequently the complainant being the nominee in respect of the insurance policy of her deceased husband informed about the accidental death of her husband to the Op. no.2-Insuranc Co. through the Op. no.1-Bank and also submitted a claim for the assured sum before the Op. no.2-Insurance Co. on 17/01/2009 with all necessary papers. Then the Op. no.2-Insurance Co. appointed an investigator to ascertain the cause of death of the insured Gobinda Samanta and as the said investigator opined that the insured Gobinda Samanta died due to heart attack, so the Op. no.2-Insurance Co. rejected the claim of the complainant. According

Contd………….P/2

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to the complainant, the op. no.2 wrongly rejected the claim of the complainant on the basis of erroneous report of the investigator and as such they were deficient in service for not settling her claim under the J.P.A Insurance. Policy issued by them for the accidental death of her husband, the insured. As such the complainant filed the instant complaint praying for issuing directions upon the Op. no.2-Insurance Co. to pay the assured sum of Rs.50,000/- with up to date interest thereon and a compensation of Rs.25,000/- for their deficient in service, to the complainant.

The Op. no.2-Insurance Co. contested the case by filing their written objection contending interalia, that on receipt of information about the alleged accidental death of the insured Gobinda Samanta, they appointed the investigator, Sudip Kumar Sahu, to ascertain the actual cause of death of the insured and as per report of the investigator the insured Gobinda Samanta died due to severe heart attack, not due to drowning as claimed; that the signs and symptoms noted by the Anchal Pradhan Smt. Shyamali Singh in the inquest report prepared by her immediately after the death of Gobinda Samanta could not have occurred so early in case of death by drowning as claimed; and that the complainant procured such inquest report describing the death of the insured, Gobinda Samanta due to drowning in collusion with the Anchal Prandhan to get the insured sum under the policy of insurance from the Op. no.2-Insurance Co. The Op. no.2 further contended that the opinion of the doctor, Gouri Sankar Mondal, regarding the cause of death of the insured as noted in the death certificate issued by him is not reliable as he failed to mention the place of death and the time of his examination in the certificate and that the insured is not likely to have died due to drowning in the pond which had only knee deep water as ascertained by the investigator during enquiry. Accordingly, it has been submitted by the Op. no.2 Insurance Company that they rightly repudiated the claim of the complainant on the basis of the report of the investigator that the insured died due to severe heart attack, not due to drowning as claimed.

The points for decisions are :

1) Whether the complainant is a consumer within the meaning of the section 2 (i) (d) (ii) of the C.P. Act, 1986 ?

2) Whether the Ops. are deficient in service within the meaning of section 2 (1)(g) read with section 2(1) (o) of the C. P. Act, 1986 ?

3) Whether the complainant is entitled to get the reliefs as sought for?

Decisions with reasons :

Point No. 1.

It is not disputed that the husband of the complainant. Gobinda Samanta since deceased, obtained a J.P.A. Insurance policy from the Op. no.2-Insurance Co. for holding an

Contd………….P/3

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account with the Op. no.1-Bank and during the currency of the policy, the insured Gobinda Samanta died on 08/02/2008. According to the complainant, her husband, the insured Gobinda Samanta, died due to drowning in a pond at about 08-25 a.m. on 08/02/2008 at his native place. But the Op. no.2-Insurance Co. repudiated her insurance claim under the J.P.A. insurance policy issued by them for the accidental death of her husband. Though the complainant claimed to be the nominee of the Insurance Policy of her husband, the letter dated 11/02/2008 written by the son of the insured Gobinda Samanta namely Shri Tapan Samanta (marked ext.) to the Op. no.2-Insurance Co. through Op. no.1-Bank, disclosed that Tapan Samanta was the nominee of the Insurance policy of his father Gobinda Samanta since deceased. The Xerox copy of the ledger of the Op. no.2 also disclosed that the son of the insured Gobinda Samanta, namely Tapan Samanta, was recorded as nominee in respect of the J.P.A Insurance. Policy issued by them in favour of the Op. no.1-Bank. As such, the complainant’s claim as nominee in respect of the J.P.A. Insurance policy of her husband is not maintainable.. So, the complainant cannot be held to be a consumer under section 2(1) (d) (ii) of the C. P. Act. Thus, this issue is decided against the complainant.

Point Nos.2 &3.

According to the complainant, her husband Gobinda Samanta, died due to drowning in a pond on 05/02/2008 and in support of such claim the complainant submitted the death certificate issued by the local doctor. Gouri Sankar Mondal and the inquest report prepared by the Prodhan, Sarberia no.1 Gram Panchayet, Daspur, before the Op-Insurance Co. claiming the assured sum under the J.P.A. Insurance policy of her husband issued by the Insurance Co. According to the Op-Insurance Co. on receipt of information regarding the unnatural death of the insured Gobinda Samanta, they appointed an investigator to ascertain the cause of death of the insured and as per report of the investigator Sudip Kr. Sahoo, the insured Gobinda Samanta died due to heart attack and not due to drowning as claimed by the complainant. It may be noted that the local Pradhan of the Gram Panchayet was only authorized to dispose of the unclaimed corpses and carcasses under section 21 of the Panchayet Act, 1973 but the Pradhan of Gram Panchayet, got no authority to prepare the inquest report over the dead body a person died unnaturally under the Act. As such the inquest report prepared by the Pradhan, Sarberia no.1 Gram Panchayet, Daspur, the over the dead body the insured, Gobind Samanta who is said to have died unnaturally due to drowning, can not be relied upon as an authentic document regarding the cause of the death of the insured. Similarly, the Dr. Gouri Sankar Mondal, was also not authorized to certify that the insured Gobinda Samanta, died unnaturally due to drowning without reporting such unnatural death to the concerned Police Station. The Pradhan

