Consumer Complaint No: 95/2007

Date of presentation: 05.09.2007

Date of decision: 11/11/2009.

Sh. Vijay Kumar S/O Shri Sumer Chand,

R/O V.P.O. Sarahan, Tehsil Pachhad,

District Sirmour, H.P.

… Complainant.

Versus

1. National Insurance Company Limited,

Through M.D.

Regd. Office: 3, Middleton Street Calcutta

700071.

2. Branch Manager,

National Insurance Company Limited,

The Mall Solan, H.P.
…Opposite Parties.
For the complainant: Mr. Arun Kumar, 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 vehicle bearing registration No.HP-18A-0715, which was got insured, by him, with the OP-Company, for a sum of Rs.3,36,000/-, commencing from 06.07.2005 to 05.07.2006. It is averred that on, 16.05.2008, 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, he got the vehicle repair in order to make it road worthy and lodged the insurance claim with the OP-company, who failed to settle the claim. 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, the driver of the vehicle did not possess a valid and effective driving licence, at the time when the vehicle met with an accident and some unauthorized passengers were traveling in the vehicle, hence, it comprising a violation of the terms and conditions of the insurance policy, the OP-company, had no other option, but, to, repudiate 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 OP-Company, has denied the claim of the complainant on the ground, that, the driving licence as held by the driver, who, was driving the vehicle, at, the relevant time, was not issued by the competent authority, hence, did not authorize him, to, drive the category of the vehicle. In support of this contention, the OP-company, is, placing reliance on Annexure OP-5, which, is, the copy of report prepared by Investigator Shri Raghubir Singh Bedi, on whose requisition, the Licensing Authority, M.V. Department, Dehradoon, Uttrakhand, has, reported, that, the, DL No.2048/DD/90 has not been issued by their office, hence, the driver while possessing the aforesaid driving licence, which was not issued by the competent authority, was, disempowered, to, drive the category of vehicle, at, the relevant time.

6. The complainant has, also, not brought on record either the copy of the drivng licence or the original licence, possessed by the driver, who, was drivng the afflicted vehicle, at the time, when, it, met with an accident. The complainant has, also, not been able to rebut the report issued by Licensing Authority, reporting, that, the licence possessed by the driver, was not issued by the said authority. Hence, for lack of rebuttal to the above, the OP-Company cannot be held guilty of rendering any deficiency in service, in, theirs, repudiating the claim of the complainant. As such, the repudiation of the claim of the complainant, by the OP-Company, cannot be said to be said suffering from any illegality.

7. In the light of the above discussion, the complaint being without any merit deserves dismissal and we order accordingly, leaving the parties to bear their own cost. 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.

COMPLAINT No.434/10.6.2009.

Date of order: 13.11.2009.
1. Harcharan Singh aged about 61 years, son of Sh. Jhanda Singh.

2. Smt. Jasbir Kaur, aged about 32 years, widow of Sh. Paramjit Singh son of Sh. Harcharan Singh.

3. Amrinder Singh, aged about 14 years,

4. Amrik Singh, aged about 12 years,

Complainants no.3 & 4 are the minor sons of Sh. Paramjit Singh. Both minors through their mother, natural guardian & next friend Smt. Jasbir Kaur widow of Sh. Paramjit Singh.

All residents of village Jewnewal, P.S. Koom Kalan, Distt. Ludhiana.

(Complainants)

Vs.
1. The General manager, National Insurance Co. Ltd. Divisional office Link Road, near Atam Park, Ludhiana.

2. The branch Manager, National Insurance Co. Ltd. branch Office near Ujjagar Service Station, Dhulkot Road, Ahmedgarh, Distt. Sangrur.

(Applicant/Opposite Parties)

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

IN RE: APPLICATION FOR DISMISSAL OF THE COMPLAINT FOR WANT OF TERRITORIAL JURISDICTION.

--------------------------------------------------------------------Quorum:

Sh. T.N. Vaidya, President.

Sh. Rajesh Kumar, Member.

Smt. Priti Malhotra, Member.
Present:

Sh. Jasbir Singh Bhogal Advocate for the complainant.

Sh. Rajiv Abhi Advocate for opposite parties.
O R D E R

T.N. VAIDYA, PRESIDENT:

1. This order shall dispose off an application moved by the OP-Insurance Company for dismissal of the complaint for want of territorial jurisdiction.

2. Necessary facts leading to filing of the application by the opposite party are that complainant instituted this complaint under section 12 of the Consumer Protection Act, 1986 for direction to opposite party to pay claim amount of Rs.1,00,000/- on account of death of Sh. Paramjit Singh. Sh. Paramjit Singh deceased had taken from OP No.2 insurance policy no.401308/9600001/98 for Rs.1,00,000/-. He died in an accident and after death the claim lodged was not paid. Hence, this complaint.

3. Opposite party in application pleaded that policy in question was obtained by M/s Star Gold Mine Chits P.Ltd. from National Insurance Company Ltd. Dhulkot Road, Ahmedgarh, Distt. Sangrur. Deceased Paramjit Singh was one of the beneficiary under the policy. Policy was issued at Ahmedgarh, Distt. Sangrur and was also cancelled by Ahmedgarh branch of Insurance Company. No cause of action accrued to the complainant in Ludhiana and as such this Fora has no territorial jurisdiction to try the complaint.

4. We have heard the ld. counsel for the parties on this preliminary objection of the opposite party.

5. According to ld. counsel for the complainant, agent of opposite party no.2 came to Ludhiana where he issued policy in favour of Sh. Paramjit Singh. However, we can not believe such aspect. Because, the policy is not an individual policy, but it is a group insurance policy obtained by M/s Star Gold Mine Chits P.Ltd. Ahmedgarh, Distt. Sangrur, as apparent from annexure 8. Deceased Paramjit Singh was one of the beneficiary of the policy. As such, policy appears to be taken from Ahmedgarh branch of the Insurance Company who have repudiated the claim. No cause of action accrued to the complainants in Ludhiana. So, this Fora would have no jurisdiction to entertain, try and decide this complaint.

6. For coming to such conclusion we stand fortified by decision of the Hon’ble National Commission reported III (2003) CPJ 144 (NC) in case National Insurance Co. Ltd. Vs. Sonic Surgical. In that case insured goods were located at Ambala Cantt. and policy was obtained from Ambala. Claim was lodged with branch office at Ambala. Compensation accepted at Ambala. Case was dealt with at some stage by Regional Office at Chandigarh. So, concluded that mere dealing of claim would not furnish part of cause of action entitling Hon’ble Union Territory State Commission, Chandigarh to try the case.

7. In this case also no cause of action accrued to the complainant at Ludhiana. Policy was obtained from Ahmedgarh. Claim lodged at Ahmedgarh and repudiated by Ahmedgarh branch. Consequently, this Fora has no jurisdiction to try and decide the complaint. Therefore, application of opposite party is allowed and concluded that we have no jurisdiction to try the complaint. Consequently, same is ordered to be returned to the complainant for presentation before the proper Fora at Sangrur. Copy of the order be made available to the parties free of costs.

Office Superintended to return the complaint to the complainant after making necessary endorsement.

Complaint No.85/06.05.2009
Decided on : 27.11.2009
Sh.Gurcharan Singh S/o Sh.Kaur Singh resident of Village Sadhuwala, Tehsil Sardulgarh and District Mansa.
..... Complainant.
VERSUS
1.

Med Save Health care Limited, F-701, A, Lado Sarai, Mehroli, New Delhi through its Managing Director or other competent authority.


2.

National Insurance Company Limited, Mansa, through its Manager.


3.

The Phoos Mandi Cooperative Agriculture Service Society limited, Phoos Mandi, Tehsil Sardulgarh, District Mansa through its Secretary.


4.

The Additional Registrar, Punjab State Cooperative Bank Limited, Sector 34-A, Chandigarh or any other competent authority.

..... Opposite Parties.


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


Present: Sh.Gurwinder Singh, Advocate counsel for the complainant.

Sh.P.K. Singla,Advocate counsel for Opposite Party No.1& 2.

Sh.B.D.Jindal, Advocate counsel for Opposite Party No.3&4.

Before: Sh.P.S. Dhanoa, President.

Sh.Sarat Chander, Member.

Smt.Neena Rani Gupta, Member.


ORDER:-

Sh.P.S.Dhanoa, President.

The instant complaint has been filed by Sh.Gurcharan Singh son of Sh.Kaur Singh, a resident of Village Sadhuwala, Tehsil Sardulgarh

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District Mansa, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act'), for giving them direction, to pay him a sum of Rs.2,00,000/-, as costs of treatment of his hip joint, alongwith interest, at the rate of 18 percent, per annum, with effect from the date of operation, till the date of payment and for payment of costs, in the sum of Rs.3,500/-, on the averments, which may, briefly be described as under:

2. That he owns agricultural land, at village Sadhuwala. He became the member of Bhai Ghanaya Sehat Sewa Scheme, launched by the Government of Punjab, for members of Cooperative Agricultural Society, in the State of Punjab and their family members. A premium in the sum of Rs.1,611/-, was deposited, on 26.8.2008, by the complainant, to his society, who further remitted the amount of all the members, in the sum of Rs.92,416/-, to OP No.1, as such, complainant and members of his family, are entitled, to invoke the jurisdiction of this Forum. The OP No.1, being third party administrator, of OP No.2, was under obligation, to issue identity cards, in the name of the complainant and members of his family, for meeting expenses, in case of their admission, or treatment in the hospital. As the OP No.1, failed to issue the identity cards, the complainant filed application, on 16.12.2008, to OP No.4, which was registered, at Sr.No.732, in his office, who forwarded the same, to OP No.1, but the complainant, has not received the identity cards, till the date of filing of the complaint.

3. The complainant suffered problem in his left hip, for treatment of which, he approached Medicity Hospital, on the panel of the OP No.2, at Ludhiana, on 15.12.2008. The said hospital, failed to provide him treatment, for want of identity card, after which he approached the Dayanand Medical College and Hospital, Ludhiana, where he remained

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admitted, from 16.2.2009 to 25.2.2009, under admission No.2009-5259 and he spent a sum of Rs.1,50,000/-, on his treatment, for replacement of left hip. The complainant approached the opposite parties, on telephone conveying them, intimation regarding his hospitalization and treatment and requested them for providing cashless service, under the scheme, but they did not bother, as such, payment of his treatment, was to be made by the complainant, from his own pocket. He has suffered mental and physical harassment, due to deficiency in service, on the part of the opposite parties, as such, he is entitled to reimbursement of the amount spent by him, on his treatment and for payment of Rs.50,000/-, on account of mental and physical harassment and a sum of Rs.3,500/-, as costs of filing of the instant complaint. At the end a prayer has been made, for grant of any other relief, deemed fit by this Forum.

4. On being put to notice, Opposite Party No.1 filed written version, resisting the complaint, taking preliminary objections; that the complainant, is not the 'consumer' within the purview of its definition given in the Act, as such, complaint, is not maintainable; that complainant, has no cause of action, and locus standi, to file the complaint, which is bad for mis-joinder and non-joinder of necessary parties; that the complainant, has suppressed/mis-represented the material facts, and has not approached this Forum with clean hands, as such, his complaint, being false and vexatious, is liable, to be dismissed, with costs. On merits, it is submitted, that complainant be put to strict proof, of acceptance of his proposal, by OPs No.1and 2. It is also reiterated, that complainant is not consumer, under the answering opposite party. Rest of the averments made in complaint have been denied and a prayer has been made for dismissal of the same with costs.

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5. The Opposite Party No.2 filed separate written version, taking the same preliminary objections, as those taken by the OP No.1, in his written version. The same is the position on the merits of the case, but it is denied, that there is any deficiency in service, on the part of the answering opposite party. Rest of the averments made in complaint have been denied and a prayer has been made for dismissal of the same with costs.

6. The Opposite Party No.3 and 4, in their written version, resisted the complaint, taking preliminary objections, that complainant is not consumer of the OP No.3, within the ambit of its definition, given in the Act; that this Forum has no jurisdiction, to entertain and try the complaint and complainant, has no locus standi, to seek compensation, from the answering opposite parties, because they are not deficient in rendering service and have performed their part. On merits, it is admitted, that complainant, is member of OP No.3 society and he deposited a sum of Rs.1,611/-, on 26.8.2008, on account of premium, for becoming the member of Bhai Ghanaya Sehat Sewa Scheme, launched by the Government of Punjab, for members of Cooperative Agricultural Society, in the State of Punjab and their family members. It is submitted, that amount of premium, paid by all the members, was forwarded, to the trust, vide demand draft No.961749, drawn in the sum of Rs.92,416/-, through various authorities of Cooperative Department of the State of Punjab. It is submitted, that OPs No.1 and 2, had issued the identity cards, to the members of the society, except the complainant, whose name appeared, at Sr.No.42, of the list and have failed, to take any action, despite issuance of reminders. It is also submitted, that application filed by the complainant, was entered in the office of the OP No.4, at Sr.No.42, and was forwarded, to the OPs No.1 & 2, for issuance of identity card, but they have failed to

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take any action, as such, there is no deficiency in service, on the part of the answering opposite parties and liability, if any, for paying costs of treatment, to the complainant, is of OPs No.1 & 2, because there is unfair trade practice, on their part and they are deficient, in rendering service, to the complainant. It is also submitted that OPs No.1 is Third Party Administrators, of OP No.2, as such, he was duty bound, to issue identity card, to the complainant, after receipt of reminders. Rest of the averments made in complaint, have been denied and a prayer, has been made, for dismissal of the same ,with costs.

7. On being called upon by this Forum to do so, both the parties adduced oral and documentary evidence through their respective counsel.

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

9. At the out set, Learned counsel for the OPs No. 1& 2 Sh. P.K.Singla, Advocate, has argued, that as per Clause No.12, of the terms and conditions of the agreement, between the trust running the scheme and the insurance company concerned, any dispute concerning the enforcement of agreement, is to be decided, as per provisions of Arbitration and Conciliation Act, 1996, as such, complaint in the Consumer Forum, is not maintainable.

10. At this stage, learned counsel for the complainant, Sh. Gurwinder Singh, Advocate, has argued, that complainant is not party, to the agreement, as such he is entitled, to invoke the jurisdiction of the Consumer Forum.

11. On the other hand, learned counsel for the OPs No.3 & 4, Sh. B.D.Jindal Advocate, has argued, that argument advanced by the learned

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counsel for the OPs No.1 & 2, is beyond the scope of pleadings, as such, he cannot be allowed, to create surprise, at this later stage of the proceedings.

12. The argument advanced by the learned counsel for the OPs No.1 & 2, has failed to sound well with us, because at the first instance, the OPs No.1 and 2, have not taken any objection, about the maintainability of the complaint, in view of arbitration clause contained in the agreement, executed between the insurance company concerned and the trust. It is well settled, that parties are not entitled, to raise arguments, beyond the scope of pleadings. Since the OPs No.1 and 2, have not taken any objection, in the written version, for maintainability of the complaint, on the ground of arbitration clause in the agreement between the insurance company and the trust, as such, this objection, is not sustainable. Moreover, the complainant, is not signatory to the agreement. Since he is not party, therefore, any clause, contained in the arbitration clause, regarding resolving of interse dispute, between the insurance company and the trust, is not binding, upon the complainant, and in our considered opinion, he is entitled, to invoke the jurisdiction of the Consumer Forum, and he cannot be non suited, on this technical objection, raised at the first time, by the OPs No.1 and 2, in the course of arguments.

