Consumer Case No.: 16/2007.

Date of filing : 28.02.2007.

Date of final order : 04.12.2009.



Present:



A) Sri Saurish Chakraborty President.



B) Smt.Swapna Kar Member.



C) Sri Swaraj Kumar Biswas Member.





Joydeep Das,

Proprietor of Playwin Fortune Online Lottery Centre,

Town Club Lane, Ukilpara,

Raiganj, Uttar Dinajpur, West Bengal. Complainant.



versus



1. The Branch Manager,

National Insurance Company Limited,
Raiganj Branch,

Raiganj, Uttar Dinajpur, West Bengal.



2. The National Insurance Company Limited,

To be represented by the Divisional Manager,

Malda Divisional Office,

93-A, Rabindra Avenue,

Post Office and District – Malda. Opposite Parties.





Judgment

Date: 04.12.2009.

Joydeep Das, the Complainant has filed the present complaint claiming himself to be the proprietor of a concern styled as Playwin Fortune Online Lottery Centre against the Opposite Parties claiming an award of Rs.1,40,000.00 (rupees one lac forty thousand only) along with further sum of Rs.10,000.00 (rupees ten thousand only) for harassment and deficiency in service plus litigation cost of Rs.2,000.00 (rupees two thousand only).



The fact in brief is that the Complainant is the owner of the vehicle bearing No. WB-60B/3079, TATA Victa. He has insured his vehicle under Opposite Party No.1 under Insurance Policy bearing No. 150701/31/04/6101712, valid from 08.10.2004 to 07.10.2005 and the insured value of the vehicle was Rs.5,70,000.00 (rupees five lac seventy thousand only).



The said vehicle met an accident on 25.12.2004. After the accident FIR was lodged and a Police Case was started under Chopra Police Station. The Complainant further stated that after completing all formalities he claimed the insured value of Rs.5,70,000.00 and subsequently, he claimed monthly rental charge of the garage of Rs.16,000.00 and Bank Interest payable for the vehicle of Rs.82,000.00. Opposite Party No. 1 send a cheque of Rs.3,92,000.00 for settlement of the claim, which was accepted by the Complainant. Thereafter, the Complainant claimed the monthly rental of the garage, which was Rs.60,000.00 and the Interest of Rs.82,000.00 payable to the Bank as interest for the loan taken against the said vehicle. So, the Complainant alleged that there is a deficiency in service in the part of the Opposite Party/ Insurer for non-attending the claim. So this complaint has been filed praying for the amount already mentioned above, which the Complainant claims to be payable by the Opposite Party/ Insurer.



Opposite Party/ Insurer has contested the complaint by filing one written version according to the Opposite Party/ Insurer, the Complainant had no cause of action to bring this complaint. It has admitted that the vehicle in question faced an accident and few MAC Cases are pending before the Honorable Tribunal Judge at Raiganj and Islampur. That on receipt of intimation in respect of the said accident, the surveyor of the Opposite Party/ Insurer caused inspection and assessed the extend damage, that the said vehicle has suffered. On basing upon the report of surveyor, the Opposite Party/ Insurer fixed the amount and finally paid to the Complainant. There is no delay in dealing with the payment of compensation to the party as certain difficulties if necessary to be followed before settlement of the damage of the vehicle. There is no any claim that the Complainant can make against the Opposite Party/ Insurer.
Both sides have submitted their respective written argument and documents.


Let us now consider, whether the Complainant is entitled to get further amount in additional to the amount already paid by the Insurer.

Decision with reasons:

On a through scrutiny of the case of the Complainant, we do get conflicting version about the identity of the Complainant. Be it to be noted here that the Complainant has filed this case as proprietor of a concern named and styled as Playwin Fortune Online Lottery Centre. The disputed vehicle itself is insured in the name of the above concern. So, it appears to us that he is the proprietor of the said concern and in his capacity as proprietor, he has brought this complaint.



The Complainant has examined himself as a witness in this case.