Contd………….P/4

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of the local Gram Panchayet also should have reported the said unnatural death of insured Gobinda Samanta, due to drowning to the local P.S. immediately after occurrence of such unnatural death. The acts the Pradhan of the local Gram Panchayet and the doctor Gouri Sankar Mondal appear to be improper and illegal. It revealed from the copy of the F.I.R. of the Daspur P.S. U.D. Case no.08/2008 dated 21/02/2008 filed by the complainant that the police started the said U.D. case regarding unnatural death of insured, Gobinda Samanta, on 21/02/2008 on the basis of the inquest report prepared by the Pradhan, Sarberia no.1 Gram Panchayet, Daspur, which was received by them on 21/02/2008. The complainant has failed to submit the final report of the said U.D. Case no. 08/2008 started by the Daspur Police Station to enable this Forum to know the actual cause of death of insured, Gobinda Samanta. There appear reasons to believe that the relations of the insured disposed of the dead of the insured, Gobinda Samanta, long before police started the said U.D. Case no.08/2008 on the basis of the inquest report prepared by the local Anchal Pradhan. It revealed from the report of the investigator, Sudip Kuma Sahu that on local enquiry he came to know that the insured Gobinda Samanta, died due to heart attack and there was little scope for drowning in the pond having knee deep water where the insured is said to have drowned. It further revealed from the copy of the J.P.A. Policy-in question and the terms and conditions of such policy filed by the Op-Insurance Co. that the claim of the person presumed to have died due to drowning may be settled after two years of the submission of the police report, final investigation report and other relevant documents. So, the insurance claim for the unnatural death of the insured due to drowning must be supported by the police report and final investigation report after two years of submission of such claim as per terms of the J.P.A. Insurance policy issued by the Op-Insurance Co. As such, the insurance claim of the complainant for the unnatural death of her husband due to drowning not supported by the final investigation report of the U.D. case started by the police of Daspur P.S. was rightly rejected by the Op-Insurance Co.

Ld. Lawyer for the complainant referred the decision reported in 2008(2), C.P.R., 407 (NC) in support of the claim of the complainant; and contended that the Insurance Co. is liable to pay the assured sum under the J.P.A. Insurance policy issued by them in view of the principle of said decision. On perusal of the said decision it transpired that the facts and circumstances of the said decision are quite different from the facts and circumstances of this case. In the instant case there were sufficient reasons for the Op-Insurance Co. to dispute the claim of the complainant that the insured Gobinda Samanta died due to drowning and the nominee of the J.P.A. Insurance Policy issued by the Op-Insurance Co. in favour of the deceased Gobinda Samanta still got opportunity to claim the assured sum from the Op-Insurance Co. by submitting the final police

Contd………….P/5


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report of the Daspur P.S. U.D. Case no.08/2008 started for the said unnatural death of the insured, as per terms and conditions of the policy in question.

In view of the aforesaid facts and reasons the complainant is not entitled to get any relief in this case.

Hence, it is

ordered that the complaint be dismissed on contest. The parties do bear their respective costs.

Let the copies of the judgement be supplied to the parties free of cost.

Dic. & Corrected by me

Consumer Complaint No.85/07

Date of presentation: 28.3.2007

Date of decision: 30.11.2009

1. Kamlesh Sharma, widow, 2. Bhavna Sharma, daughter, 3.Shilpa Sharma, daughter, 4. Diksha Sharma, minor daughter, of late Shri Jugal Kishore Sharma, son of Shri Hans Raj Sharma, (complainant No.4 minor through her mother, and natural guardian Smt. Kamlesh Sharma, complainant No.1), all residents of Ward No.9, Nurpur Town, Tehsil Nurpur, District Kangra-HP
Complainants
Versus

The National Insurance Company Ltd., Branch Office at Dharamshala, through it’s Branch Manager.

Opposite party

Complaint under section 12 of the Consumer Protection Act, 1986

PRESIDENT: R.K.MITTAL

MEMBER: PARDEEP DOGRA

For the complainant: Sh. Vinay Soni, Advocate vice Sh.V.K.Prashar, Advocate

For O.P.: Sh. Vinay Sharma, Advocate

R.K.MITTAL, PRESIDENT (ORAL)

ORDER

The brief facts of the complaint, as alleged are that the complainants are the legal heirs of the deceased Sh. Jugal Kishore. The complainant No.4, is the minor daughter of the deceased Sh. Jugal Kishore, and she is suing this complaint through her mother (complainant No.1), who has no adverse interest against her.