13. Learned counsel for the complainant has drawn our attention to various documents, placed on record, showing that complainant, was member of the OP No.3 society, who opted to become member of the Bhai Ghanaya Sehat Sewa Scheme, launched by the Government of Punjab, for members of Cooperative Agricultural Society and paid premium in the sum of Rs.1,611/-, on 26.8.2008 and the society remitted the amount, deposited by all the 15 members, in the sum of Rs.92,416/-, vide demand draft No.961749, to OP No.1, alongwith list of members, wherein the name

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of the complainant, is mentioned at Sr.No.42. Learned counsel, has argued that, as per documents placed on record, the society of the complainant, forwarded his application, for issuance of identity card, to him and members of his family, to OPs No.1 and 2, through Assistant Registrar of Cooperative Societies, but no action thereupon, has been taken and the Medi City hospital, on the panel of the opposite parties, was approached, by the complainant, who refused to provide cashless service, owing to which he has got replaced his left hip, from the Dayanand Medical Hospital and College, Ludhiana, as such, OPs No.1 and 2, are deficient in rendering service and are liable, to reimburse the amount, for replacement of his left hip, in the sum of Rs.1,50,000/-, and to pay him costs and compensation.

14. On the other hand, learned counsel for the OPs No.1 and 2, has argued that there is no positive evidence of enrollment of the complainant and his family members, as members of Bhai Ghanaya Trust and there is no evidence, to support the plea of the OPs No.3&4 that letter relied upon by them, was ever acknowledged by OPs No.1 and 2, about non issuance of identity cards, as such, complaint is not maintainable against OPs No.1 and 2 as negligence, if any, is on the part of the OPs No.3 and 4. Learned counsel also argued, that no claim, has been lodged ,by the complainant, with the OP No.1 and 2 and notice served upon them, is no substitute for the claim, which complainant was ought to have filed before the Third Party Administrator. Learned counsel has argued that complainant is taking advantage of another member of his society, bearing the similar name, but name of their parentage differs, as such, he cannot take advantage of the same. As per documents relied upon by the opposite parties, list of 49 members of the society, were received, which did not

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include the name of the complainant, who has never conveyed any intimation, about his admission and treatment, as such, complaint filed by him, is abuse of process of law and is liable to be dismissed.

15. Learned counsel for the Ops No.3 and 4 has submitted that application, for membership, alongwith premium, deposited by the complainant and subsequent application, filed by him, showing his concern, for non issuance of identity card, were forwarded by the OPs No.3 and 4, to OPs No.1 and 2 through the Cooperative Authorities and OP No.2, has failed, to issue the identity card, despite receipt of reminders, as evident from the copies of documents, tendered in evidence, because of which complainant has been deprived of his treatment, by way of cashless service, under the scheme, launched by the trust. As such, deficiency if any, is on the part of the OPs No.1 and 2 and complaint against OPs No.3 and 4, who have performed their part, without delay, deserves to be dismissed.

16. We have considered the contentions and scrutinized the documents tendered by them in support of their contentions carefully. The factum of complainant becoming the member of the Bhai Ghanaya Trust and deposit of amount on account of premium, by him, on 26.8.2008, is admitted by the OPs No.3 and 4, alongwith the fact that complaint filed by him, showing his concern, about the non issuance of the identity card, was forwarded, to the OPs No.,1 and 2 through the Cooperative Authorities. Even otherwise, the complainant has tendered in evidence copies of enrollment forms Ext.C-44 and list Ext.C-11 of the members of the society, who became members of the trust, wherein his name figures at Sr.No.42 and parentage has been mentioned as "Kaur Singh", a resident of village Sadhuwala, whereas name of another member with the same name is

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mentioned, at Sr.No.24, but his parentage, has been mentioned as "Punjab Singh" a co-villager of the complainant. As such, identity of the complainant, from another person, in the name of Gurcharan Singh, and member of his society, is quite distinct. The OPs No.1 and 2, has tendered in evidence, receipt of enrollment form of members of the society Ext.OP-7 wherein it has been mentioned at Sr.No.88 that total numbers of forms sent by the OP No.3, i.e. society of the complainant, was 49, whereas as per report submitted by the Deputy Registrar, number of forms were 50. However, it is admitted that a sum of Rs.92,416/-, has been remitted by the OPs No.3 and 4, on account of membership fees, to the OPs No.1 and 2. In case the form was short, then it was the duty of the OP No.1, to take up the matter, with the society of the complainant and to remove the defects, or to refund the excess amount, but there is no document, to establish, that OP No.1 and 2, ever initiated any such action. The factum of remittance of amount, with the society of the complainant, in the sum of Rs.92,416/-, is also corroborated, by the copy of Demand Draft Ext.OP-13, and copy of consolidated figure,Ext.OP-14 tendered in evidence by the OPs No.1 and 2 themselves. They have also tendered in evidence copy of receipt Ext.OP-3 of 6013 members alongwith guide books, for use by them, issued by the OP No.1. The opposite party, has also furnished, copies of reply to legal notice dated 15.4.2009 served by the complainant showing that one enrollment form of Gurcharan Singh was found and not of the complainant. The complainant has also tendered photocopy of his election card Ext.C-9 showing the same parentage. The OPs No. 3 and 4 have produced on record a series of documents showing that reminders, were sent, on the basis of the complaints filed by the members of the cooperative societies including the complainant, by the Assistant Registrar,

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Cooperative Societies, showing their concern about the non issuance of identity cards, which were forwarded, to the OPs No. 1 and 2, as established particularly by Ext.OP.16 and 17, but they did not take any action, for issuance of identity cards. In the list of ineligible members Ext.OP-19, tendered in evidence by OPs No.3 and 4, the name of the society of the complainant, does not figure and there is no other proof of disqualification and rejection of membership. As per copy of the agreement Ext.OP-10, duty is cast upon the Third Party Administrator, to assess the enrollment form, and to issue the identity cards, for validity period of the scheme, and he was required, to submit monthly report of enrollment status and issuance of identity card, to the trust, in a prescribed format. These facts are also established, by the affidavit of the complainant Ext.C-1. Dr.Roli Aggarwal, Regional Manager in her affidavit, has stated, on solemn affirmation, that OP No.1, is appointed as Third Party Administrator, for running the scheme of OP No.2 and part of her affidavit, that identity cards, to all the members, were dispatched to all the societies, is not corroborated by any evidence. In our opinion, deficiency in service, in issuance of identity card, if any, was of OPs No.1 and 2, because principle, is also liable, for any omission on the part of the agent. Since OPs No.3 and 4, have performed their role, therefore, no liability, can be fastened upon them, and they are not liable, to pay the amount, spent by the complainant, on replacement of his left hip and compensation and costs, as sought by him in the instant complaint.

17. The factum regarding treatment was not provided by the Medi City, Ludhiana for want of production of identity card, is corroborated by the contents of the affidavit Ext.C-1 of the complainant and prescription slip, Ext.C-13 dated 15.12.2008, issued by the said hospital. The

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complainant, has produced on record, copy of discharge certificate Ext.C-14, showing that he remained admitted, in the Dayanand Medical College and Hospital, Ludhiana, from 16.2.2009 to 25.2.2009, for his treatment. He was diagnosed, by the consultant, as a case of Osteoarthritis left hip with secondary degeneration and chronic suppurative otitis media. The complainant has also tendered in evidence, the bills Ext.C-15 to C-43 issued by the above hospital and other chemists, showing the extent of amount spent by him, in his treatment, in the said hospital. He has also tendered copies of legal notices dated 18.3.2009 Ext,C-45 and C-48 served upon the OP No.1, raising demand of Rs.15,000/-. The factum of dispatch of notices through the registered post, is proved by the postal receipts Ext.C-46 and 47. Since the admission of complainant and spending of amount, is duly proved, to our satisfaction, therefore, the OPs No.1 and 2, cannot be absolved of their liability, and complainant, cannot be denied relief, merely because he has not formally submitted the claim, because deficiency in service in non issuance of the identity card to him, by the OPs No.1 and 2, has been proved. However, as per instructions, contained in the guide book, produced on record, by the complainant and copy of letter dated 2.7.2008 Ext.OP-11, tendered in evidence by OPs No.1 and 2, the upper limit of replacement of left hip joint, under the policy, secured by the society of the complainant, is Rs.1,00,000/-. In these documents, it has been specifically mentioned that any amount, spent by a member, opting for the scheme, beyond the permissible limit, would be borne by him from his own pocket. As such, complainant, cannot claim reimbursement of the amount spent by him, on treatment of his left hip, beyond the permissible limit of Rs.1,00,000/-, although he might have actually spent more amount. He is also entitled, to payment of interest, at the rate

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of 9 percent and adequate amount, on account of costs of filing of the complaint from the date of filing of the complaint i.e. 6.5.2009, till date of actual payment. This Forum cannot direct payment of compensation simultaneously, to the complainant, as we are inclined, to award him interest, at the rate, stated above.

18. In the light of our above discussion, we dismiss the complaint against Opposite Parties No.3 & 4 and accept the same against OPs No.1 and 2 directing them to pay a sum of Rs.1,00,000/-, alongwith interest, at the rate of 9 percent, per annum, from the date of filing of the complaint, i.e. 06.05.2009, till the date of actual payment, with further direction to pay Rs.1,000/-, on account of costs, for filing of the instant complaint. The compliance of the order be made within a period of two months from the date of receipt of the copy of this order.

19. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record.

Complaint No.230/21.08.2009

Decided on : 18.11.2009


Sh.Shamsher Singh S/o Sh.Bahadur Singh, Ward No.9, Near Channi Flour Mill, Mansa.


..... Complainant.


VERSUS


The Branch Manager, National Insurance Company Limited, Old Gaushalla, 1st Floor, Above OBC Bank, Mansa.


.....Opposite Party.


Complaint under Section 12 of the

Consumer Protection Act, 1986.

.....


Present: Sh.Sunil Bansal, Advocate counsel for the complainant.

Sh.N.K.Sharma, Advocate counsel for the opposite party.


Quorum: Sh.P.S.Dhanoa, President.

Sh.Sarat Chander, Member.

Smt.Neena Rani Gupta, Member.


ORDER:-

Sh.P.S. Dhanoa, President.


This complaint has been filed, by Sh.Shamsher Singh son of Sh.Bahadur Singh, a resident of Mansa, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act') against the National Insurance Company Limited, for payment of a sum of Rs.80,000/-, as cost of repair paid by him in terms of the insurance policy and payment of Rs.15000/- as compensation, for mental and physical harassment alongwith

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interest, at the rate of 18 percent, per annum. Briefly stated, the case of the complainant may be described as under:-

2. That he is registered owner of a Toyota Innova bearing registration No.PB-23E-8777. After purchase of the said vehicle, from the original owner, the complainant, submitted requisite documents and paid fees, for transfer of ownership, of the vehicle, in the office of the District Transport Officer, Mansa . During the process of transfer of ownership of the vehicle, it met with road accident, on 20.4.2009. As since the complainant, had secured the insurance policy, for his vehicle, he conveyed intimation, about the accident and submitted bills, alongwith receipt, issued by the District Transport Office, concerned. He has paid a sum of Rs.80,000/-, on receipt of intimation, of the accident and the opposite party, deputed a Surveyor, who visited the place of accident and after checking the vehicle, he submitted his report, to the opposite party, who has failed, to settle his claim, despite expiry of a period of about 4 months, before filing of the instant complaint, as such, complainant is consumer, under the opposite party and there is deficiency in service, on his part, because of which the complainant, has been subjected, to mental and physical harassment and has incurred avoidable expenditure, in filing of the instant complaint. Hence this complaint.

3. On being put to notice, Opposite party filed written version, resisting the complaint, taking preliminary objections; that complainant, is not a consumer, within the ambit of its definition, given in the Act, as such, he has no locus standi, to file the complaint and, that no cause of action, has accrued, in favour of the complainant, to file the complaint, because his case, has not been settled so far, as such, complaint, is not maintainable. On merits, it is submitted that complainant was not owner of the vehicle,

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: 3 :


on the date he secured the insurance policy. It is admitted, that complainant gave intimation, regarding accident of the vehicle, insured with the opposite party, who appointed a Surveyor. It is also submitted, that after repair of the vehicle, complainant submitted the bills of its repair, but it is asserted, that he did not produce the receipt, issued by the District Transport Officer, Mansa. It is also contended, that vehicle, has been registered, in the name of the complainant, after he secured the insurance policy, then he is not entitled, to payment of claim, thereunder. It is denied, that there is any negligence, or deficiency in service, on the part of the opposite party. Rest of the averments made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.

4. On being called upon by this Forum, to do so, the counsel for the complainant tendered his affidavit, and copies of documents Ext.C-1 to C-13 before his counsel closed the evidence. On the other hand, learned counsel for the opposite party, tendered in evidence copies of documents Ext.OP-1 and OP-2 and closed the evidence.

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

6. At the outset, learned counsel for the complainant Sh. Sunil Bansal, Advocate, has submitted, that insurance cover, has been secured, by the complainant and accident, has taken place, during the transfer of ownership of the vehicle, purchased by the complainant, from the previous owner. Learned counsel, has further submitted, that complainant, has conveyed the intimation, about the accident of his vehicle, during validity period of insurance policy and has lodged the claim, but the opposite party,

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has failed, to settle the same, despite submission of report, by the Surveyor, after assessing the loss and verification of facts. Learned counsel has argued, that as per the copies of the estimates and bills, tendered in evidence, by the complainant, he has spent a sum of Rs.80,000/-, for repair of his vehicle, in terms of permission, granted by the Surveyor, appointed by the opposite party, as such, the opposite party, is liable to pay the amount of claim, to the extent of amount actually spent by the complainant and not on the basis of report of the Surveyor, appointed by him, which is not sustainable. Learned counsel has urged, that non settlement of the claim, for considerable time, by the opposite party, amounts to deficiency in service, for which he is liable to pay compensation, for mental and physical harassment and costs of filing of the instant complaint, to the complainant.

7. On the other hand, Sh.N.K.Sharma, Advocate, learned counsel for the opposite party, has argued that complainant, was not owner of the vehicle, insured with the opposite party, as evident from the entries made in the copy of the registration certificate, attached by him, with the claim, as such, he is not entitled, to payment of any amount, under the insurance policy, issued by the opposite party. Learned counsel, has further argued that, even if, this Forum comes to the conclusion, that complainant has, locus standi, to file the complaint and the same is maintainable, then he is not entitled, to payment of any amount, beyond the loss assessed, by the Surveyor and for payment of any amount, on account of deficiency, in service, because claim could not be settled, due to omission on his part, to produce the proof of ownership of the vehicle.