Now, from the cross-examination of the witness, it appears that he has filed his evidence on affidavit-in-chief. It is to be noted that subsequently to his evidence dated 29.05.2008 a power of attorney is coming from the possession of the Complainant, which is executed on 02.01.2007. It is his claim that this special power of attorney was executed by the other partners of the concern, Playwin Fortune Online Lottery Centre. It is to be noted further that the executor of the said power of attorney namely Surajit Das and Lali Das have not been examined in this case. Their evidence is vital in the sense that the Opposite Party/ Insurer challenged the power of attorney. It is admitted fact that the Opposite Party/ Insurer has paid a sum of Rs.3,92,000.00 (rupees three lacs ninety two thousand only). It has been accepted by the concerned Complainant. The said amount was paid on the report of the investigator appointed by the Opposite Party/ Insurer to assess the damage suffered by the vehicle in question. The letter dated 31.08.2006 addressed to the claimant by the Divisional Manager of National Insurance Company Limited (Opposite Party/ Insurer ) clearly shows that the claim of the Complainant was settled finally and the grievance was treated as closed. The case of the Complainant is that it has made correspondence with the Opposite Party/ Insurer regarding the payment of garage charge, which was Rs.60,000.00 (rupees sixty thousand only) and arrear instalments of bank loan, which was Rs.82,000.00 (rupees eighty two thousand only). There are some papers filed on behalf of the Complainant in support of such correspondence and also a bank statement. We have gone through the papers carefully and found that all the correspondence made with the Opposite Party/ Insurer was before the final settlement of the claim. There is no paper to support that the Complainant has made further correspondence with the Opposite Party / Insurance Company claiming further payment subsequent to 31.08.2006. So, the papers, which are relied on by the Complainant was taken into consideration by the Insurance Company, while settling the claim finally. There is no case of the Complainant that it was forced by the Opposite Party/ Insurer to accept the settlement.

So, in view of all these, this Forum is in the opinion that no relief is open to the Complainant in facts and circumstances of the case.

Fees paid are correct.
So it is ordered

That the complaint is dismissed on contest with cost of Rs.2,000.00 to be paid by the Complainant to the Opposite Party/ Insurer.

Furnish the true photocopies of this Final Order to the parties free of cost.

consumer case(CC) No. CC/07/402

Dilip Kumar Senapati
...........Appellant(s)

Vs.

National Insurance Co. Ltd. and another
...........Respondent(s)


BEFORE:


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


ORDER

In the Court of the

Consumer Disputes Redressal Forum, Unit -I, Kolkata,

8B, Nelie Sengupta Sarani, Kolkata-700087.



CDF/Unit-I/Case No. 402 / 2007



1) Sri Dilip Kumar Senapati,

46/1/1,Kaibartapara Lane, Salkia,

Howrah-700006. ---------- Complainant

---Verses---

1) National Insurance Co. Ltd.

1, Shakespeare Sarani, Kolkata-71.



2) Golden Trust Financial Service,

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

Kolkata-700001. ---------- Opposite Party



Present : Sri S. K. Majumdar, President.

Sri T.K. Bhattachatya, Member.

Order No. 1 8 Dated 0 3 / 1 2 / 2 0 0 9 .


Complainant Sri Dilip Kr. Senapati by filing a petition u/s 12 of the C.P. Act on 17.12.07 has prayed for issuing direction upon the o.ps. viz. National Insurance Co. Ltd. o.p. no.1 and Golden Trust Financial Services o.p. no.2 to pay a sum of Rs.24580.30 along with interest and incidental cost and for any other order as the forum may deem fit and proper.

It is the specific case of the complainant that he availed a Group Mediclaim Policy being certificate no.103040243029 with the o.p. no.1 and the policy was renewed by him from 8.7.01 to 7.7.02, 8.7.02 to 7.7.03, 8.7.03 to 7.7.04, 8.7.04 to 7.7.05 without any delay or lapses. The complainant himself and his wife Manju Senapati are the insured persons and they are accordingly entitled to receive reimbursement of medical expenses.

Further case of the complainant that his wife was admitted to nursing home for her gall bladder operation and she was admitted on 20.8.03 at Microlab and was discharged from the nursing home on 24.8.03. The petitioner made several attempts for reimbursement of the claim for the medical treatment of his wife and he also made several correspondence with the o.ps. But ultimately on 5.2.06 he was informed by o.p. no.1 that the petitioner is not entitled to have any claim due to violation of conditions no.5.3 and 5.4. But no such condition has been mentioned in 5.3 and 5.4 in the policy certificate. The petitioner filed this case before the Consumer Disputes Redressal Forum, Howrah and on the point of lack of territorial jurisdiction the case was dismissed with a liberty to file the petition of complaint at the appropriate forum and finding no other alternative the petitioner has filed this case against the o.ps.

It appears on perusal of the record that even in spite of receipt of notice the o.p. no.1 did not appear but o.p. no.2 appeared and filed their w/v. So, the case is heard ex parte against o.p. no.1 and contested against o.p. no.2. O.p. no.2 has contested this case by filing a w/v stating therein that o.p. no.1 has authorized o.p. no.2 for providing mediclaim policy to the members of o.p. no.2. They have admitted the claim of he petitioner and they have stated that the same was insured for Rs.1 lakh for the petitioner and Rs.30000/- for his wife and those policies were obtained through o.p. no.2 as member.