It is alleged that Sh. Jugal Kishore, (husband of the complainant No.1, and father of the complainants No.2 to 4 (hereinafter referred to as the deceased), was owner-cum-driver of the tractor bearing registration No.HP-38-3601, and it was insured with the opposite party on 23.11.2006 vide Insurance Policy No.421202/05/630005902, valid with effect from 24.11.2005 upto 23.11.2006. The deceased had paid the premium of Rs.6745/-. The Insurance Policy of the tractor had included the compulsory PA to owner-cum-driver to the tune of Rs.100/-, meaning thereby that the driver-cum-owner was also fully insured alongwith the tractor. It is alleged that on 27.4.2006, the deceased was driving the said tractor, and it had met with an accident, and he had died on the spot. F.I.R. No.138/06 was lodged in Police Station-Nurpur on 28.4.2006. The Post mortem of the deceased was conducted on 28.4.2006, in Civil Hospital, Nurpur. Due to the sudden death of the deceased, his legal heirs (complainants) had remained under shcok. However, they vide their letter dated 28.6.2006, had submitted the claim papers with the opposite party.

The opposite party vide their letter dated 4.7.06, had asked them to furnish certain documents. The complainant had again submitted the documents, and had requested the opposite party to settle the whole insurance claim for a sum of Rs. two lacs, but their claim was not settled by them, so the opposite party has been deficient, in rendering proper services to them. The complainants have claimed the relief of Rs. two lacs, with interest @ 18% per annum, from the date of accident, till it’s final payment. They have also claimed compensation to the tune of Rs.one lac, for their mental agony, and harassment. They have also claimed litigation costs to the tune of Rs.10,000/-, of this complaint.

2. The opposite party has contested this complaint by filing their reply on 7.8.2007, in which they have contended that the tractor bearing No.HP-38-3601 was registered as a commercial vehicle. The tractor was being plied, without any valid route permit, at the time of the accident, in violation of the terms and conditions of the Insurance Policy. They have also contended that the complainants are estopped from filing this complaint, on account of their act, conduct, commissions, and omissions. They have also contended that the complainants have not come before this Forum with clean hands, and they have suppressed the material facts from this Forum.

The opposite party has further contended that the complainants are not the legal heirs of the deceased. This Forum does not have the jurisdiction to entertain this complaint, and that the complainants are not the consumers. They have also contended that the complaint is false, and vexatious one. They have also further contended that after receipt of the intimation of the accident, and after the receipt of the registration certificate of the vehicle, they had demanded the copy of the “Goods Carriage Permit” for it’s verification from the complainants vide their letters dated 8.6.2006, and 10.7.2006, but they had failed to submit the route permit of the tractor. They have also contended that since the vehicle was commercial, it had required the route permit, under section 66 of the Motor Vehicles Act, and that since the vehicle was being driven/plied, in violation of the terms, and conditions of the insurance Policy, so the complainants are not entitled for any compensation. So, they have prayed for dismissal of this complaint with special costs.

3. The complainants have refuted the contentions of the opposite party, made in their reply, and they have re-asserted the facts/averments of the complaint, in their rejoinder, filed on 21.2.2008.

4. No arguments have been addressed on behalf of the complainant, despite the fact that number of opportunities have been granted to the learned counsel for the complainants, to address the proper arguments, and to bring the rulings/law to the effect that whether the route permit was required for plying a commercial vehicle or not, but neither the arguments have been addressed on behalf of the complainants today, nor the route permit has been produced, and nor any authorities/law, has been cited by the learned vice counsel appearing on behalf of the complainants. However, we have considered the arguments of Sh. Vinay Sharma, Advocate, learned counsel for the opposite party, and we have also carefully gone through the case file, facts, and the evidence on the record.

5. The complainant No.1, Smt. Kamlesh Kumari, has fully supported/corroborated the averments/facts of the complaint, on oath, in her affidavit Ex.CW-1. Annexure C-1, is the certificate dated 7.12.2007, issued by the Himachal Gramin Bank, regarding financing of the amount to the tune of Rs. three lacs, for the purchase of a tractor, for agriculture purpose to the deceased Sh. Jugal Kishore

6. On the other hand, Ex.OPW-1, is the affidavit of Sh. Parkash Chand, Senior Branch Manager, on behalf of the opposite party. Annexure OP-1, is the photo copy of the Insurance Policy Cover Note, in which the deceased had declared the value of the tractor, to the tune ofRs.3,88,150/-, and had further declared the value of the trolley to the tune ofRs.20,000/-. It is clearly mentioned in the Insurance Cover note that the vehicle has to be plied only under a route permit. Annexure OP-2, is the photo copy of the registration certificate of the vehicle bearing No.HP-38-3601. It’s perusal shows that the tractor in question has been registered as commercial vehicle. Annexures OP-3, and OP-4, are the copies of letters dated 8.6.2006, and 10.7.2006 respectively, written by the opposite party to the complainants. Annexure OP-5, is the document (screen report of the vehicle) dated 5.1.2008. It’s perusal shows the transfer of ownership of the vehicle from Sh. Ashok Kumar to the deceased Sh. Jugal Kishore. The opposite party has also examined Sh. Joginder Singh, Senior Assistant, in the office of Registering, and Licensing Authority, Nurpur. He has deposed on oath, that the vehicle bearing registration No.HP-38-3601 was registered as commercial tractor. He has further deposed that their office does not issue any route permit, or goods carriage permit, or state carriage permit, in respect of transport, and commercial vehicles. The opposite party has also examined Sh. Ashwani Kumar, Steno in the office of RTO-Dharamshala. He has deposed that no body had applied for getting any permit in respect of vehicle No.HP-38-3601, in their office. He has further deposed that if the weight of the vehicle is more than 3000 kgs., then permit is required to be obtained in respect of the vehicle under the Motor Vehicles Act. As per the statement of Sh. Joginder Singh, the un-laden weight of the tractor No.HP-38-3601 was 3040 Kgs., and gross weight was 4040 kgs. Sh. Ashwani Kumar, an employee of the RTO Office, Dharamshala, has clearly deposed during his cross-examination, that if the vehicle is registered as commercial, then the route permit is very essential for plying of the vehicle. Section 66 of the Motor Vehicles Act, reads as under:-

“66. Necessity for permits.