8. The insurance policy, has been secured, by the complainant himself, as evident from the copies of cover notes and policy, tendered by

Contd........5

: 5 :


the parties. The factum of taking place of accident, on 20.4.2009 and damage of the vehicle, is also not disputed. The averments made in the complaint, that complainant had applied, to the District Transport Office, Mansa, for transfer of ownership, before date of accident, are corroborated by his duly sworn affidavit Ext.C-1. In the copy of the Registration Certificate Ext.C-5, tendered in evidence by the complainant, Sh.Jagjit Singh is shown to be the registered owner of the vehicle. He has also not produced any proof, to establish that ownership stands transferred in his name, although the opposite party, has not disputed his ownership at present. In our opinion, the officials of the opposite party, were expected to be vigilant and were required, to exercise due care and caution, at the time of issuance of insurance cover, which should have been issued, after verification of proof of ownership. Since the insurance cover, has been issued, in the name of the complainant, therefore, he has become 'consumer' under the opposite party, who cannot escape liability, to make payment of claim and damage caused to his vehicle. As mentioned in the policy, the complainant, has disclosed the Insured Declared Value(IDV) of his vehicle, as Rs.4,71,000/-, on the date of issuance of the insurance policy and the claim awarded by the Surveyor, appointed by the opposite party, is well within the IDV, mentioned in the policy and period of validity thereof. The opposite party, was expected, to settle the claim of the complainant, within reasonable time. Since the complainant has paid the substantial amount, for damage to his vehicle, in the road accident, therefore, withholding of his claim, without any justification, for considerable time, amounts to deficiency in service on the part of the opposite party, because of which the complainant, has been subjected, to mental and physical harassment and has spent amount for filing the

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instant complaint.

9. As per the copies of estimates of repair, tendered in evidence, by the complainant, he has spent approximately Rs.80,000/-, but bills regarding actual payment, issued by the repairer, have not been produced on record, by him. The Surveyor, deputed by the opposite party, has assessed the loss, after verification of factum of accident and assessment of loss caused to the vehicle, as given in his report Ext.OP-2. In the said report, net loss, has been assessed, in the sum of Rs.58,902.65. At first instance, no evidence has been led by the complainant in rebuttal, as such, report of the Surveyor, has gone uncontroverted, about the quantum of loss suffered by him. In our opinion, Surveyor is the best person, being expert in the line, for assessment of the damage, caused to a vehicle, in a road accident. In this regard reference may be made to 2006(II) CPJ (NC) 193 National Insurance Co.Ltd & Ors versus Aleyamma Verghese & ors. wherein it has been held by the Hon'ble National Commission that report of the Surveyor is an important document, which has to be specifically agreed or rebutted, as such, it cannot be brushed aside. It was further held that court cannot go beyond the loss assessed by the Surveyor.

Therefore, we are of the opinion that complainant, is not entitled, to payment of amount of claim, over and above the report of the loss assessed, by the Surveyor, appointed by the opposite party, especially when, the same does not suffer from any infirmity and not on the basis of amount mentioned in the copies of the estimates tendered in evidence by him.

For the aforesaid reasons, we accept the complaint and direct the opposite party, to pay a sum of Rs.58,902.65, on account of claim, under the insurance policy, with interest at the rate of 9 percent, per

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annum, from the date of filing of the complaint i.e. 21.08.2009, till date of actual payment, with further direction, to pay a sum of Rs.1000/-, as costs of filing of the instant complaint. The compliance of this order be made within a period of two months from the date of receipt of the copy of the order.

12. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record.

CC.No.647 of 2007

BETWEEN:

Nunna Jaganmohan Rao,

S/o Rama Kotaiah,

R/o Kolluru Post & Mandal,

Guntur district. … Complainant

and

1. The Branch Manager,

National Insurance Company Limited,

G.B.C. Road, Ponnur.

2. M/s Heritage Health Services (P) Limited,

Hyderabad R.O: 1007,

Babukhan Estate, Basheerbagh,

Hyderabad-29. …Opposite Parties


This complaint is coming up before us for hearing on 17.11.2009 in the presence of Sri O. Ravikumar, advocate for complainant and of Sri V. Nageswara Rao, Advocate for 1st opposite party, 2nd opposite party remained absent and set exparte, upon perusing the material on record and after hearing both sides, having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri M.V.L. Radhakrishna Murthy, Member::- This complaint is filed U/S 12 of Consumer Protection Act, 1986 by the complainant praying to direct the opposite parties to pay Rs.76,649/- to the complainant with interest @18% p.a., from the date of claim till the date of realization and to pay Rs.25,000/- towards compensation for causing inconvenience and mental agony and Rs.2,000/- towards expenses.

The averments of complaint in brief are as follows: The complainant insured his life with the 1st opposite party since 1997 till today. Accordingly the complainant took life insurance policy for the year 2004-2005 by paying a premium to the 1st opposite party through cheque and OP1 issued a policy. But the above said cheque was dishonoured and the same was informed by 1st opposite party to the complainant. Accordingly, complainant paid premium by way cash and again the 1st opposite party issued a policy for Rs.1,00,000/- for the period from 20-07-04 to 19-07-05. The above said policy covers the pre-existing diseases also. The complainant suffered some heart problem and was operated at Durgabai Deshmukh hospital at Hyderabad in Cardiology Department. On 05-11-05 the complainant admitted in the hospital and was discharged on 09-11-04. Since the complainant was holding the mediclaim insurance policy, he approached the opposite parties for claiming the coverage sum insured under the medical insurance but the 2nd opposite party without proper appreciation of the terms and conditions of the medical insurance policy repudiated the claim of the complainant on 20-06-05 stating that pre-existing disease is not covered under the policy, hence claim not allowed. This is negligence and deficiency of service on the part of opposite parties. Moreover, the repudiation letter contains, “however, you have a right to appeal against above rejection to the insurance company whose decision in this regard will be final and binding”. Accordingly, the complainant appealed the same to the 1st opposite party on 25-10-05 for settlement of claim and the same is pending till today. Non settlement of claim for long time amounts to deficiency of service on the part of opposite parties.

1st opposite party filed its version which is in brief as follows,

The claim of the complainant is clearly barred by limitation. The repudiation was made on 20-06-05, whereas the complaint was filed in the month of October, 2007 after more than 2 years. It is absolutely false to say that the complainant appealed to the 1st opposite party on 25-10-05 and the same is pending till today. The complainant never appealed before this opposite party. The complainant obtained the hospitalization and domiciliary hospitalization policy for himself and his wife, Lakshmi Santha Kumari for Rs.50,000/- each for hospital expenses and Rs.10,000/- for domiciliary expenses, covering from 20-07-04 to 19-07-05. As per terms and conditions of the said policy preexisting disease is not covered. Clause 4.1 of disease by injuries which are pre-existing are excluded. In this case admittedly the previous policy was expired and renewal policy was cancelled as the cheque given towards premium was bounced and a fresh policy was issued covering from 20-07-04 to 19-07-05. The 2nd opposite party is claim settlement agency for OP1. The 2nd opposite party duly processed the claim made by the complainant and came to the conclusion that the complainant was suffering with heart disease even prior to obtaining policy and that the pre-existing disease is not covered in terms of the policy. Accordingly, the same was intimated to the complainant. It is false to say that the policy issued to the complainant covers the pre-existing diseases also. The repudiation made by the 2nd opposite party is absolutely correct. It is false to say that complainant made an appeal on 25-10-05 and the same is pending. Hence, the complaint may be dismissed.

OP2 remained exparte. Complainant filed affidavit in support of his version reiterating the same. OP1 filed affidavit in support of his version reiterating the same.

On behalf of complainant Exs.A-1 to A-6 are marked. Ex.A-1 is the policy b.No.550507/48/04/8500157 for the period from 20-06-04 to 19-06-05. Ex.A-2 is the policy b.No.550507/48/04/8500262 for the period from 20-07-04 to 19-07-05. Ex.A-3 is the copy of confirmation letter dated 21-04-05 addressed by OP1 to OP2. Ex.A-4 is the copy of letter dated 03-06-05 addressed by OP1 to OP2, wherein it was informed to OP2 that earlier policy was cancelled due to cheque dishonour and the complainant paid premium by way of cash, hence issued policy for a period of one year from 20-07-04 to 19-07-05 without cumulative effect and it is also mentioned in it to consider the coverage for pre-existing also. Since, the client is with them since 1997-98. Ex.A-5 copy of repudiation letter dated 20-06-05 addressed by OP2 to the complainant. Ex.A-6 is the copy of letter dated 25-10-05 complainant appealing to the 1st opposite party to settle the claim.

On behalf of opposite party Exs.B-1 to B-3 are marked. Ex.B-1 is the policy issued in favour of complainant covering for the period from 26-07-04 to 19-07-05. Ex.B-2 is the Cardiac Catherisation report dated 06-11-04. Ex.B-3 is the discharge card of the complainant.

Now the points for consideration are that,

1. Whether there is any deficiency of service on the part of 1st opposite party in settling the claim?

2. To what relief?

Point No.1:- It is the case of the complainant that he has insured his life with 1st opposite party and a policy was issued by Opposite party in his name covering the period from 20-07-04 to 19-07-05 under Ex.A-2 and that he joined the hospital due to some heart problem on 05-11-04 in Durgabai Deshmukh Hospital at Hyderabad and he was operated and treated and discharged on 09-11-04 and he claimed medical expenses covered under the policy and that OP2 claims settlement agency of OP1 repudiated the claim on the ground of pre-existing disease and informed the same under Ex.A-5 and that he made appeal to OP1 under Ex.A-6 dated 25-10-05.

It is the case of the opposite party that the complainant insured for Rs.50,000/- and he was issued policy and that he was treated for the pre-existing disease that repudiation made by OP2 is correct and that the complainant did not appeal to OP1 and the appeal is not pending. It is further case of the opposite party that the complaint is time barred and is not maintainable.

As seen from Ex.A-2 policy the complainant insured his life for a sum of Rs.50,000/- and the policy covers from 20-07-04 to 19-07-05. As seen from Ex.A-3 letter addressed by OP1 to OP2 the complainant has been taking policy for his life from 1997-98 from OP1 continuously. As seen from Ex.A-4 letter dated 03-06-05 addressed by OP1 to the OP2, the complainant has been insuring his life since 1997-98 and on payment of cash, policy was issued for one year from 20-07-04 to 19-07-05 without cumulative effect and OP1 requested OP2 in Ex.A-4 letter to consider the coverage for pre-existing also, since the complainant is with the company since 1997-98. This Ex.A-4 clearly shows that OP1 considered the policy of the complainant even for pre-existing disease also and requested OP2 who is claim settlement agency of the OP1 to consider the pre-existing also regarding the complainant since he is client for OP1 from 1997-98. The OP2 settling agency of OP1 without considering the contents of the letter under Ex.A-4 repudiated the claim of the complainant under Ex.A-5. Moreover, as seen from Ex.A-6 letter of the complainant the complainant was suddenly attacked with heart pain and he joined in Durgabai Deshmukh hospital for treatment and that he has no pre-existing disease. Even though the OP2 repudiated the claim of the complainant on the ground of pre-existing disease not covered under the policy, it was not established that the complainant joined in the hospital with the pre-existing disease, no evidence is placed by the OP1 to that effect. Ex.B-2 is the cardiac catherisation report issued by Durgabhai Deshmukh hospital no where mentioned in it that the disease of the complainant was pre-existing one. Therefore, considering the contents of Ex.A-4 and B-2 the complainant is entitled for the mediclaim policy amount for the expenses incurred by him in Durgabhai Deshmukh hospital, as he was treated during the subsistence of the policy. Further, it is the case of the opposite party that the complaint is time barred. But as seen from Ex.A-6 letter dated 25-10-05 of the complainant it was acknowledged by the OP1 with the date seal and stamp of OP1. Therefore, it clearly shows that the complainant made an appeal to OP1 under Ex.A-6 on 25-10-05 and it is pending with the OP1. Hence, complaint is within time and it is maintainable.

Even though the complainant had made an appeal to OP1 under Ex.A-6 on 20-05-05, the claim was not settled till the date of filing of this complaint. Therefore, it clearly shows that there is deficiency of service on the part of OP1.

In view of the foregoing discussions, we find that there is deficiency of service on the part of 1st opposite party in settling the claim of the complainant and the complainant is entitled for the sum assured towards medical expenses incurred by him. The complainant claimed an amount of Rs.76,649/- towards mediclaim but he has insured his life under Ex.A-2 for Rs.50,000/- only. Therefore, the complainant is entitled towards mediclaim for a sum of Rs.50,000/- only. Accordingly, this point is answered in favour of complainant.

In the result, the complaint is allowed in part in terms as indicated below:

1. The opposite party 1 is directed to pay Rs.50,000/- with interest @9% p.a., from 20-06-05 (the date of repudiation of the claim by OP2) till the date of realization towards insured amount.

2. The opposite party 1 is further directed to pay Rs.2000/- towards compensation and Rs.1000/- towards legal expenses to complainant.

3. The amounts ordered above shall be paid within a period six weeks from the date of receipt of copy of the order, failing which the amount ordered in Item No.2 shall carry interest @ 9% p.a. till the date of realization.



Dictated to steno typist, transcribed by her, corrected by me and pronounced in the open Forum dated this the 26th day of November, 2009.

C.C.No.201 of 2006

BETWEEN:
1. Palagni Lokeswara Rao (Died),

S/o. Venkateswara Rao,

R/o. Old Guntur, Guntur.

2. Palagni Manga Devi,

W/o. late Lokeswara Rao,

R/o. Old Guntur, Guntur.

3. Palagni Venkata Satish,

S/o. late Lokeswara Rao,

R/o. Old Guntur, Guntur.

4. Palagni Rama Krishna,

S/o. late Lokeswara Rao,

R/o. Old Guntur, Guntur. … Complainants
AND

The Branch Manager,

National Insurance Company Ltd.,

Branch No.I,

P.B.No.240, D.No.6-4-35,

Arundelpet, Guntur. … Opposite party
This complaint coming up before us for final hearing on 19-11-09 in the presence of Sri J.Narasimha Rao, Advocate for complainants and of Sri N.Rama Krishna, Advocate for opposite party, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri T.ANJANEYULU, PRESIDENT:

This complaint is filed under section 12 of Consumer Protection Act, 1986 claiming sum of Rs.2,00,000/- with interest thereon at 12% p.a. being the value of property, damages of Rs.50,000/- and legal expenses from opposite party.

The brief facts of case are that

The complainant took policy cover note No.18338 under householders insurance from opposite party company on 27-04-05 and same shall be in force till 26-04-06. The complainant paid Rs.2,783/- towards premium. That on 23-05-05 at 6.40 pm, the 1st complainant along with his wife started from their house at old Guntur in order to catch bus at RTC Bus stand to go his 2nd daughter’s house at Vijayawada and at that time the 1st complainant and his wife were carrying ornaments weighting about 326.31 gms. and cash of Rs.1500/- which were kept in cash bag and they were also carrying a sticks bag for the purpose of putting cloths and the said cash bag was kept in that sticks bag. At Guntur RTC bus stand, the 1st complainant and his wife boarded a bus to go to Vijayawada and while the bus reached Manipuram Railway gate, Guntur the 1st complainant found the cash bag containing gold ornaments and money was missing and after due search, the 1st complainant came to know that it was committed theft by unknown offenders. They have searched for the bag at various places in between the house to RTC bus stand, but the said bag could not be traced. Thereupon the 1st complainant has given a complaint in old Guntur crime police station on 24-05-05 in respect of theft. Thereupon the 1st complainant sent an intimation letter on 14-06-05. The opposite party directed the complainant vide its letter dt.21-06-05 to send claim forms along with necessary documents. Accordingly, they were sent. They have also recorded statement of 1st complainant and his wife. The police ultimately sent a final report stating that the case is undetectable. This fact was also informed to insurance company by letter dt.17-11-05. Thus the complainant sustained loss more than Rs.2,00,000/-, the value of gold ornaments and the cash. Despite several requests made by the complainant, the opposite party has not settled the claim so far and dodging the matter. It caused severe mental agony. Therefore, they are claiming compensation of Rs.50,000/-. Finally complainant got issued legal notice dt.27-01-06. But no action has been taken. Hence, the complaint.

The version of opposite party is as follows:

They have denied all the allegations made in the complaint. Further it is admitted that it has issued policy which is in force from 27-04-05 to 26-04-06. The complainant has taken the policy for the first time. Surprisingly within one month of taking policy, the insured/complainant given a complaint to Old Guntur Police on 24-05-06 about theft of jewelry. But the same was not informed to them immediately. It has been informed after lapse of one month. All these circumstances lead to an inference that the complainant has insured the jewelry only for the purpose of getting wrongful gain with a dishonest and malafide intention under the guise of insurance policy. It is also made clear that no personal inspection of jewelry was made before acceptance of risk and the same has been done in good faith. On receipt of intimation from complainant, the opposite party appointed one Mr.Ch.Srinivas, Surveyor to conduct survey and investigation. The surveyor after thorough investigation came to conclusion that that claim is not payable and recommended for repudiation of the same. The insured did not produce any evidence to prove that they boarded the bus to go to Vijayawada and no particulars are mentioned in FIR about the travel. The complaint was not lodged before police on the same day but it was given on next day. The complainant and his wife did not take sufficient care in keeping the valuables under safe custody and did not make search for the same either in bus or at bus stand and no complaint is lodged in out post police station situated in bus stand. These circumstances show that no theft has taken place. Therefore, the insurer is not liable for payment of any amount. It is prayed to dismiss the complaint with costs.

Both parties have filed their respective affidavits. On behalf of complainant Ex.A1 to A6 are marked. On behalf of opposite party Ex.B1 to B6 are marked.

Now the points for determination are that

1. Whether there is any deficiency of service on the part of opposite party?
2. Whether the complainants herein are entitled for the amounts claimed?

POINT No.1

On examination of facts and circumstances of case and the material available on record, it is observed that there is no correlation and consistency in the facts alleged and alleged events that took place in loss of gold ornaments and cash of Rs.1500/- from cash bag during transit of complainant and his wife from Guntur to Vijayawada. The complainant and his wife started from their house on 23-05-05 at about 6.45 pm and reached Guntur RTC bus stand, boarded the bus at 7.15 pm to go to their daughter’s house at Vijayawada while carrying gold ornaments and cash of Rs.1500/- in a cash bag which was kept in wooden stick bag containing some cloths in it. By the time the bus reached Manipuram Railway Gate they found cash bag from the wooden stick bag is missing. They came to conclusion that it was committed theft. They lodged a complaint in crime police station of Old Guntur Police Station but not on the same day but on the next day as seen from contents of FIR vide Ex.A5. Though they mentioned the particulars of gold failed to mention its worth in terms of its value. The fact was not immediately informed to opposite party, but on 14-06-05 which is almost after gap of 20 days. Immediately, the opposite party responded vide their letter dt.21-06-05 and required them to send claim form along with documents and that apart, the opposite party also appointed their staff to make enquiry in the matter and send report. The investigation report vide Ex.B2 dealt with all aspects of incident and family background of complainant. They have enquired insured and as well as his wife. They have also enquired the neighborhood. The investigator came to know that there was queue at the counter of ticket issuing point in RTC bus stand which crowded with people. The wife of insured kept the sticks bag on ground without holding the same while standing in queue. The complainant alleged to have gone to toilets, which fact is not revealed in FIR. They have shown value of gold about two and half lakhs along with some cash. Some of the items of gold were not covered by the policy. It is a fresh policy obtained by complainant who is doing part time job in a cotton company. They have not produced bus tickets when demanded. There is also remark that they have not cooperated in the investigation though they called them on phone number of occasions.

The police also filed final report stating that the case is undetectable. The police reported to have checked MO criminals and suspected strangers but did not get any clue about the same. They have shown the gold and cash worth Rs.10,000/- in their report. Thereupon the complainants also alleged they have informed about the fact of final report of police by their letter dt.17-11-05. But this letter is not on record. Subsequently, they got issued a legal notice dt.27-01-06 vide Ex.A2 demanding payment of Rs.2,00,000/- towards loss of property along with interest thereon and also for damages. The opposite party gave reply notice dt.16-02-06 vide Ex.A4 while denying all the allegations mentioned in notice and further informed that they got appointed investigator and report is awaited. It is further informed that they are not entitled for any damages and interest amount. It is also denied that they have not approached personally the office of insurance company at any time.

During pendency of complaint, the insured Lokeswara Rao died and his legal heirs have come on record as complainants 2 to 4 and they pursued the matter.

As seen from version filed by opposite party, it is alleged that the insured violated the terms and conditions of policy Nos.3, 5, and 7, which reads as follows:

Condition No.3 : The insured shall take all reasonable steps to safeguard the property insured against any loss or damage. The insured shall exercise reasonable care that only competent employees are employed and shall take all reasonable precautions to prevent all accidents and shall comply with all statutory or other regulations.



Condition No.5 : The insured shall upon the occurrence of any event giving rise or likely to give rise to a claim under this policy.

(a) In the event of theft, lodge forthwith a complaint with the police and take all practicable steps to apprehend the guilty persons and to recover the property lost.

(b) Loss or damage together with such explanations and evidence to substantiate the claims as the company may reasonable require

Condition No.7 : If any claim this policy shall be in any respect fraudulent or if any fraudulent means or device are used by the insured or any one acting on the insured’s behalf to obtain any benefit under this policy, all benefits under the policy shall beforfeited.



Basing on the aforesaid conditions it is argued that the insured has not taken reasonable care and interest to safeguard his property while in transit and as per the investigation a doubt has arisen as to whether really theft of such property took place? But as seen from the record there is no repudiation letter. The opposite party in its version lastly mentioned in para 25 that “without prejudice to the above contentions, if is further submitted that this opposite party cannot be made liable for more than Rs.10,000/- only which is the amount certified by the police authorities after thorough investigation.”

In view of the aforesaid facts and circumstances and as opposite party came forward to make payment under the policy not more than Rs.10,000/- which is the value mentioned in final report of police in respect of stolen property, we feel it appropriate to award the same sum to complainants. Further we also feel it appropriate to award Rs.1000/- towards compensation for mental agony, pain and suffering and Rs.500/- towards legal expenses.

In the result, the complaint is allowed in part in terms as indicated below:

1. The opposite party is hereby directed to make payment of R.10,000/- as per their version to complainants forthwith.

2. The opposite party further directed to pay Rs.1000/- as compensation for mental agony, pain and suffering and Rs.500/- towards legal expenses.

3. The aforesaid amounts shall be paid within a period of six weeks from the date of receipt of copy of this order, failing which they shall carry interest @ 9% p.a. till the date of realization.

Dictated to Junior Steno, transcribed by her, corrected by us and pronounced in the open Forum, this the 25th day of November, 2009.

C.C.No.82 of 2008

BETWEEN:

Vootla Peda Munaiah,

S/o. Chenchaiah,

Police Constable No.2084 at

Kothapet Police Station,

Guntur. … Complainant

AND

The National Insurance Company Ltd.,

Rep. by its Divisional Manager,

Opp. to Arundelpet P.S.,

Arundelpet Main Road,

Guntur. … Opposite party

This complaint coming up before us for final hearing on 10-11-09 in the presence of Sri P.Raja Rao, Advocate for complainant and of Sri N.Rama Krishna, Advocate for opposite party, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

This complaint is filed under section 12 of Consumer Protection Act, 1986 praying to direct the opposite parties to pay Rs.41,080/- towards mediclaim under the policy, to award Rs.20,000/- towards damages for mental agony and for costs.

The averments of complaint in brief are as follows:

The complainant is the customer of Vijaya Bank, Arundelpet Branch, Guntur under account No.20879. The complainant obtained a personal loan of Rs.1,90,000/-. At that time, the bank informed the complainant that it is mandatory to go for mediclaim and offered mediclaim policy and necessary premium was paid and medicalim policy was issued vide policy No.550500/48/06/8500000666 dt.31-01-07 valid for a period of one year with effect from 31-01-07 to 30-01-08. During the subsistence of policy, complainant suffered hepatitis with fever Nephropathi Maleria, viral and hyperkelema since 18-10-07. The complainant joined in the St.Joseph General Hospital, Guntur and underwent treatment for the above said ailments till 05-11-07. The complainant was spent Rs.41,080-04 ps. The complainant submitted the claim with bills for Rs.41,080/- on 12-11-07 for refund of medical expenses. Though the complainant spent Rs.20,000/- for incidental expenses, he could not claim the said amount as there are no bills. But the opposite party repudiated the claim stating that the complainant suffered diabetes and the same is not covered by this policy, as it is preexisting condition. The complainant joined in the hospital for diseased of hepatitis, fever, malaria, hypertension which are independent diseases with that of diabetes. The opposite party repudiated the claim with an intention to cause loss to complainant, which amounts to deficiency of service. The complainant filed appeal to opposite party and the same was rejected. Hence, the complaint.

The opposite party filed its version, which is in brief is as follows:

The complainant is guilty of suppressiovari and suggestiofalsi. The contract of insurance are contracts uberrimae fides and every fact of material must be disclosed. The opposite party has issued V Agrogya Bima Mediclaim policy to complainant. The sum assured in Rs.50,000/- and the period of policy is from 31-01-07 to 30-01-08. Clause 4 of conditions of policy specifies the standard exclusion as per V Agrogya Bima Mediclaim Policy. The acts under the clause 4 are the exclusions under the mediclaim policy. As per condition 4(1) of V Arogya Bima Mediclaim policy, pre-existing diseases are not payable under the policy. “All diseases/injuries which are pre-existing when the cover incepts for the first time” are excluded from the scope of cover. The complainant intentionally concealed his disease with malafide intention with a view to make wrongful gain. The complainant failed to furnish the details of his disease and suppressed material facts and obtained mediclaim policy. The third party administrators of opposite party immediately after receiving the claim form, discharge summary, prescriptions, receipts and bills from the complainant sent the same to their medical team for opinion and on perusing the record of complainant, the medical team of Third Party Administrators (TPA) opined that the claim does not fall under the purview of policy as the present hospitalization is for the management of an ailment which is related to a pre-existing condition, condition 4(1) of policy. Due to which the claim of complainant was repudiated ad the same was informed to complainant by Third Party Administrators. This opposite party rightly repudiated the claim on the ground that the disease must be existing prior to taking of policy. There is no deficiency of service on the part of this opposite party. Hence the complaint may be dismissed with costs.

The complainant filed affidavit in support his complaint reiterating the facts mentioned therein. The opposite party also filed affidavit in support of its version reiterating the facts mentioned therein. On behalf of complainant Ex.A1 to A5 are marked. On behalf of opposite party Ex.B1 to B6 are marked.

Ex.A1 is the policy issued to complainant by opposite party, Ex.A2 is the discharge summary issued by the St.Joseph General Hospital, Guntur, Ex.A3 is the medical bills, Ex.A4 is the claim repudiation statement by the opposite party, Ex.A5 is the claim form.

Ex.B1 is the copy of policy, Ex.B2 is the policy conditions, Ex.B3 is the medical processing sheet, Ex.B4 is the certificate issued by Dr.M.Radha Krishna Murthy, Ex.B5 is the observations report, Ex.B6 is the repudiation letter.

Now the points for consideration are that

1. Whether there is any deficiency of service on the part of opposite party?
2. To what relief the complainant is entitled?

POINT No.2

The sum and substance of the case is that the complainant being an account holder of Vijaya Bank. He was offered with a mediclaim policy and that a mediclaim policy commencing from 31-01-07 to 30-01-08. During the subsistence of policy, complainant suffered hepatitis with fever Nephropathi Maleria, viral and hyperkelema since 18-10-07. He joined in St.Joseph General Hospital, Guntur and underwent treatment for the above said ailments till 05-11-07 and spent Rs.41,080-04 ps. as per Ex.A5 claim form and that the opposite party repudiated the claim under Ex.B6 as per condition No.4(1) of mediclaim policy stating that the complainant is a diabetic patient for the last one year and the diagnosis of disease is Malaria with hepatitis and acute renal failure. Since diabetes is related to renal failure, the claim is repudiated.

As seen from Ex.B4, the certificate issued by the doctor who treated the complainant shows that the complainant was admitted in the hospital with fever and Jaundice of 1 week duration. Patient is known diabetic for the last one year. His diagnosis is complicated malaria with hepatitis and acute renal failure. There is no past history of renal failure, so it is acute renal failure.

As seen from condition 4(1) of policy, which reads as follows:

All diseases/injuries, which are pre-existing when the cover incepts for the first time. This exclusion will be deleted after three consecutive continuous claims free policy years in respect of all diseases other than cancer, organ transplant, psychiatric disorders, Thalessemia, Renal problem (which diseases will not be covered if pre-existing) provided, there was no hospitalization for pre-existing ailment during such three years of insurance.

As seen Ex.B4, the complainant was admitted with fever and jaundice of 1 week duration, though the complainant is said to be known diabetic patient for the last one year, he has not joined in the hospital for treatment of diabetes. The disease of complainant was diagnosed as complicated malaria with hepatitis and acute renal failure. In condition 4(1) of policy renal problem was excluded. But that was not preexisted to complainant since the doctor stated in his certificate that there is no past history of renal failure. The diabetes is not mentioned in condition 4(1) of policy even though the complainant is known diabetic for the last one year. There is no past history for renal failure of complainant. Hence, it cannot be said that the complainant has admitted in the hospital for preexisting disease. In Ex.B6 repudiation letter of opposite party it is stated that diabetes is related to renal failure. But the same was not established by the opposite party by placing any evidence to that effect. As the complainant was treated for malaria with hepatitis and acute renal failure and as there is no past history of renal failure it cannot be said that the complainant was treated for preexisting disease and that the same was not disclosed by the complaint at the time of policy. Therefore, the complainant is entitled for reimbursement of his claim as claimed by him under Ex.A3.

In support of his contentions, complainant relied on a decision reported in 2008 (1) CPR 173, Omprakash Madanlal Modi Vs. Oriental Insurance Company Ltd., in which the Maharashtra State Commission held that for rejecting claim under medi-claim policy on ground that insured suppressed material facts regarding pre-existing disease insurance company is under obligation to place on record concrete and conclusive evidence to show that there was fraudulent suppression of pre-exiting disease.

Here in this case as already mentioned above, the disease of complainant was diagnosed as complicated malaria with hepatitis and that there is no past history of renal failure. The complainant herein was not treated for pre-existing disease. Even though it was stated by opposite party that the disease for which the complainant was treated is related to diabetes, it was not established. Hence, it cannot be said that the complainant suppressed pre-existing disease.

In support of its case, the opposite party relied on a decision reported in 1995 (3) CPR 600, Col.N.Subhjan Vs. The New India Assurance Company Ltd., wherein the National Commission held that claim in respect of treatment for removal of stones from gall bladder/ bile duct. Claim repudiated on the ground that insured suppressed the factum of existence of stones in report issued by Nursing Home disclosed the presence of multiple stones in gall bladder prior to treatment. Non-mentioning of this fact in proposal form amounted to suppression of material fact which violated policy. Repudiation was bonafide & there is no deficiency of service.