(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used:

Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorize the use of the vehicle as a contact carriage:

Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorize the use of the vehicle as a goods carriage either when carrying passengers or not:

Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorize the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.

(2) The holder of a goods carriage permit may use the vehicle, for the drawing of any trailer or semi-trailer not owned by him, subject to such conditions as may be prescribed:”


7. The insurance of the vehicle, and it’s accident, admitted by both the parties. The death of the deceased, and damage to the vehicle are also not denied by both the parties. Since, the damaged vehicle was a commercial vehicle, as per the registration certificate, and it’s insurance was also got done, for commercial purpose, and admittedly, the deceased was not having a valid route permit of the vehicle, so it is crystal clear that the vehicle was plied by the deceased, at the time of accident, without any route permit, in clear cut, violations of the terms and conditions of the Insurance Policy. Hence, the complainants are not entitled for any claim. So, their complaint deserves to be dismissed with costs.

8. Accordingly, it is dismissed with exemplary costs of Rs.5000/-, which will be paid by the complainants, within a period of 30 days, after the receipt of copy of this order, jointly and severally to the opposite party. The copy of this order be sent to the parties, free of costs, and the file after it’s due completion be consigned to the record-room.

Complaint Case No.130/2009

Date of Institution 3-4-2009

Date of Decision 30-11-2009

Sh.Chitter Singh son of Sh. Bhikham Ram resident of village Saletar, Post Office Saleter, Illaqua Tungal, Sub Tehsil Kotli, District Mandi, H.P.

…Complainant
V/S

1. National Insurance Company Mandi, through its Senior Manager, Mandi, H.P.

2. Himachal Gramin Bank Kotli, Tehsil Sadar, District Mandi, H.P.

…..Opposite parties

For the complainant Sh. Bimal Sharma , Advocate

For the opposite partyNo.1 Sh.K.S.Sen , Advocate

For the opposite party No.2 Smt. Kiran Narula, Advocate
Complaint under Section 12 of the

Consumer Protection Act, 1986.

ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties .The case of the complainant is that he got insured his mule with the opposite party No.1 in the sum of Rs.21,000/- through the opposite party No.2. During the currency of the policy, the tag allotted to the mule had lost somewhere and he informed the opposite party about the same and with the help of opposite party No.2 the mule was retagged on 6-8-2008 as per Medical Certificate attached. The mule died during the currency of the policy and then complainant staked his claim with the opposite parties and completed all the formalities, but the opposite party No.1 raised false and frivolous objections that the insured mule has not died as tag No.421200/01883 was allotted to it whereas the mule died was bearing tag number OIC 23520/33728 and closed the file as No Claim. The complainant alleged that he had duly informed the opposite party No.2 about loss of tag and the mule was retagged with the help of the opposite party No.2 and he was apprised by the opposite party No.2 that the opposite party No.1 would be informed accordingly. The complainant has alleged that the repudiation of the claim amounts to deficiency in service on the part of the opposite part No.1 . On these facts , the complainant has sought a direction to the opposite party No.1 to pay Rs.21,000/- , with interest from the date of death of the mule and also to pay cost of complaint.

2. The opposite party No.1 resisted the complaint and averred that the mule of the complainant was insured from 28-6-2008 to 27-6-2009 ( mid night ) vide tag number 421200/01883 in the sum of Rs.20,000/- . The opposite party No.1 stated that neither any intimation was given to it regarding the loss of tag nor retagging was done with the intimation to it. The opposite party No.1 averred that the case which was sent to it was not insured with it . It has been denied that the re- tagging of the mule was done with its consent and in the presence of the insurance company. It has further been averred that the opposite party No.1 had not at all been intimated . The opposite party No.1 had prayed for dismissal of the complaint qua it .

3 The opposite party No.2 has resisted the complaint and raised preliminary objections that the complainant has no enforceable cause of action against it , that as per the loan agreement complainant is liable to repay the loan amount with interest and that the amount recovered from the opposite party No.1 sought to deposited with it and that there is no deficiency in service on its part . On merits, the opposite party No.2 had admitted the finance of the mule by it and the same was got insured with the opposite party No.1 vide ear tag no 421200/01883. The opposite party No.2 had admitted that the complainant informed it about the loss of ear tag of the insured mule and also about its death due to fall which information was duly conveyed to the opposite party No.1. The opposite party No.1 has supplied the ear tags to the opposite party No.2 to be supplied to the borrowers , if insured animal tag is lost or misplaced . The opposite party No.2 had admitted that it had given new tag OIC-23520/33728 for its application in the ear of insured mule through the Veterinary Doctor on 6-8-2008. . The opposite party No.2 has contended that it had sent the information to the opposite party No.1 about retagging . The opposite party No.2 further contended that deceased mule was insured one and repudiation of the claim of the complainant is factually wrong . The opposite party No.1 has prayed that , in case , award of any amount in favour of the complainant and against the opposite party No.1 is passed ,said amount be deposited with it as the complainant has not been making the repayment as per of the loan documents.

4. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.

5. We have heard the ld. counsel for the parties and have carefully gone through the record of the case . The case of the complainant is that he got his mule insured with the opposite party No.1 in the sum of Rs.21,000/- through the opposite party No.2 and tag No.421200/01883 was allotted to it . During the currency of the policy, aforesaid tag allotted to the mule had lost somewhere and he informed the opposite party No.2 who had advanced the loan for the purchase of the mule and with the help of the opposite party No.2, the mule was re-tagged vide No. OIC-23520/33728. The grievance of the complainant is that the claim has been repudiated by the opposite party No.1 on the sole ground that the deceased mule was not the insured one which was insured with it and retagging was not done with intimation to it and no intimation was given to it regarding the loss of tag.

6 Now the question which arises for consideration before this forum is as to whether the opposite party was justified in repudiating the claim . It has been admitted by the opposite party No.2 who is the financer of the mule in question that the deceased mule was the same which was insured with the opposite party No.1 and in its reply it has specifically been averred that the complainant had informed it about the loss of ear tag of the mule and he had been given new ear tag bearing number OIC-23520/33728 for its application in the ear of insured animal and the same was retagged through the Veterinary Doctor on 6-8-2008. The opposite party No.2 has filed the medical report regarding the retagging of the mule in question. Further case of the opposite party No.2 is that it had sent Medical report to the opposite party No.1 alongwith information of retagging of the animal and the death of the insured mule was also conveyed to the opposite party No.1 alongwith requisite documents. In our opinion, the onus was upon the opposite party No.1 to prove and establish that the dead mule was not the same which was insured with it. The case of the opposite party No.1 is that the Bank official in connivance with the complainant had developed the story of retagging . However , no material has been placed on record by the opposite party No.1 to this effect. In our opinion, the allegations of the opposite party No.1 regarding connivance of the Bank Official is totally unfounded because we fail to understand as to why a Bank official in the discharge of his official duties connive with the complainant to develop the story of retagging. It has been specifically averred by the opposite party No.2 that ear tags have been supplied by the opposite party No.1 i.e. the insurer itself to the opposite party No.2 i.e. the Bank so that the ear tags could be supplied to the concerned borrowers including the complainant whenever the ear tag of their insured animal is lost or misplaced . Affidavit of Sh.Arvind Arora , Branch Manager , has also been adduced in evidence in support of their averments. It has nowhere been denied by the opposite party No.1 that the ear tags had not been supplied to the opposite party No.2 to be further allotted to the insured animal in case of loss of original tag and Bank had no authority to issue the same .Copy of Medical report dated 6-8-2008 has also been placed on record which suggests that the retagging had been done to the insured animal by the concerned doctor. The opposite party No.2 had also filed letter dated 7-3-2009 addressed to the opposite party No.1 regarding the fact that re-tagging of the mule had been conveyed to it . Therefore, in the entirety of circumstances , we have no hesitation to conclude that the complainant has proved that the deceased mule is the insured one and that the opposite party No.1 had been deficient in providing service by repudiating the just and genuine claim of the complainant .

7 The complainant has claimed the insured sum of mule in the sum of Rs.21,000/-. The opposite party No.1 in its reply has stated that the insurance was sum in the sum of Rs.20,000/- and as per the policy also the insurance of the mule was in the sum of Rs.20,000/- which was valid from 28-6-2006 to 27-6-2009. Hence , we are left with no option except to admit the policy which is authentic document and award Rs.20,000/- on account of death of the insured mule to the complainant.

8 In the light of above discussion, the complaint is allowed and the opposite party No.1 is directed to pay Rs.20,000/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party No.1 is also directed to pay to the complainant Rs.1000/- on account of compensation for harassment suffered by him and also to pay a sum of Rs.500/- as costs of litigation.

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

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

Consumer Complaint No: 107/2007

Date of presentation: 23.04.2007

Date of decision: 25.11.2009

Sh. Dharam Prakash, S/o Late Sh. Daya Nand,

R/o Vill. Dargi, P.O. Sainj Tehsil Suni,

District Shimla, H.P.

… Complainant.
Versus

1. National Insurance Company Ltd.

New Land Estate Circular Road, Shimla,

Through its Branch Manager.

2. Bank of India, Vill. Dargi, P.O. Sainj

via Dhami District Shimla,

Through its Branch Manager.

…Opposite Parties

For the complainant: Mr. B.R. Sharma, Advocate
For the Opposite Parties: Mr. Jagjeet Bagga, Advocate.


O R D E R:

Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainant, by invoking the provisions of section 12 of the Consumer Protection Act, 1986. The complainant avers that, he, availed a loan of Rs.36,000/- from the OP No.2, for purchase of two buffaloes, which were insured by him with the OP No.1. It is averred that one buffalo died, on, 22.02.2006, hence, the information regarding its death was sent to the OP No.1-Company. The complainant further proceeded to aver, that, thereafter an insurance claim was also lodged with the OP-Company, but the OP-Company, failed to settle the insurance claim. Hence, it is averred that, there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, admitted the fact of insurance and issue of insurance cover. It is, also admitted that the intimation was sent to them by the complainant regarding death of one buffalo. Since, the complainant, did not surrender the ear tag of the live stock, hence, it being violation of the terms and conditions of the insurance policy, the OP-Company, repudiated the claim of the complainant. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

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

5. The complainant, is, aggrieved by the act of the OP-Company, in not defraying him, the insured sum on account of death of live stock. The OP-Company, has contended that the complainant did not surrender the ear tag of the live stock, hence, non-production having infracted the terms and conditions of the insurance policy, the OP-Company, was well within its right, to, repudiate the claim of the complainant.

6. The only point, which requires adjudication, by this Forum, is, when the complainant did not submit the ear tag of the live stock to the OP-Company and its consequential effect. Though, the complainant, has sworn, an, affidavit detailing the fact that all the documents, were forwarded to the OP No.1-Company, for settlement of the insurance claim, yet, the said affidavit has been repulsed by the OP-Company, by filing the affidavit of Shri Gurdip Singh, Branch Manager. Since, it is admitted case interse the parties, that, one of the insured buffalo, died, on 22.02.2006, during the currency of the insurance policy. Thereafter, the complainant, forwarded the required documents, to the OP-Company, along with ear tag, yet the OP-Company, denied the insurance claim, on the ground of non-submission of ear tag qua which fact no cogent proof has been adduced. The fact that the live stock was having an ear tag, has also, been referred in the post-mortem report of Veterinary Officer, Annexure C-7. Since, the live stock was having ear tag, when it was subjected to postmortem, hence, in our view, the claim of the complainant, cannot be denied by the OP-Company, on the ground of non-submission of its ear tag to it by the complainant, especially when the fact of its demise, is, not disputed.

7. As a sequel of the above, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of Rs.18,000/- along with interest at the rate of 9% per annum, from the date of filing of the complaint, i.e. 23.04.2007, till actual payment is made. In addition to this, the OP-Company shall also pay litigation cost of Rs.1000/- to the complainant. This order shall be complied with, by the OP-Company within a period of forty five days, after the date of receipt of copy of this order.

8. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Consumer Complaint No: 33/2008

Date of presentation: 22.04.2008

Date of decision: 12/11/2009.

Dr. Reena Gupta, M.S. Eye Surgen,

Main Market, Paonta Sahib,

Distt. Sirmour, H.P.
… Complainant.

Versus

National Insurance Company,

Paonta Sahib, Distt. Sirmour.

…Opposite Party.

For the complainant: Mr. R.S. Negi, Advocate.

For the Opposite Parties: Mr. V.R. Chauhan, Advocate.
O R D E R:

Sureshwar Thakur (District Judge) President:- This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that she, got herself insured under Doctor’s Package Policy, for a sum of Rs.2,00,000/-. She averred that the amount of insurance charged from her, was at, exorbitant rates and was very excessive of schedule for such premium. She further alleged that other doctors of some other place namely Dr. Ravi Trahan, was charged at some other rate. The complainant further proceeded to aver that she vide letter dated 28.12.2006, brought the said irregularities to the notice of the OP-Company, but of no avail. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, contended that besides the indemnity to doctor for error and omission, the insurance purchased by the complainant also covers the risk of 800 out-patients and 100 in-patients. It is denied that higher rate has been charged from the complainant, rather she has been charged in accordance with the approved premium for the risk. Hence, it is contended that there was no deficiency in service on their part.

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

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

5. The complainant purchased medical policy along with indemnity, for Rs.2,00,000/- from the OP-Company. She, is, aggrieved by the act of the OP-Company, in, charging, an, untenably exorbitant premium of, Rs.22,522/-, of which he claims a refund, from, the, OP-company.

6. The OP-Company, in its reply, has contended that the risk contemplated in the policy purchased by the complainant from the OP-Company, did not, only cover the risk of indemnity to doctor, but, also, covered the risk of 800 out-patients and 100 in-patients, hence, given the risk contemplated in the insurance cover, the premium, as, charged, was in accordance with the premiums chargeable for the risk contemplated in the policy. The said reply of the OP-company, is, supported by duly sworn affidavits of the authorized functionary of the OP-Company, hence, the contention in the reply of the OP-Company, is, to be accorded sanctity, especially, when the complainant has not been able to rebut its probative value, so as, to, demonstrate that, the premium as charged by the OP-Company, was, not in accordance with Rules.

7. Resultantly, we find no substance in this complaint and it being without any merit, is, liable to be dismissed. Ordered accordingly. No order as to the costs. The learned counsel for the parties have undertaken to collect the certified copy of this order from the office. The file after due completion, be consigned to record room.

Consumer Complaint No: 27/2008

Date of presentation: 21.04.2008

Date of decision: 11/11/2009.

Sh. Devi Ram, S/o Sh. Shiv Ram,

R/o Vill. Khari P.O. Kotri Beas,

Tehsil Paonta Sahib, Distt. Sirmaur H.P..
… Complainant.
Versus

National Insurance Company Limited,

through its Branch Manager, Branch Office Near,

‘Y’ Point, Paonta Sahib, Distt. Sirmour.