The opposite party also relied on another decision reported in 2009 (1) CPR 187 (NC), LIC of India vs. Smt.M.Bhavani, wherein the National Commission held that if a policy is taken or revival by suppressing pre-existing material fact like pre-existing diseases then the insurance company is not liable to pay amount insured under the policy.

The decisions relied on by the opposite party are not relevant to the facts of present case. Since, the complainant was not treated for the pre-existing disease as contended by opposite party.

Therefore, in view of fore going discussion, we are of the view that the complainant is entitled for the amount claimed i.e., Rs.41,080/- under the policy for medical expenses incurred by him.

POINT No.2

Even though the complainant was not treated for preexisting disease, the opposite party repudiated the claim. Hence, the complainant suffered mental agony, pain and suffering. Therefore, the complainant is also entitled for compensation.

In the result, the complaint is allowed in part in terms and indicated below:

1. The opposite party is directed to pay an amount of Rs.41,080/- as claimed by the complainant under Ex.A3 with interest @ 9% p.a. from the date of repudiation i.e., 29-02-08 till the date of realization.
2. The opposite party is further directed to pay an amount of Rs.2000/- to complainant towards compensation for mental agony suffered him and also Rs.1000/- towards cost of litigation.
3. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of copy of this order, failing which the amounts ordered in item 2 shall carry interest @ 9% p.a. till the date of realization.


Dictated to Junior Steno, transcribed by her, corrected by us and pronounced in the open Forum, this the 24th day of November, 2009.

C.C.No.682 of 2007

BETWEEN:

Lingala Yedukkondalu,

S/o. Purna Chandra Rao,

R/o. Indira Nagar, Mangalagiri,

Guntur Distirct. … Complainant

AND

1. M/s.Royal Gas Company,

Rep. by its Proprietor,

N.Nageswara Rao,

Station Road, Mangalagiri,

Guntur District.

2. National Insurance Company,

Rep. by its Manager,

3rd floor, LVR & Son’s Club,

Koritepadu, Guntur. … Opposite parties

This complaint coming up before us for final hearing on 09-11-09 in the presence of Sri M.D. Prasad, Advocate for complainant and of Sri J.Vijaya Kumar, Advocate for 1st opposite party and Sri S.A.Khadar, Advocate for 2nd opposite party, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri T.ANJANEYULU, PRESIDENT:

This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant for a sum of Rs.1,59,500/- towards compensation for the damage caused to property, Rs.5000/- towards mental agony, pain and suffering and legal expenses.

The brief facts of the case are that:

The complainant is a registered consumer of 1st opposite party having domestic Gas connection bearing customer No.810837 and S.V.No.2452258. The complainant was supplied a gas cylinder at his residence on 26-07-07 by 1st opposite party. On the same day at 7.00 pm, when the wife of complainant wanted to cook attempted to connect the new cylinder by removing plastic seal and security cap, suddenly gas inside the cylinder gushed out and the gas that escaped from cylinder came into contact with hot surface of stove and caught fire the entire thatched house of complainant destroying several articles inside the house resulting in heavy damage to property. All the inmates of house went out due to fear and informed the same to fire service officer. Immediately the neighbors and fire service people attended the incident and extinguished the fire. The incident was immediately informed to 1st opposite party. Some people from the office of 1st opposite party visited the house of complainant and noted the incident and damage caused due to defective cylinder. The complainant has also reported the incident to police at Mangalagiri Town PS and the same was registered as crime No.135/2007. In this incident, the house of complainant was totally burnt and works inside the house were completely burnt. The particulars of articles that were destroyed in the incident are furnished hereunder:

1. 3 ½ saverign of gold chain Rs. 25,000/-

2. Two gold rings Rs.14,000/-

3. Cots, chairs and table Rs.10,000/-

4. Household articles like vessels Rs.10,000/-

5. Table fan & Ceiling fan Rs.2,500/-

6. Cloths Rs.20,000/-

8. LG TV Rs.6000/-

9. Value of house with all appurtances Rs.70,000/-

Total Rs.1,59,500/-

It is further submitted that the complainant approached 1st opposite party and made demand for payment of compensation for damage caused to his property due to defective cylinder supplied by them. The complainant has also come to know that the 2nd opposite party is the insurer of 1st opposite party and as such the liability of 1st opposite party is covered by an insurance policy. The complainant has submitted fire certificate as well as copy of FIR to 1st opposite party for settling the claim. But so far, the complainant was neither informed anything nor settled his claim by opposite parties. Both the opposite parties are jointly and severally liable for payment of compensation. Hence, the complaint

The 1st opposite party filed its version denying all the allegations made in the complaint. It is submitted that if cylinder caught fire, cylinder would have blast automatically. Soon after receiving information the staff members of 1st opposite party visited the house of complainant and observed thoroughly the place of fire accident. Due to kerosene stove flame came into contract with thatched house which was very low level. The cause of accident is not by cylinder but due to negligent manner of usage of kerosene stove of complainant. Initially for the purpose of obtaining financial help from government, the complainant reported the matter to police and also to local fire station. Subsequently, on receiving wrong advice, this complaint is filed. The allegations made are fabricated. There is no damage certificate from revenue department.

It is further submitted that 1st opposite party paid 3rd party insurance premium to all the customers to 2nd opposite party and insurance policy is in force as on the date of accident. Therefore, it is prayed to dismiss the complaint with costs.

The 2nd opposite party also filed its version denying all the allegations made in the complaint. It is submitted that the complainant is claiming compensation for damages caused to his property as such this Forum has no jurisdiction to entertain this complaint. The complaint has to be filed before Hon’ble District Judge, Guntur towards loss of damage to his property as such the complaint is liable to be dismissed. The complainant is the registered consumer of 1st opposite party. The complainant is not a consumer of insurance company. Hence, he does not come under the purview of Consumer Protection Act. There is no privity of contract in between the complainant and insurance company. It is no way concerned to pay compensation with regard to fire accident which occurred on 26-07-07 and there is no documentary proof to show that the scheduled articles mentioned in complaint belong to complainant and their value shown is fabricated for the purpose of this complaint. It is further submitted that there is no intimation regarding the accident occurred on 26-07-07 to this opposite party and even after the accident the complainant never informed or approached this opposite party for compensation and this opposite party has lost opportunity to inspect the damaged property and to assess loss. There is no deficiency of service on the part of this opposite party, as such the complaint is liable to be dismissed. There is negligence on the part of complainant’s wife for causing this accident as mentioned in complaint by removing plastic seal and security cap. If gas is leaking from cylinder it will be closed immediately and inform to 1st opposite party about leakage of gas. For the aforesaid reasons the complaint is dismissed with costs.

Both sides have filed their respective affidavits. On bheaf of complainant Ex.A1 to A4 are marked. On behalf of 2nd opposite party Ex.B1 policy along with schedule is marked. No documents are marked for 1st opposite party.

Now the points for determination are that

1. Whether there is any deficiency of service on the part of 1st opposite party?
2. Whether the complaint is entitled for the amounts as sought for from opposite parties?
3. To what relief?

POINT No.1

As seen from the above referred pleadings, the complainant put forth that a fire accident occurred in his house on 26-07-07 due to leakage of gas from cylinder supply by M/s.Royal Gas Company, Mangalagiri and due to it thatched house of complainant and articles were got into ashes as such he sustained damages.

It is the case of 1st opposite party that on spot inspection they come to know that due to kerosene stove, the said accident occurred but not due to leakage of gas from cylinder supplied by them. Whereas the 2nd opposite party put forth in its defense that due to negligence of complainant itself, the alleged incident has occurred. Had they been careful enough in closing cap, the fire accident would not have occurred. The complainant relied upon the police report (Ex.A2), in which fire accident was reported. The facts mentioned therein are similar to that of complaint filed before this Forum. The fire certificate issued by fire services, Mangalagiri vide Ex.A3 reads that the thatched house, house hold articles, ration card, land documents, inter certificates, gas regulator under SC No.10737 were involved and damaged in the fire accident occurred in the house of Edukondalu of 4th ward, Indira Nagar, Mangalagiri and they extinguished fire completely vide F.C.No.85/07, dt.26-07-07. There is also certificate from Tahsildar, Mangalagiri Mandal, Guntur District vide Ex.A4 stating that a sum of Rs.2000/- was given financial assistance as house bearing No.5-143 (thatched house) belonging to complainant gutted in fire accident that took place on 26-07-07 from Ex.A1, cash receipt and card maintained by 1st opposite party shows that the refilled gas cylinder was delivered on 26-07-07 to the complainant.

From the above material on record, it is evident that fire has occurred in the house of complainant due to leakage of gas from the gas cylinder, in which the thatched house and other household articles were burnt. The affidavit given by complainant also explains the same fact. It is not known as to how the personnel of 1st opposite party gathered information that due to user of kerosene stove and its flame, the thatched house caught fire. There is no supporting material for the same. It appears that in order to absolve from its liability, the 1st opposite party invented the said story. It is the duty cast upon the 1st opposite party to ensure to its consumers supply of refilled gas cylinder duly packed and sealed and there is no defect of any sort. This is a condition before supply of refilled gas cylinder and safety measures which are strictly adhered as imposed by all the Petroleum Companies, Government of India. Thus there is deficiency of service on the part of 1st opposite party in supplying defective gas cylinder. The point is answered accordingly.

POINTS 2 & 3

The complainant mentioned that apart from thatched house, the article mentioned in complaint were damaged in that fire accident and shown value of the same to an extent of Rs.1,59,500/-. These articles include gold ornaments also and they are not shown in the certificate issued by fire services. It shows thatched house, household articles, ration card, land documents, inter certificate, gas regulator etc. The gold ornaments are not shown in this certificate. Therefore a sum of Rs.39,000/- shown as value of gold articles to be deducted out of the amounts claimed. Further the complainant did not get it assessed independently, the worth of damaged articles except of his own valuation. Neither the police nor fire service people have mentioned value of property that was damaged. The government extended financial assistance of Rs.2,000/-. These factors got to be born in mind while awarding compensation to the complainant.

The 1st opposite party claims that it got insured the consumers interest apart from its place of business, stock in trade with the 2nd opposite party i.e., insurance company. As such it is not liable except the insurance company.

Where as the insurance company claims that there is no contractual obligation in between the complainant and itself and that the complaint cannot be entertained against it. Further it is put forth that the insurance company is liable to the damages that occurred at the place of business, godown of 1st opposite party or at the most during transit of cylinders. But not covers the risk at consumer residence. The learned counsel for 2nd opposite party rely upon terms and conditions of policy vide Ex.B1 under caption of public liability vide section 10, which reads as follows:

“The company will indemnify the insured (or in the event of the death of the insured his legal representative) against all sums which the insured shall become legally liable to pay in the event of

(a) ……………………..

(b) accidental damage to property (not being property of or belonging to or in the custody or under the control of the insured or any person in the services of the insured or upon which the insured or nay such person is or has been working if that damage results directly from such work) happening during the period of insurance specified, in the schedule in connection with the Trade/business as described in the schedule.”

Further he points out that the

Risk covered for the building (1) Thullur (2) Nambur, Stocks (Mangalagiri), Stoves, etc., Cylinders. Thullur and Nambur money in transit, sign board.

Location : (1) Station Road, Mangalagiri (2) Thullur D.No.8-23A, (3) Namburu D.No.16-115/1, Jandachettuveedh, Sec.1.B=1.80%0, S=3.80%0, E.Q=10%0, T.C.=30%0, SEC.11.B&H.1.50%0, SEC.111=5%0, SEC.IV=2.55%0, V111=10.05%0, P.L.0.50

Basing on the above referred factors the learned counsel for insurance company contends that no liability arise if damage caused to property of consumer due to leakage of gas from cylinder and consequently coming fire out it.

On careful reading of section 10 of public liability it would clearly shows that the insurance company is equally liable to the damaged property of consumers also as per the risk covered under the policy.

When the risk is supposed to cover during transit of cylinder to any 3rd party, there is no meaning in excluding the consumer, where such incident happened. There is no specific exclusion clause about the consumers in terms and conditions of policy.

In 2008 CTJ 295 (CP) (SCDRC), Manoranjan Majhi and another Vs. Hindustan Petroleum and Company Ltd. & others, in which Orissa State Commission held Petroleum Company and its dealers liable wherever such incidents happen. It is further observed that both the supplier and local dealer had a common refrain that the cylinders were filled with gas by a mechanical process, checked thoroughly and sealed properly before being dispatched to dealers.

2008 CTJ (CP) 1083 (NCDRC) in a case between Indian Oil Corporation Ltd., Bhopal Vs. Rakesh Kumar Prajapati and Others, in which it is held that Indian Oil Corporation and their local dealer are jointly and severally liable to compensate the complainant. The insurance company was not held liable by the District Forum as the dealer had coverage of policy for 4500 consumers only, whereas the complainant registration number was 8867. As such the insurance company held not liable by the District Forum. Therefore, the insurance company did not file appeal before the National Commission.

In a case reported in I (2008) CPJ 444 (NC), New India Assurance Company Ltd. Vs. Kaluraj Jayasri Vyas & Ors., it is held that if insurance cover taken by dealer, insurance company would also be liable.

Therefore, in view of aforesaid decisions, the insurance company (2nd opposite party) can not absolve from its liability since it has coverage to all registered consumers with the 1st opposite party. It has to indemnify the dealer. Therefore, the claim is also maintainable against it.

In absence of specific document and assessment of loss and having considered the damage of property i.e., thatched house and other household articles and further having regard to the fact that financial assistance received from Government to an extent of Rs.2000/- , we feel it appropriate that fixation of compensation to an extent of Rs.12,000/- would meet the ends of justice. Accordingly, compensation of Rs.12,000/- apart from legal expenses of Rs.500/- is hereby awarded in favour of complainant. Rest of claim is dismissed.

In the result, the complaint is allowed in part in terms as indicated below:

1. The opposite parties herein are hereby directed to pay a sum of Rs.12,000/- being the compensation amount towards damage of property suffered by complainant. The liability of both parties is joint and several.

2. We further direct the opposite parties to pay sum of Rs.500/- towards legal expenses.

3. The aforesaid amounts shall be paid within a period of six weeks from the date of receipt of copy of this order, failing which they shall carry interest @ 9% p.a. till the date of realization.



Dictated to Junior Steno, transcribed by her, corrected by us and pronounced in the open Forum, this the 10th day of November, 2009.

consumer case(CC) No. CC/08/140
K.Abdulla Kunhi
...........Appellant(s)
Vs.
The Manager
...........Respondent(s)
BEFORE:
1. K.T.Sidhiq
2. P.P.Shymaladevi
3. P.Ramadevi

Complainant(s)/Appellant(s):
1. K.Abdulla Kunhi

OppositeParty/Respondent(s):
1. The Manager


OppositeParty/Respondent(s):
1. Adv.N.VijayaKumar

OppositeParty/Respondent(s):

ORDER

Date of filing :22-08-2008. Date of order: 05-11-2009

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

CC. No. 140/08

Dated this, the 5th day of November 2009.

PRESENT

SRI.K.T.SIDHIQ : PRESIDENT

SMT.P.RAMADEVI : MEMBER

SMT.P.P.SHYMALA DEVI : MEMBER

K.Abdulla Kunhi,

S/o. Abdul Rahiman,

Ayisha Manzil, Kanboka Compound,

Near Juhi Palli, Kudroli, Mangalore, } Complainant

Karnataka State. Rep. by his Power of

Attorney Holder, T.M. Abdul Latheef,

S/o. T.M. Aboobacker Haji, Thekkepuram House,

Keekan.Po, Pallikkare Village, Hosdurg Taluk.

(Adv. N. Vijayakumar, Hosdurg)



The Manager,

National Insurance Company Ltd, } Opposite party

M.G.Road, Kasaragod,

Po.Kasaragod. Kasaragod.Dt.

(Adv. U.S. Balan, Kasaragod)

O R D E R
SRI.K.T.SIDHIQ, PRESIDENT

Complainant Sri. Abdulla Kunhi, the RC Owner of the Maruti Zen Car bearing Reg.No.KA.19/P8998 insured with opposite party filed this complaint through his Power of Attorney T.M. Abdul Latheef alleging deficiency in service on the part of opposite party on account of the repudiation of his claim for own damages. According to him vehicle was stolen during the period of policy coverage. Since the complainant was employed abroad the theft of the vehicle was reported to opposite party by one Mohammed Kunhi who was in possession of the vehicle.

2. According to opposite party the complainant Abdulla Kunhi has no insurable interest at the time of theft of the vehicle and the application for claim form was preferred by one Moosa Kunhi. The theft of the vehicle was also reported to the Bekal Police by Moosa Kunhi and as per the FIR lodged before the police his brother Moideen purchased the car. Therefore the claim of the complainant Abdulla Kunhi was repudiated holding that he has no insurable interest.

3. On the side of the complainant Exts A1 to A9 marked. On the side of opposite party Sri.E.Damodaran, Branch Manager of National Insurance Co. Ltd, filed affidavit and Exts B1 to B15 marked. Both sides heard.

4. Ext.A1 is the RC of the Maruti Zen Car bearing Reg.No KA-19/P 8998. As per the endorsement in the RC the vehicle stands transferred in the name of K. Abdulla Kunhi, S/o. Abdul Rahiman, the complainant herein w.e.f. 14-03-2000. Ext.A2 is the tax receipt. Ext.A3 is the policy issued by opposite party pertaining to the vehicle bearing Reg.No. KA.19/P8998. In all the above documents the name of the RC owner is Abdulla Kunhi the complainant herein. Ext.A4 is the FIR lodged before the Bekal Police with respect to the theft of the vehicle. The FIR is lodged by one Moosa Kunhi.

5 According to opposite party theft of the vehicle was occurred after the purchase of the car by Moideenkunhi and the policy records were submitted by Moosa Kunhi. Hence the complainant Abdulla Kunhi lost his insurable interest on the vehicle and therefore the claim is repudiated.

Now the only point to be decided in this case is whether the complainant is entitled for the reliefs claimed or not?

6. It is seen that all the documents such as RC Book, tax receipt, insurance policy etc are in the name of the complainant himself. It is also evident from the documents submitted by the opposite party that the application for claim form was submitted by one Moosakunhi a person other than the owner of the vehicle.

7. It is important to note that Sec. 146 of the M.V. Act requires insurance of the vehicle. Once the vehicle is covered by the insurance not only the owner but any person can use the vehicle with his permission.

8. Here the complainant who is the RC Owner cum policy holder of the stolen vehicle has no case that he has transferred the title of the vehicle to any one. Hence the principles detailed in the case of Shri Narayan Sing V New India Assurance Co. Ltd reported in IV (2007) CPJ 289 (NC) has no application to this case that says that “ On transfer of a vehicle, the benefits under the policy in force will automatically accrue to the new owner. The bonus/malus already applicable for the policy would continue until expiry of the policy. On expiry or cancellation of the policy, bonus/malus will apply as per the new owner’s entitlement”.

9. Even if the case of the Opposite party is accepted that the vehicle is transferred without changing the title, it is incorrect to assume that the moment the possession of the vehicle is handed over to the transferee the statutory obligation under the relevant sections of the MV Act ceases and original owner is no longer guilty of causing or allowing the purchaser to use the vehicle. The mere passing of the vehicle to the transferee will not put an end to this liability. U/s 50 of the MV Act the transferor shall within 14 days of the transfer report the fact of transfer to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee. The failure to comply with Sec 50 is made punishable under Sub Section 3 of Sec.50. Thus it is seen that till the transferor fulfills the statutory obligation U/s 50 his liability continues. Further he is the ostensible owner of the vehicle so long the registration is not changed. The liability to pay tax continues irrespective of his rights against the transferee for reimbursements. In Northern India General Insurance Co. Ltd V. Kanwarjet singh AIR 1973 All 357 it was held that a registered owner would have sufficient interest to effect insurance because he is the ostensible owner. Thus it is seen that the public liability to notify the transfer and get no objection certificate U/s 48 of the MV Act would make the original owner to retain the insurable interest. So long as such obligation continues not withstanding the giving up of the proprietory interest which is the foundation for the continuance of the operation of the policy stands.

10. Further the Hon’ble NCDRC in the case of Banowarilal Agarwalla V National Insurance Co. Ltd reported in IV (2005)CPJ 110 (NC) has held that the transferee who filed complaint for own damage claim while the certificate of insurance stands in the name of transferor has no locus standi to file the complaint since he was not the insured. The Hon’ble Commission further held that the technicality should not come in the way of insurance company honoring its part of contract if the principles of indemnification of loss by insurers are considered. Accordingly the Hon’ble National Commission directed the insured (transferor) to file the claim as per the policy. This complaint is preferred by the RC Owner cum policy holder of the stolen vehicle. Hence applying the principles enunciated in the above cited decisions it can be concluded that the complainant has got the locus to file this complaint and get indemnified the loss sustained due to the theft of the car.

11. Reliefs & Costs.

The Insured Declared Value of the vehicle at the time of issuing the policy was Rs.1,80,000/-. The policy was issued on 10-05-2003 and the theft was occurred on 23/24-08-03 i.e. approximately 3 months after the insurance. The Insurer is therefore entitled to deduct a sum of Rs.10,000/- by way of depreciation.

In the result the complaint is allowed and opposite party is directed to pay Rs.1,70,000/- to the complainant with a cost of Rs.2000/-. Time for compliance is limited to 30 days from the date of receipt of copy of the order. Failing which the complainant is entitled for interest @ 9% from the date of complaint i.e. 22-08-08 till payment for the principal amount Rs.1,70,000/-.

C.C. No. 01/2008

The Secretary and Correspondent,

Sengundar Arts, Science College,

Neikarapatti,

Kuppandapalayam Post,

Tiruchengode Taluk,

Namakkal District. .. Complainant.

.Vs.

1. National Insurance Co. Ltd.,

81-D, Chetti Street,

Tiruchengode.



2. National Insurance Co. Ltd.,

Balaji Tower,

11, Ramakrishna Road,

Salem-636 007.



3. National Insurance Co. Ltd.,

Regional Office,

Kovai Stock Exchange Building,

684, Trichi Road,

Coimbatore. ..Opposite Parties.



This complaint coming on for final hearing before us on 04.11.2009 in the presence of Thiru N.D. Natanasabesan, Advocate for Complaiannt and of Thiru K. Pandiyan, Advocate for Opposite Parties and after hearing of both sides and having stood over till this day for consideration, this Forum passed the following order:
ORDER

This complaint is filed under Section 12 of the Consumer Protection Act.
The crux of the complaint is:-

The complainant is educational institution and operating colleges buses for commuting students. But bearing Reg.No.TN-28-B-7999 is plied between College and Jalagandapuram and vice versa for picking and dropping college students. While so on 11.07.2005 the bus bearing Reg.No.TN-28-B-7999 got break down near R.S. Bridge, Sankaragiri in the evening when the bus was on its way to drop the students. The students traveling in the said bus got standard at that point. The college management considering the evening time and safety of its girl students deputed another bus bearing Reg.No.TN-28-A-6999 plying in Erode route to drop the students. The above said bus while carrying the stranded girl students was nearing Avaniyoor Kottai an Tamil Nadu State Transport Corporation bus came in a rash and high speed dashed against the bus and due to the impact the bus suffered extensive damages. The accident was immediately reported to the Edapadi Police Station and after the bus was inspected by the Motor Vehicle Inspector was brought to Sri Ram Coach was carrying repairs. The said bus was insured with the 1st opposite party and the policy was in subsistence at the time of accident. The repair works where carried out vide receipt dated 16.07.2005 for Rs.77,750/-. The complainant submitted claim form along with all documents with the 1st opposite party. Subsequently the 1st opposite party kept on delaying the settlement of claim amount and instructed the complainant to contact 2nd opposite party. The 2nd opposite party repudiated the claim stating that the bus has plied in a route not permitted at the time of accident. The complainant on 31.11.2005 made an appeal to the 3rd opposite party but he too on 12.12.2005 refused to allow my appeal. The bus was insured with the 1st opposite party and as such they are duty bound to settle the claim. The wrongful repudiation of the complainant’s claim by the opposite parties amount to deficiency in service. The complainant has lodged this complaint to direct the opposite parties to pay Rs.3,00,000/- towards damages to the vehicle with interest, compensation and cost.

2. The crux of the 1st opposite party’s written version is:-

The opposite parties contended that the bus involved in the accident is not in the permitted route. This amounts to violation of policy condition. This has been intimated to the complainant on various occasions. As the complainant has violated the policy conditions they are not entitled to pay any compensation. Hence there is no question of paying any compensation. The expenses incurred by the opposite party for repairing the vehicle or not admitted. Hence the complaint has to be dismissed with cost.

3. The complainant to prove his case has filed proof affidavit along with 15 documents and the same has been marked as Ex.A1 to Ex.A15. The opposite party has filed proof affidavit along with 2 documents and the same has been marked as Ex.B1 to Ex.B2.

4. The point for consideration is:-

Whether there is any deficiency in service on the part of the

opposite parties and if so to what relief the complainant

is entitled for?

5. POINT:- The complainant is educational institution and operating colleges buses for commuting students. But bearing Reg. No.TN-28-B-7999 is plied between College and Jalagandapuram and vice versa for picking and dropping college students. While so on 11.07.2005 the bus bearing Reg.No.TN-28-B-7999 got break down near R.S.Bridge, Sankaragiri in the evening when the bus was on its way to drop the students. The students traveling in the said bus got stranded at that point. The college management considering the evening time and safety of its girl students deputed another bur bearing Reg.No.TN-28-A-6999 plying in Erode route to drop the students. The above said bus while carrying the stranded girl students was nearing Avaniyoor Kottai an Tamil Nadu State Transport Corporation bus came in a rash and high speed dashed against the bus and due to the impact the bus suffered extensive damages. The accident was immediately reported to the Edapadi Police Station and after the bus was inspected by the Motor Vehicle Inspector was brought to Sri Ram Coach was carrying repairs. The complainant to the prove accident has produced and placed before us the FIR as Ex.A1. A perusal of the Ex.A1 clearly establishes that the said vehicle has met with an accident and the Edapadi Police has filed a criminal case u/s. 279 and 337 IPC in Crime No.285/2005. The said bus was insured with the 1st opposite party and the policy was in subsistence at the time of accident. The complainant has produced and placed before us the insurance policy as Ex.A5. It can be evidenced that the policy is issued covering a period from 06.03.2005 to 05.03.2006. The accident has taken place on 11.07.2005. The complainant has clearly established that the accident has taken place when the policy was in force. The repair works where carried out vide receipt dated 16.07.2005 for Rs.77,750/-. The complainant submitted claim form along with all documents with the 1st opposite party on 26.07.2005. The copy of the letter and the claim form has been produced and placed before us Ex.A2 and Ex.A7. The copy of the driving license of the driver of the the complainant’s bus has been produced and placed before us as Ex.A8 which establishes the driver on the wheel at the time of the accident was having valid driving license to drive the vehicle. But, the opposite parties has repudiated the complainants claim on 15.02.2006 and the copy of the said communication has been produced and placed before us as Ex.A.14. The complainant states that wrongful repudiation by opposite parties are deficiency in service. The opposite parties on the other hand had strongly contended that the bus involved in the accident is not traveling in the permitted route at the time of accident and this amounts to violation of policy condition. The permit has been produced and placed before us by both sides. The opposite parties main contention here is that the complainant has violated the policy conditions and hence they are not entitled to pay any compensation and hence there is no question of paying any compensation. The college management on the other hand states that on the request/directions of the police officials to make alternative arrangement and also taking into account the safety of its stranded girl students (due to break down of the college bus in which they where traveling) has deputed another bus bearing Reg.No.TN-28-A-6999 plying in Erode route to drop the students. This bonafide act of the complainant-instituion cannot be construed as willful violation of permit condition. While disowning the liability, a duty is also cast upon the opposite party to show that the accident is result of violation of policy condition. Absolutely no evidence was adduced in this regard by the opposite party. The accident of the complainant’s vehicle is not due to violation to permit conditions and the opposite party has not contended or establishes that accident is result of violation of policy condition. On several occasions due to major accidents all vehicles are diverted by authorities concerned to take alternative circuitous route and this cannot be construed as willful violation of permit condition. The present case is also one such act. There is no willful misuse of vehicle by the Complainant. The misuse of the vehicle was somewhat irregular though, but no so fundamental in nature so as to put an end to the contract, unless some factors which, by themselves had gone to contribute to the causing of the accident. Hereto there is no willful violation of permit conditions by the complainant in fact the gravity of the unfortunate and unexpected situation has warranted them to act and this has been clearly established by the complainant. The complainant is not a commercial operator of bus services and the vehicle involved in the accident bus is only college bus for commuting student community. The complainant being an educational institution has responsibility to act prudently and has to make alternative arrangement to assure the paramount safety of their stranded girl students. If we approach the present issue in the above said back ground, it cannot be said that there was any willful breach of permit conditions. In light of the above discussions and considering the facts and circumstances of the case we have no hesitation to hold that the repudiation of complainant’s claim by opposite parties as deficiency in service on their part. The complainant is entitled to get Rs.77,750/- being the amount spent by him for carrying out the repairs to the damaged vehicle. The wrongful repudiation of the complainant’s claim by the opposite party insurance company would have definitely caused hardship and mental agony to the complainant and as such he is entitled for compensation.

7. In the result, the complaint is allowed and the opposite parties are directed to pay Rs.77,750/- to the complainant along with interest at the rate of 7.5% per annum from the date of repudiation i.e.15.02.2006 till date of payment. Further the opposite parties are directed to pay a sum of Rs.25,000/- as compensation for the mental agony suffered by the complainant and Rs.1,500/- as cost of this complaint. Time for compliance one month from the date of this order.

Pronounced by us in Open Forum, this the 19th day of November,2009.

Late Dulal Roy Serial No- 01293511/200102426494,Policy No- 100300/47/01/9600022/01/96/00428,Insured:- Goldn Multi Service Club of G.T.F.S

Complaint No. 245/2008
Ravibhai Mansukhbhai Jambukia

"Shri Ram Niwas", Bhomeshvar Vadi-3

Near Railway Crossing, Jamnagar Road

Rajkot. ..... Complainant



-Versus -



National Insurance Co. Ltd.