…Opposite Party.


For the complainant: Mr. Amit Semwal, Advocate.

For the Opposite Parties: Mr. V.R. Chauhan, Advocate.

O R D E R:

Sureshwar Thakur (District Judge) President:- This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is owner of tractor bearing registration No.HP-17-6404, which was got insured, by him, with the OP-Company valid from 31.05.2006 to 30.05.2007. It is averred that while ploughing the fields, at, village Khari, Tehsil Paonta Sahib, the aforesaid tractor turned turtle in the field, as a result of which it was damaged causing extensive loss. Thereafter, the matter was brought to the notice of the OP-Company and insurance claim of Rs.33,090/- was lodged with them. But the OP-Company instead of settling the claim, repudiated the same, on flimsy ground. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, contended that the insurance claim was got assessed by them from surveyor & Loss Assessor, which is only payable, if there is no breach of the policy condition. They further contend that since, the tractor was being used for purpose other than agriculture, hence, the claim was repudiated. Hence, it is contended that there was no deficiency in service on their part.

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

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

5. The complainant, is, aggrieved by the act of the OP-Company, in not indemnifying him, for the loss suffered by his insured tractor. The OP-company, has denied the claim of the complainant, on the purported ground, that, the tractor at the relevant time, was being used, for, purpose other than agriculture, hence, its user contravened the terms and conditions of the insurance policy, hence, the claim was rightly repudiated.

6. However, nothing has been brought on record by the OP-Company before us, as to construe that the tractor was being used for purposes, other, than, agriculture. Hence, in the absence of definite evidence on record, it, cannot be held that the insured tractor was being used for purposes other, than, agriculture. Rather, the complainant has specifically asserted in his complaint, that, when the tractor was being used for agriculture purpose, i.e. for ploughing the field, it turned turtle, resulting, in, extensive loss. This assertion, having remained unrebutted and un-controverted, on record, therefore, for want of rebuttal, we, hold that the tractor when it met with accident, was being used for agriculture purpose. As such, the repudiation of the claim of the complainant, was neither tenable nor justifiable, which clearly amounts, to deficiency in service.

7. The complainant has claimed a sum of Rs.35,737/- on account of the repair charges and has placed on record photo copy of the repair bill dated 06.09.2007. On the other hand, the OP-Company is reply on the report of the surveyor Annexure OP-1, who has assessed the loss at Rs.29,903/-. The aforesaid surveyor report having remained unrebutted on record, has to be accorded sanctity, for assessment of the loss, suffered by he complainant.

8. Resultantly, the compliant and allowed, and the OP-Company is directed to indemnify the complainant to the extent of Rs.29,903/- along with interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 21.04.2008, till actual payment is made. The litigation cost is quantified at Rs.1500/- payable by the OP-Company, to the complainant. This order shall be complied with by the OP-Company, within a period of forty five days, after the date of receipt of copy of this order. The learned counsel for the parties have undertaken to collect the certified copy of this order from the office. The file after due completion, be consigned to record room.

Consumer Complaint No: 49/2007

Date of presentation: 01.05.2007

Date of decision: 11/11/2009.
Sh. Mahinder Singh, S/o Sh. Kanshi Ram,

R/o Ward No.2, House No. 178, Badrinagar,

Paonta Sahib, Distt. Sirmour. (H.P.)



… Complainant.

Versus

1. National Insurance Company Limited, near ‘Y’ Point, Paonta Sahib, Through its Branch Manager.

2. National Insurance Company Ltd, Regd. Office No. 3, Midilton Street, Kalcutta-700071,

Through its Senior Divisional Manager.

…Opposite Parties.


For the complainant: Mr. Pankaj Khanduja, Advocate.

For the Opposite Parties: Mr. P.S. Chauhan, Advocate.
O R D E R:

Sureshwar Thakur (District Judge) President:- This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is owner of Tempo bearing registration No.HP-17B-0216 which was got insured, by him, with the OP-Company vide insurance policy bearing No.420282/31/84/6304063, valid from 03.01.2005 to 02.01.2006. It is averred that on, 02.07.2005, the aforesaid vehicle met with an accident, and suffered extensive loss. As usual, the matter was brought to the notice of the OP-Company, as well, as, to the notice of the Police. Thereafter, the insurance claim, was lodged with the OP-Company, who instead of settling it, repudiated the same, on the ground that the driver of the afflicted vehicle was not having valid and effective driving lience to drive the same. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, contended that the complaint is not maintainable, inasmuch, as, there is no deficiency in service and that the complainant was not having valid and effective driving licence to drive the afflicted vehicle. On merits, the same plea has been raised by the OP-Company, to deny the claim of the complainant. Hence, it is contended that there was no deficiency in service on their part.

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

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

5. The complainant, is, aggrieved by the repudiation of his claim by the OP-Company, on the purported ground, that, the driver of the afflicted vehicle not possessing a valid and effective driving licence, to drive the category of vehicle, which he was driving at the relevant time. The OP-Company, in canvassing before, us, that the driver of the afflicted vehicle, did not possess a valid and effective driving licence, has, placed reliance on Annexure R-2. However, the complainant controverts, the, said plea, as, addressed before us, by placing reliance upon driving licence which bears a certificate of the Motor Licensing Authority, Paonta Sahib certifying, that, the driving licence issued by the Motor Licensing Authority has been renewed, upto, 17.02.2008 w.e.f. 18.02.2005.

6. Even though, the driving licence as relied upon by the OP-Company, in, repudiating the claim of the complainant, does not bear the said endorsement, which the driving licence as relied upon by the complainant does bear, yet, the validity or authenticity of the endorsement existing in the licence as relied upon by the complainant, has not been sought to be impeached by adduction of original record from Motor Licensing Authority, whose adduction would have lent force the contention of the OP-Company, that, endorsement as existing in the driving licence as relied upon by the complainant, is, fictitious. For the aforesaid reasons, when the driving licence was in vogue on the date of accident and, it, hence, authorized its driver, to, drive the category of vehicle, the objection as put forth by the OP-Company in repudiating the claim of the complainant, is, untenable, which amounts to deficiency in service.

7. Now, comes the amount of indemnification payable by the OP-Company to the complainant. The complainant is claiming compensation of Rs.9,956/- from the OP-Company, whereas, the OP-Company is relying on the report of the surveyor Annexure R-1, who has assessed the loss at, Rs.8,268/-. The report of the surveyor having remained un-repulsed and un-controverted, by the complainant, has to be taken into consideration, while assessing the loss suffered by the complainant.

8. Resultantly, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of Rs.8,268/- along with interest at the rate of 9% per annum, with effect from the date of filing of the complaint, till actual payment is made. The litigation cost is quantified at Rs.1,000/- payable by the OP-company to the complainant. This order shall be complied with by the OP-company, within a period of forty five days, after the date of receipt of copy of this order. The learned counsel for the parties have undertaken to collect the certified copy of this order from the office. The file after due completion, be consigned to record room.

Consumer Complaint No: 05/2007

Date of presentation: 10.01.2007

Date of decision: 11/11/2009.

Sh. Randev Singh, S/o Sh. Kabal Singh,

R/o Vill. Nihalgarh, Tehsil Paonta Sahib, Distt. Sirmour.

… Complainant.
Versus

1. National Insurance Company Limited,

Division XV, 18 Rabindra Sarani, Poddar Court, Gate No.

4, 6th Floor, Kolkata-700001,

Through its Divisional Manager.

2. National Insurance Company,

Y- Point, Paonta Sahib, Distt. Sirmour (H.P.)

Through its Branch Manager.

…Opposite Parties.
For the complainant: Mr. Pankaj Khanduja, Advocate.

For the Opposite Parties: Mr. Pardeep Chauhan, Advocate.

O R D E R:

Sureshwar Thakur (District Judge) President:- This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is owner of truck bearing registration No.HP-17A-6017, which was got insured, by him, with the OP-Company vide insurance policy bearing No.150100/31/05/63000013297, valid from 10.09.2005 to 09.09.2006. It is averred that on, 11.02.2006, the aforesaid vehicle met with an accident, and suffered extensive loss. As usual, the matter was brought to the notice of the OP-Company, as well, as, to the notice of the Police. Thereafter, the spent an amount of Rs.1,30,757.25 on the repair of the vehicle to make it road worthy, but the OP-company only defrayed him a sum of Rs.57,394/-, withholding a sum of Rs.78,279.25. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, contended that the complaint is not maintainable, inasmuch, as, there is no deficiency in service and further that the complainant has received the entire payment in full and final settlement of the claim, as per the loss assessed by the surveyor. On merit, it is contended that the complainant has been indemnified as per the report of the surveyor and loss assessor and hence, nothing is payable to him. Hence, it is contended that there was no deficiency in service on their part.

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

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

5. The complainant, is, aggrieved, by the act of the OP-Company, in not defraying to him the entire expenses incurred by him in making the vehicle road worthy. The OP-Company, contests the assertion of the complainant on the ground that the bills, as relied upon by the complainant for canvassing, his, plea, that, their was deficient defrayment to him, by the OP-Company, did not come to be transmitted to it, by the complainant, hence, the expenses reflected in it neither came be considered nor defrayed to him. Since, the, essence, of the, repudiation of the OP-Company, is, anvilled upon, the above contention and when the complainant have not been able to adduce any evidence, that, the, bills on which he is relying upon, for, us, to, countenance his grievance, that, the entire expenses reflected in them and as purportedly incurred by him for making the vehicle road worthy, were, transmitted by him to the OP-company, as such, the contention as raised by the OP-Company, in not defraying the expenses reflected in them, has to be construed to be tenable.

6. Nonetheless, since the bills have neither been considered nor rejected, therefore, we deem fit and in the interest of justice, that, on the complainant forwarding to the OP-Company, the bills of expenses incurred by him in making the vehicle road worthy, the, OP-Company, shall consider the said bills and, then, in case they are found to be authentic, shall proceed to indemnify the complainant in accordance with Rules. This exercise shall be completed by the OP-company, within a period of forty five days, after the receipt of the bills by it, from the complainant. No order as to the costs. With this, the complaint stands disposed of. The learned counsel for the parties have undertaken to collect the certified copy of this order from the office. The file after due completion, be consigned to record room.