"National House", Dhebarbhai Road

(One-way),Rajkot. ...... Opponent
Shri N.F. - Advocate for the complainant
Shri H.C. Sayani - Advocate for opponent
Corum : Shri H. D. Chaglani, President

Shri B.J. Dave, Member
- JUDGMENT -

1. By filing present complaint under section-12 of the Consumer Protection Act, 1986, the complainant has claimed Rs.39,254/- under insurance policy with running interest @ 18% p.a. Further Rs.10,000/- towards cost of the complaint and Rs.25,000/- compensation on the ground of mental agony and harassment etc. against the opponent.



2. The facts giving rise to this complaint in short may be stated as follow :



That the complainant has purchased insurance policy for his vehicle namely Hero Honda Motorcycle, No. GJ-3BP-1110, for the period from 21-04-2007 to 20-04-2008. It is alleged that on 20-02-2008, complainant has parked his said Motorcycle near Nand Kishor Hall in Junction Plot area of the city of Rajkot and the ignition lock was applied. When he returned after some hours, it was not found there. He lodge the complaint with Pradyumnanagar Police Station on 17-02-2008. But even police also could not find it and police has submitted final summary in the matter. Now it is the case of the complainant after final summary filed by the police, he submitted his claim with necessary papers to opponent insurance company. But it was repudiated on the ground of breach of condition No. 4 of the policy vide its letter dated 04-06-2008, thereby, has committed deficiency in service. Therefore, the present complaint for the relief stated at out set.



3. Opponent has been served with notice, in response; opponent has filed written statement at Exh-8 and opposed the complaint. The contentions of opponent are stated in detail at Exh-7. Inter-alia, main contention of opponent may be stated as follow :



That opponent has not denied issuance of policy for the disputed vehicle. But in the contention of this opponent, the coverage given under the policy was as per terms and conditions of the policy. The vehicle of the complainant was stolen and it was found that complainant has parked his vehicle without taking proper care of the vehicle and it was parked without applying handle lock, which amounts to breach of condition No. 4 of the insurance policy. Therefore, claim was not payable and it was rightly repudiated by opponent as per terms and conditions and there was no deficiency in service on their part, and the complaint deserves to be dismissed.



4. In support of his case, complainant has produced documentary evidence at Mark-4/1 to Mark-4/11, Proof affidavit at Exh-11. Interrogatories Exh-13 in connection with affidavit produced by opponent (Exh-10) Except this, complainant has adduced no other evidence.



5. The opponent has proof affidavit at Exh-9, affidavit of investigator Mr. R.A. Kandia at Exh-10 and reply to interrogatories on oath at Exh-14. Except this opponent has adduced no other evidence.



6. The complainant has submitted written arguments at Exh-15.



7. Opponent No. 1 has submitted written arguments at Exh-17.



8. From the facts of pleadings, evidence on record and in view of arguments of the parties, following points arose for our determination :



1) Whether complainant proves that opponent has committed deficiency in service by illegal repudiation of his claim under inurance policy for his Hero Honda Motorcycle bearing No.GJ-3BP-1110?



2) To what relief complainant is entitled for?



3) What order?
9. Our findings on the above stated points are as follow for the reasons stated below :

1) In partly Affirmative.

2) Complainant is entitled to Rs.29,440/-, 75% of the policy amount (the value of vehicle is Rs.39,254/- as per policy) on non-standard basis.

3) As per final order.

10. Reasons :

Issue No. 1 :

On this point, it is the case of complainant that the complainant has purchased comprehensive policy for his vehicle namely Hero Honda Motorcycle No. GJ-3BP-1110 for the period from 21-04-2007 to 20-04-2008, and during the currency of policy, on 20-02-2008, the vehicle was stolen when it was put in parking near Nand Kishor Hall in Junction Plot area of the city of Rajkot. He lodged the complaint regarding theft of his vehicle with Pradyumnanagar Police Station on 17-02-2008. Even during police investigation, vehicle was not traced out. Also police has submitted final summery in the matter. Thereafter, complainant lodged the claim with opponent with necessary papers to opponent insurance company. It was in say of the complainant, the claim was illegally repudiated by opponent on the ground violation of condition No. 4 though vehicle was locked when was put in parking. But opponent illegally repudiated the claim on the ground that handle lock was not applied to vehicle and thereby complainant committed breach of condition No. 4. It is nothing but deficiency in service on part of the opponent.



The opponent did not deny that fact of issuance of comprehensive policy for the disputed vehicle. Only the defence of opponent is that as per condition No. 4, insured (complainant) was under obligation to take all the care to safeguard the vehicle, but he did not put his vehicle in lock in the parking resulted into theft of the vehicle. So the claim was rightly repudiated and there was no deficiency in service on part of the opponent.



In view of controversy between the parties, if we turn to evidence on record, Mark-4/1 is the police complaint given by the complainant himself on 17-02-2008. In the last few lines of this document, it was admitted that vehicle was not locked. Thereafter, in proof affidavit Exh-11, at para-4, complainant has improved his version and tried to say that vehicle was locked when it was put in parking. But in hour humble view, it is the improvement subsequently made by the complainant after lodging complaint with police. On perusal of Mark-25/1 the insurance policy, as per condition No. 4, it was obligatory for complainant in words of condition No. 4 itself read as follow :



"4. The insured shall take all reasonable steps to safeguard the vehicle from loss or damage....."



Here complainant did not care to lock the vehicle, when it was put in parking.



Now it is the argument of Mr. N.F. Jadeja, Ld. Advocate for the complainant that claim of complainant was rejected on technical ground like breach of condition No. 4 of the Insurance Policy as vehicle was not locked. But there is no nexus between the incident of theft and vehicle was unlocked at the time of loss. But in our humble view, as per settled position of law, breach of terms and conditions of the policy is not applicable in case of theft or robbery. In the case of National Insurance Co. Ltd., Vs. Nitin Khandelwal reported in 2008 ACJ 2035 SC, it was held by the Hon'ble Supreme Court that -



"Motor Insurance - Theft of Vehicle -Comprehensive Policy - Repudiation of claim - Some unknown persons stopped the vehicle, tied the driver and took the vehicle which could not be recovered - Insurance company repudiated the claim on the ground that vehicle was insured for personal use but it was being used as taxi for carrying passengers - Owner filed complaint in the District Forum under Consumer Protection Act which held that insurance company was justified in rejecting the claim as the owner had violated terms and conditions of policy - State Commission observed that theft of vehicle has not been denied by insurance company and directed it to settle the claim on non-standard basis by paying per cent of the amount - National Commission confirmed the order - Whether the insurance company is liable to indemnify the insured for his loss when he has taken comprehensive policy - Held : Yes; breach of terms of policy is not germane in case of theft of vehicle".



In our case, as per police papers, the vehicle was stolen by unknown person, but claim was totally repudiated. So it is deficiency in service on part of the opponent in as much as the claim was totally repudiated by the opponent. In fact, it was obligatory to settle the same on non-standard basis by paying 75% of the insurance amount. In the result, we hold this point in partly affirmative.



Issue No. 2 :

On this point complainant has claimed Rs.35,000/- towards value of vehicle with running interest @ 18% p.a. Further compensation in tune of Rs.25,000/- and Rs.10,000/- towards cost of the complaint. In view of partly affirmative answer to point No. 1, opponent is under obligation to settle the claim under non-standard basis i.e. by paying 75% of the insurance amount. As per Mark-4/5 the total value of the vehicle is shown Rs.39,254/-. Now opponent is under obligation to pay 75% of the said amount i.e. Rs. 29,440/-. Accordingly we hold this point in the affirmative for the said amount. Complainant has also claimed compensation on the ground of mental agony, harassment and cost etc. but did not adduce any evidence to justify compensation. Even otherwise while discussing point No. 1, we discussed that vehicle was lost as complainant did not take care to safeguard the vehicle by applying lock, thereby committed breach of condition No. 4 of the insurance policy. In view of this fact, his claim was repudiated by opponent according to terms and conditions of the insurance policy and has not repudiated the claim in evasive manner. Therefore, in our humble view, complainant is not entitled to compensation as well as cost from the opponent. Simply he is entitled to 75% of the policy amount on non-standard basis. Accordingly, we hold this point in the affirmative for the above said relief. In the result following is the order :

: ORDER :

Complaint is partly allowed.

Opponent do pay Rs. 29,440/-, 75% amount of the insurance amount (the value of the vehicle Rs.39,254/- as per policy) to the complainant within 1 month period from the date of this order. Failing which it will carry 8% interest p.a.

Parties are left to incur their own costs.

Pronounced in the open forum on this 19th day of November, 2009.

Complaint No. 173/2008


Shri Chirag Ravjibhai Lalakiya

Resi. at Laxmiwadi Quarters

Room No. 176, Block No. 22

Rajkot. ..... Complainant



-Versus -



National Insurance Co. Ltd.

"National House", Dhebarbhai Road

Rajkot. ...... Opponent
Shri H.J. Lalakiya - Advocate for the complainant

Shri Sunilbhai Modha - Advocate for opponent
Corum : Shri H. D. Chaglani, President

Shri B.J. Dave, Member

- JUDGMENT -
1. By filing present complaint under section-12 of the Consumer Protection Act, 1986, the complainant has claimed Rs.35,000/- under insurance policy with running interest @ 18% p.a. against the opponent.

2. The facts giving rise to this complaint in short may be stated as follow :

That the complainant serves with For Molt Computers. He purchased Comprehensive Insurance Policy from opponent for his vehicle Hero Honda Splendor Plus No. GJ-3GB-7601, for the period from 31-03-2007 to 30-03-2008. During the currency of insurance policy, on 13-03-2008, complainant had attended his office and from the office had gone out side for office work and had parked his Motorcycle in the parking of "Star Chambers" and had gone on 4th story in the "Star Chambers" for his work. After getting his work finished when he returned at about 11-30 a.m., he did not find his vehicle in the parking. In his own way, he tried to search the vehicle, but it was not found. He immediately lodged the complaint regarding theft of his vehicle with A-Division Police Station on 24-03-2008. In that connection, police had also made Panchnama. The complainant had intimated opponent insurance company regarding theft of his vehicle on 26-03-2008. Thereafter, submitted his claim with opponent insurance company. In reply opponent insurance company repudiated his claim vide its letter dated 04-06-2008 stating that claim is not payable as complainant has violated condition No. 4 by leaving the vehicle without steering lock. In say of the complainant, in fact, he had put the vehicle in parking and at that time it was locked. Albeit steering lock was not applied (handle lock). Under these circumstances, opponent insurance company ought to have settled the claim of complainant, but illegally the claim of the complainant was repudiated. Thereby opponent has committed deficiency in service. Therefore, the present complaint for the relief stated at out set.



3. Opponent has been served with notice, in response; opponent has filed written statement at Exh-7 and opposed the complaint. The contentions of opponent are stated in detail at Exh-7. Inter-alia, main contention of opponent may be stated as follow :



It is admitted by this opponent that complainant has purchased comprehensive insurance policy for his vehicle. But it is denied by this opponent that on 13-03-2008, complainant after parking his Motorcycle in the parking of "Star Chambers, went to 4th floor for his work, and when he returned to parking place, his Motorcycle was not found there. It is denied by this opponent that Motorcycle was locked when it was put in the parking and that complainant was not careless. Further, it is contended by this opponent that as per F.I.R. complainant Chiragbhai himself had mentioned that at the time of lost of Motorcycle, it was parked in the parking without lock, and further the complainant has stated the same thing in his statement before Mr. A.U. Badi, the investigator of opponent insurance company that Motorcycle was parked without handle-lock. Under these Circumstances, complainant had committed breach of condition No. 4 of the insurance policy and his claim was rightly repudiated.



4. In support of his case, complainant has produced documentary evidence at Mark-3/1 to Mark-3/9, Mark-12/1 as well as Mark-16/1 to Mark-16/2 and Proof affidavit at Exh-13. Except this, complainant has adduced no other evidence.



5. The opponent has produced documentary evidence at Mark 8/1 and Mark-8/2 and proof affidavit at Exh-9. Except this opponent has adduced no other evidence.



6. The complainant has submitted written arguments at Exh-17.



7. Opponent No. 1 has submitted written arguments at Exh-21.



8. From the facts of pleadings, evidence on record and in view of arguments of the parties, following points arose for our determination :



1) Whether complainant proves that opponent has committed deficiency in service by illegal repudiation of his claim under comprehensive policy for his Hero Honda Splendor Plus Motorcycle bearing No.GJ-3BG-7601?



2) To what relief complainant is entitled for?



3) What order?

9. Our findings on the above stated points are as follow for the reasons stated below :
1) In partly Affirmative.



2) Complainant is entitled to Rs.24,750/-, 75% of the policy amount (the value of vehicle is Rs.33,000/- as per policy) on non-standard basis.



3) As per final order.

10. Reasons :

Issue No. 1 :

On this point, it is the case of complainant that he has got the vehicle in his ownership namely Hero Honda Splendor Plus bearing No. GJ-3BG-7101 model-2006. He purchased comprehensive policy for his vehicle from opponent insurance company for the period from 31-03-2007 to 30-03-2008. During the currency of policy, on 13-03-2008, complainant had parked his above said vehicle in the parking of Star Chambers and gone for his work at 4th story in the Star Chambers and when he returned from there at about 11-30 a.m. his vehicle was not found there. Thereafter, he lodged the complaint regarding theft of his vehicle in the police station and submitted his claim with necessary papers to opponent insurance company, but it was repudiated on the ground that vehicle was not applied with handle lock. Thereby complainant had violated condition No. 4 of the insurance policy and claim was not payable. In the say of the complainant in fact the vehicle was locked and it was it was put in the parking still opponent has repudiated his claim illegally and thereby committed deficiency in service.



Now it is the defence of opponent that as per FIR given by complainant Mr. Chirag Lilakiya, he himself has admitted in his FIR that at the time of loss of vehicle (Motorcycle), it was parked without applying lock. Therefore, his claim was rightly repudiated.



In view of controversy between the parties, there is no dispute regarding issuance of the Comprehensive policy for the vehicle in dispute, and further that during the currency of policy, it was lost. Only the controversy between the parties is whether the vehicle was put in the parking without applying lock and thereby complainant committed breach of condition No. 4 of the insurance policy?



If we turn to evidence on record in reference to controversy between the parties, Mark-3/3 is the FIR lodged with A-Division Police Station by the complainant himself on 24-03-2008. In the last cumulative line of this FIR, it was clearly mentioned that the vehicle was put in the parking without applying handle lock. Thereafter, in proof affidavit Exh-13, at para-4, complainant has improved his version and tried to say that vehicle was locked when it was put in parking. But in hour humble view, it is the improvement subsequently made by the complainant after lodging complaint with police. On perusal of Mark-3/1 the insurance policy, as per condition No. 4, it was obligatory for complainant in words condition No. 4 itself read as follow :



"4. The insured shall take all reasonable steps to safeguard the vehicle from loss or damage....."



Here complainant did not care to lock the vehicle, when it was put in parking.



Now it is the argument of Mr. H.J. Lalakiya, Ld. Advocate for the complainant that the claim of complainant was rejected on technical ground like breach of condition No. 4 of the Insurance Policy as vehicle was not locked. But there is no nexus between the incident of theft and vehicle was unlocked at the time of loss. In support of his argument he relied on the decision of Hon'ble U.P. State Commission in the case of Avis Ahemad Vs. New India Insurance Co. Ltd. reported in 2001 CPC 137 and on the decision of Hon'ble Punjab State Commission in case of National Insurance Co. Ltd. Vs. Nirpritsingh reported in 2001 CPC 135. But Mr. Lalakiya has not produced this authority, simply he referred above cited judgements in his written submission. But in our humble view, as per settled position of law, breach of terms and conditions of the policy is not applicable in case of theft or robbery. in the case of National Insurance Co. Ltd., Vs. Nitin Khandelwal reported in 2008 ACJ 2035 SC. In that case it was held by the Hon'ble Supreme Court that -



"Motor Insurance - Theft of Vehicle -Comprehensive Policy - Repudiation of claim - Some unknown persons stopped the vehicle, tied the driver and took the vehicle which could not be recovered - Insurance company repudiated the claim on the ground that vehicle was insured for personal use but it was being used as taxi for carrying passengers - Owner filed complaint in the District Forum under Consumer Protection Act which held that insurance company was justified in rejecting the claim as the owner had violated terms and conditions of policy - State Commission observed that theft of vehicle has not been denied by insurance company and directed it to settle the claim on non-standard basis by paying per cent of the amount - National Commission confirmed the order - Whether the insurance company is liable to indemnify the insured for his loss when he has taken comprehensive policy - Held : Yes; breach of terms of policy is not germane in case of theft of vehicle".



In our case, as per police papers, the vehicle was stolen by unknown person. So it is deficiency in service on part of the opponent in as much as the claim was totally repudiated by the opponent. In fact, it was obligatory to settle the same on non-standard basis by paying 75% of the insurance amount. In the result, we hold this point in partly affirmative.



Issue No. 2 :



Complainant has claimed Rs.35,000/-. As per policy Mark-3/1, the value of vehicle was R.33,000/-. On this point complainant has claimed Rs.35,000/- towards value of vehicle with running interest @ 18% p.a. Further compensation and cost etc. In view of partly affirmative answer to point No. 1, opponent is under obligation to settle the claim under non-standard basis i.e. by paying 75% of the insurance amount. As per Mark-3/1 the total value of the vehicle is shown Rs.33,000/-. Now opponent is under obligation to pay 75% of the said amount i.e. Rs.24,750/-. Accordingly we hold this point in the affirmative for the said amount. Complainant has also claimed compensation on the ground of mental agony, harassment and cost etc. but did not adduced any evidence to justify compensation. Even otherwise while discussing point No. 1, we discussed that vehicle was lost as complainant did not take care to safeguard the vehicle by applying lock, thereby committed breach of condition No. 4 of the insurance policy. In view of this fact, his claim was repudiated by opponent according to terms and conditions of the insurance policy and has not repudiated the claim in evasively manner. Therefore, in our humble view, complainant is not entitled to compensation as well as cost from the opponent. Simply he is entitled to 75% of the policy amount on non-standard basis. Accordingly, we hold this point in the affirmative for the above said relief. In the result following is the order :



: ORDER :



Complaint is partly allowed.

Opponent do pay Rs.24,750/-, 75% amount of the insurance amount (the value of the vehicle Rs.33,000/- as per policy) to the complainant within 1 month period from the date of this order. Failing which it will carry 8% interest p.a.

Parties are left to incur their own costs.

Pronounced in the open forum on this 17th day of November, 2009.

C.D. Case No. 27 of 2007

IN THE MATTER OF

Sri Jagendra Kumar Sethi

Vill : Rogang,

Po- Kuliposi

P.S. Karanjia

Dist- Mayurbhanj

....................................... Petitioner

-VRS-

Branch manager,

National Insurance Co. Ltd.

Baripada Branch,

Roxy Road, Baripada .......................................Opposite Party

Present:

Sri H. K. Panigrahi, President

Smt. Anupama Mohanta, Member

Sri K.C. Nayak, Member



Counsels:

For the Complainant: Sri S. K. Dash & Associates

For the Opposite party: Sri Bijan Das



Date of Hearing: 23-11-09

Date of Order:24-12-09

J u d g m e n t

Sri K.C. Nayak, Member

Complaint filed by the petitioner u/s 12 of C.P. Act’86 for redressal of the dispute alleging deficiency in service.

The petitioner insured his Mahindra Jeep bearing No. OR-02V-6385 with the OP (National Insurance) vide Pol. No. 163001/31/05/630000202 valid from 29.09.05 to 28.09.06. He engaged one Chandrakanta Mohakud to drive the said vehicle after due verification of his DL No. 5317/2002-03 and being satisfied over his test driving. During currency of the policy, the said vehicle met an accident on 13.3.06 vide SDE No. 299 dt. 14.03.06, Karanjia, P.S., causing damage to the vehicle. The petitioner lodged a claim before the opposite party which was repudiated vide its letter 163001/M.Cl/1609/06 dt. 04.09.06 on the ground that the driver had no effective D.L. at the time of accident. He alleges that the OP deliberately & arbitrarily rejected the claim causing him heavy monetary loss and mental agony. The OP is deficient in service. He prays for repairing cost of the vehicle with compensation & cost from OP. He further files written version with citation in favour of his contention.

He relies on the following documents.

1) Xerox copy of RC Book of OR-02V-6385 ……….Annexure-1

2) Xerox copy of Policy No.

163001/31/05/630000202 ……….Annexure-2

3) Xerox copy of DL of

Chandrakanta Mohakud ……….Annexure-3

4) Xerox copy of Letter to

Karanjia PS dt. Nill ……….Annexure-4

5) Xerox copy of Extract of

SDE no 299 dt. 14.03.06 ……….Annexure-5

6) Xerox copy of Pre-Repudiation

Letter dt. 25.05.06 by OP ……... Annexure-6

7) Xerox copy of Repudiation

Letter dt. 04.09.06 by OP ……….Annexure-7

8) Xerox copy of Estimate on

OR-02V-6385 ……….Annexure-8



OP( National Insurance) appears through its counsel and submits WS admitting to have issued policy against the alleged vehicle which met an accident on 13.03.06. On getting the intimation OP deputed surveyor Mr. Srit Kumar Das to survey and access the loss.

The insured- petitioner submitted the claim form before OP on Dt. 14-03-06, the surveyor submitted survey report on dt.25-05-06 assessing the lost to the tune of Rs. 21182.50.



The DL No. 5317/2002-03, LA – Raipur was verified by OP which was found to be a fake one as the LA, Raipur (CG) has not issued such DL. OP in its letter No. 486 Dt. 25-05-06 send a show cause to the petitioner asking him to furnish the reason as to why the claims shall not be repudiated on the ground of fake DL of the alleged driver which is a gross violation of the policy condition. The said letter was not replied by the petitioner and finally the OP repudiated the said claim as per its letter No. 1609 dt. 04/09/06. OP alleges that the driver C. Mohakud (23) is a permanent resident of Baripada possessed a DL issued by a Raipur LA obviously creates suspicion and the owner (Petitioner) knowing fully well about the said fake DL, appointed him to drive his vehicle which is a violation of policy condition and thus repudiation of the said OD claim. There is no deficiency in service, hence the case be dismissed.

OP relies on the following document to substantiate it’s case.

1) Investigator’s report ………….. Annexure A

2) Certificate issued by LA, Raipur (C.G) ………….. Annexure B

3) Surveyor’s report ………….. Annexure C

On hearing the pleadings from both parties and going through the documents and citations filed by both parties we frame the following issues to determine the case.

1) Whether the claim comes under the purview of CP Act.

2) Whether DL in question was genuine or a fake one.

3) Whether repudiation of damage claim is justified by OP on the grounds of invalid and fake DL.

4) To what extent of relief is payable if claim is allowed.

5) Whether there is deficiency in service by the OP.



Issue 1

On perusal of the records it’s revealed that the vehicle in question was registered under IV i.e. as commercial vehicle and the vehicle was placed for insurance to be covered under commercial policy. The owner of the vehicle also engaged a professional driver to ply the said vehicle. So there is priema facie evidence that the vehicle was being used for commercial purpose. As such the case does not come under the purview of CP Act.

Issues 2, 3 & 4

The petitioner in his plaint as well as in the written version states that the driver Chandrakanta Mohakud possessed a valid DL bearing no 5317/2002-03, LA, Raipur which was being renewed from time to time. After being satisfied over the test driving of the said driver, he allowed him to drive his vehicle. So he has committed no breach of policy condition. He cites the decision of Supreme Court reported in 2006 (II) OLR 700, Lalchand vrs Oriental in favour of his argument. Also he cites the decision of National Commission reported in 2009 (III) XPR in support of his version.

But we are not going to buy the pleadings and arguments advanced by the petitioner in respect of verification of alleged DL No. 5317/2002-03, LA, Raipur because he has not produced certified copy of the said DL which has been disputed by the OP. On the other hand the OP obtained the certificate of the said DL issued by LA, Raipur and filed as Annexure –B in which the licensing authority, Raipur states that “No Such DL has been issued by them”. The certificate issued by the licensing authority is an authentic public document. More over, the so called test driving conducted by the petitioner is nothing but travesty of truth. He is not the competent authority to conduct a test driving of a driver of threshold stage. A young driver of 20 years hardly crossing “teen” who is a permanent resident of Baripada town could posses a license issued by LA, Raipur(CG) & it is also renewed from time to time at Raipur only creates suspicion. So, there is flagrant violation of terms of insurance policy as well as breach of sec. 88 (I) of MV Act’88 and Rules.

We are in complete agreement with OPs latest citation case vide revision petition no 256/2009 decided on dt. 25-02-09 by Hon’ble National Commission, New Delhi, in which it held that “Repudiation of claim on ground that License of driver at the time of accident was found to be fake on verification, is justified”. “Where originally the license was a fake one, renewal cannot cure the inherent fatality”. Hence the case quoted in National Insurance Company Ltd. Vrs Laxmi Narain Dhut is squarely applicable to the case on hand.

Thus the above issues are answered accordingly.

Issue 5:

The accident occurred on the dt.13-03-06 the claim was intimated before the OP on 14-03-06. The OP immediately deputed surveyor who submitted his report on 25-05-06. On verification of the alleged DL which was found to be a fake one, the OP sent a show cause on 25-05-06 to the claimant as to why his claim should not be repudiated since violation of terms and conditions of insurance policy and MV Act’88. The claimant (petitioner) did not reply and ultimately the OP repudiated the claim on 04-09-06. Therefore in our considered opinion OP is in no way deficient in rendering service.

In consideration of legal aspect of the case in hand and deficiency, the case lacks merit, hence dismissed ab initio .Hence ordered.

Order

The case being devoid of merit is dismissed on contest. The parties are to bear their own cost.

The order is being pronounced in open forum this day 24th of December 2009 with seal and signature.

Present:

A) Sri Saurish Chakraborty President.

B) Smt.Swapna Kar Member.

C) Sri Swaraj Kumar Biswas Member.


Sumanta @ Sumantra Paul,

Son of Late Basanta Paul,

P.O. – Chopra, P.S. – Chopra,

District – Uttar Dinajpur. Complainant.
versus

1. The Divisional Manager,

National Insurance Company Limited,

Division – III, National Insurance Building,

8, India Exchange Place, Kolkata – 700 001.



2. The Branch Manager,

National Insurance Company Limited,

Raiganj Branch, Mohanbati,

P.O. and P.S. – Raiganj, Dist. – Uttar Dinajpur.

3. The Manager,

Golden Trust Financial Services,

Raiganj Branch, Mohanbati,

P.O. & P.S. – Raiganj,

District – Uttar Dinajpur. Opposite Parties.


Order No.: 06.

Date: 31.12.2009.

Record is put up for delivery of final order, which has arisen out of an exparte hearing of the complaint.

The present application Under Section 12 filed U/S 12 of Consumer Protection Act, 1986 has been filed by the Complainant Sumantra Paul praying for an order against the Opposite Parties for payment of Rs.1,20,000.00 together with the compensation of Rs.1,00,000.00 and litigation cost of Rs.5,000.00 on the ground that though he is a policy holder under the Opposite Party/ Insurer, National Insurance Company Limited has refused to pay his claim, which he was forwarded after an incident of accident (motor accident), which he has caused him to get his right hand imputed. As the Opposite Party/ Insurer No. 1 did not discharge the claim so this complaint.



Decision with reasons:



The Complainant has filed necessary papers and also filed his evidence in chief in affidavit in support of the case.



Now, from the documents, he filed, we do find that he met with a motor accident on 29.09.2006 and received severe injuries. The matter was reported to the Police of Islampur PS. The documents like copy of the FIR and Charge Sheet have also been filed.



Complainant claimed that his right hand was so badly damaged on account of said accident (motor accident); the doctor was compelled to amputate his right hand. Now, in the support the Complainant has filed a disability certificate issued by the zonal Medical Board, North Bengal Medical College. The Certificate shows that the Complainant Sumanta Paul is a physically, orthopedically, disable person with post traumatic L-bow amputation of right upper limb. The certificate further shows the board’s opinion about the percentage and nature of disability, the Complainant has suffered. According to the certificate, he has suffered 60% permanent disability caused by injury.



So, version of the Complainant is supported by his statement made in affidavit as well as from the contents of documents upon which he relied.



None is coming to challenge either the statement or the documents from the Insurance Company’s side except Opposite Party No. 3. Opposite Parties No. 3 appears without any written version.



So, in our view, the Complainant, who was a policy holder under the Opposite Party/ Insurer No.1 and 2, which was valid at the time of incident (motor accident) is entitled to claim the disbursement of the amount of his assured sum from the Opposite Party/ Insurer. The fact that the claim was met before the Opposite Party/ Insurer in righting with the signature of the doctor attending the Complainant has been proved by one filled in form with the receipt endorsement of the Opposite Party/ Insurer.



Now, we do find from the policy certificate itself that the sum insured was Rs.2,00,000.00. The Complainant has suffered 60% permanent disability. If that be so, he has entitled to claim 60% of the amount assured.



That’s apart we find from the disability certificate again that the Complainant, at present, cannot travel without assistance of escort. Upon considering the present state of his health we do think that a sum of Rs.10,000.00 be awarded as compensation to the Complainant for his pain and sufferings and to employ a escort (helper) as or when he needs. This apart we are of the opinion further that he should be awarded a litigation cost of Rs.1,000.00.



Fees paid are correct.



Hence, it is ordered,



That the complaint is allowed exparte with cost against the Opposite Party/ Insurer, National Insurance Company Limited and dismissed without cost against Opposite Party No. 3, Golden Trust Financial Company Limited.

The Complainant do get an order of award of Rs.1,20,000.00 (rupees one lac twenty thousand). Besides this the Complainant also do get an order of Rs.10,000.00 (rupees ten thousand) on account of compensation in addition he do also get an order of litigation cost of Rs.1,000.00 (rupees one thousand); totaling of Rs.1,31,000.00 (rupees one lac thirty one thousand) only within one month from the date of this order; in default the Complainant will be at liberty to claim the interest at the rate of 6.5 percent till full realization.

Furnish the true photocopies of this Final Order to the Complainant and to the Opposite Party No. 3 free of cost and send photo copies to the Opposite Party Nos. 1 and 2 by Registered Post free of cost.