O.p. no.2 has also stated that on receipt of the intimation the papers was submitted by the complainant, but it was found inadequate and insufficient at the initial stage. Further, on their demand additional and adequate papers/documents were filed by the complainant. They have also stated that the provisions 5.3 and 5.4 are absolutely fallacious and erroneous because no such conditions were incorporated in the insurance certificate nor any such intimation had ever been forwarded to the insured persons and if there be any such conditions the sole responsibility lies with o.p. no.1 to intimate the same to the insured person which they did not.

Decision with reasons :

The main points to be decided in this case are that whether the petitioner is entitled to get the relief as prayed for. At the very outset of our discussion we must point it out that o.p. no.2 has practically supported the claim of the complainant and repudiated/denied the allegations and contentions of the o.p. no.1. We have perused the Xerox copy of the policy, annex-A, of the complainant of Rs.1 lakh and the Xerox copy of the upto date policy, annex-B. And it also appears that insured amount of the complainant is Rs.1 lakh and his wife Manju Senapati of Rs.30000/-. We have also perused the discharge certificate of Manju Senapati showing that she was at the hospital Microlab from 20.8.03 to 24.8.03. We have also perused the letter dt.31.10.03 written by complainant to the Branch Manager of o.p. no.2 making an appeal for reimbursement of the mediclaim in respect of his wife Manju Senapati. We have also perused the letter of o.p. no.2, annex-E, wherein they have acknowledged the letter of the complainant and asked him to furnish some documents including the treatment papers and test reports etc. It is annex-G dt.5.2.05 wherein the o.p. no.1 has refused the claim of the complainant for violation of conditions 5.3 and 5.4 of the insurance policy and promptly the complainant in his letter dt.14.3.05 has refuted the allegations of the o.p. no.1 contending interalia that there was no such conditions of 5.3 and 5.4 in the insurance certificate and accordingly, the question of refusal of reimbursement of the amount of the complainant does not arise at all.

We have also perused the affidavit of examination-in-chief of the complainant and it appears to us that his evidence is satisfactorily corroborated with the recitals made out in his petition of complaint. We have also perused the BNA submitted by o.p. no.2 contents of which are in consonance with the w/v and supporting the case of the complainant he has also prayed for expunging his name. We have also perused the BNA submitted by the complainant wherein he has not only stated all about the fact of the case, but he has also mentioned all about the documents which are the corroborative piece of evidence. Therefore, considering the facts, circumstances and evidence on record we are of the candid opinion that the complainant is entitled to get a decree as prayed for against o.p. no.1.

Hence,

Ordered,

That the petition of complaint is allowed on contest against the o.p. no.2 and ex parte with costs against o.p. no.1, but as no claim is prayed against the o.p. no.2 no obligatory / mandatory order is passed against the o.p. no.2. The o.p. no.1 is directed to pay Rs.24,580.30 (Rupees twenty four thousand five hundred eighty and paise thirty) only to the complainant and compensation of Rs.3000/- (Rupees three thousand) only and litigation cost of Rs.2000/- (Rupees two thousand) only positively within thirty days from the date communication of this order, failing which it will carry interest @ 10% p.a. till full realization. Fees paid are correct.

Supply certified copy of this order to the parties on payment of prescribed fees.

Consumer Complaint No

1248 of 2009

Date of Institution

01.09.2009

Date of Decision

21.12.2009


Surinder Kaur wife of Sh. Ajit Singh resident of Village Manupur, Tehsil and Distt. Fatehgarh Sahib.

….…Complainant

V E R S U S

1. Medsave Health Care (TPA) Ltd., SCO No.121-122-123, 2nd Floor, Sec.34-A, Chandigarh-160034 through their Administrator.

2. National Insurance Co. Ltd., SCO No.121-122-123, 2nd Floor, Sec.34-A, Chandigarh-160034.

3. Gian Sagar Hospital, Ram Nagar, Banur, Tehsil Rajpura and Distt. Patiala through Medical Superintendent.

..…Opposite Parties

CORAM: SH.JAGROOP SINGH MAHAL PRESIDENT

SH.SIDDHESHWAR SHARMA MEMBER

DR.(MRS) MADHU BEHL MEMBER



Argued by: Sh. Saurabh Kaushik, Adv. for complainant.

Sh. Gaurav Bhardwaj, Adv. for OPs 1 & 2

Sh. D.D. Sharma, Adv. for OP-3.



PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

Succinctly put, the complainant took membership under ‘Bhai Ghanhya Sehat Sewa Scheme’ valid from 1.10.2008 to 30.9.2009 issued by OP-1. As per the policy the complainant was to be provided a cashless treatment in the empanelled hospital, nursing home and in case the patient chose to go to a Govt. hospital, the expenditure was to be reimbursed. She was admitted in Gian Sagar Medical College, Patiala from 20.5.2009 to 16.6.2009 and incurred expenses of about Rs.30,000/- on her medical treatment. However, she was made to clear the bills before discharge by OP-3. She requested the OP-1 to reimburse the expenses but they rejected the claim on the ground that the policy has been cancelled without any prior notice to her. When the OP-1 did not reimburse the claim despite requests she gave a legal notice dated 11.7.2009, but to no avail. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2. In their written reply OPs 1 & 2 submitted that the card issued in view of the policy was cancelled as it was found that the complainant had enrolled herself by stating her age to be 54 years whereas her age was 57 years and information regarding this was given to the quarters concerned vide letter dated 14.5.2009 and 14.7.2009 respectively and despite that the complainant got herself admitted in the OP-3 hospital. It has been denied that the answering OPs cancelled the policy of the complainant without any prior notice to her. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint has been made.

3. OP-3 in their separate written reply admitted that the complainant was admitted in their hospital and was asked to clear the bill as she was not insured under the scheme. Pleading that neither any relief has been sought against them nor any deficiency in service alleged, this OP also prayed for dismissal of the complaint.

4. Parties led evidence in support of their contentions.

5. We have heard the Learned Counsel for the parties and have also perused the record.

6. The contention of the Learned Counsel for the OP is that the complainant has mentioned her age in annexure C-1 as 54 years whereas in the photo identity card copy of which is annexure R-4, her age has been mentioned as 57 years. Before cancelling the policy the OPs did not give any opportunity of being heard to the complainant. The rules of natural justice therefore require that an opportunity of being heard should have been given to the complainant before cancelling the policy. The OPs are therefore directed to hold an enquiry and to ascertain the date of birth of the complainant and take further action only, thereafter.

7. Whether the age of the complainant was 54 or 57 years, the complainant was entitled to the reimbursement of medical expenses. Annexure C-2 contains the terms and conditions of the policy. According to para 1.1 a member is entitled to the facility till he/she reaches the age of 75 years. Admittedly the complainant was below 75 years and was entitled to the claim. The claim therefore could not be denied by the OPs on this ground.

8. It is also argued by the Learned Counsel for the OPs that the treatment was obtained from an empanelled hospital where cashless treatment was available. It is argued that the reimbursement of medical expenses could be allowed only if the treatment is obtained from the Government Hospital, as mentioned in annexure C-2 under the heading “third party administrator MedSave HealthCare (TPA) Limited cashless facility”. However there is no mention in this chapter if the cashless policy would not be available to a member getting treatment from empanelled hospital and making the payment of the bills to the said hospital. Otherwise also there is no loss to the OP-2, whether they pay the amount of the hospital, or the complainant pay to OP-3 and OP-2 reimburses the said claim to the complainant. This ground has been unnecessary introduced by the OPs for denying the claim of the complainant.

9. In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly allowed. The OPs are therefore directed to pay a sum of Rs.30,000/- alongwith costs of litigation of Rs.2,000/- within 30 days of the receipt of the copy of this order failing which they would be liable to pay the entire amount alongwith interest @12% p.a. since the filing of the present complaint i.e. 01.09.09, till the amount is actually paid to the complainant. They would be however free to ascertain the age of the complainant after giving her an opportunity of being heard.

Certified copies of this order be sent to the parties free of charge. The file be consigned.

Complt. Case No.:1247 of 2009

Date of Institution: 01.09.2009

Date of Decision : 21.12.2009

Jasveer Singh son of Gurdeep Singh, resident of Village Kotla Bajwara, P.O.Manopur, Fatehgarh Sahib

….…Complainant

V E R S U S

1] Medsave Health Care (TPA) Ltd., SCO No.121-122-123, 2nd Floor, Sector 34-A, Chandigarh 160034, through their Administrator.

2] National Insurance Company Ltd., SCO No.121-122-123, 2nd Floor, Sector 34-A, Chandigarh 160034.

3] Fortis Hospital, Phase-VIII, Mohali, through Medical Superintendent.



..…Opposite Parties



CORAM: SH.JAGROOP SINGH MAHAL PRESIDENT

SH.SIDDHESHWAR SHARMA MEMBER

DR.(MRS) MADHU BEHL MEMBER

Argued by: Sh.Saurabh Kaushik, Adv. for Sh.Arvind Kashyap, Adv. for complainant.

Sh.Gaurav Bhardwaj, Adv. for OPs No.1 & 2

Sh.Munish Kapila, Adv. for OP No.3.



PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

Briefly put, the complainant took the Membership of “Bhai Ghanhya Sehat Sewa Scheme” launched by OP No.1 whereby he was issued policy (Annexure C-1) effective from 1.10.2008 to 30.8.2009 and the insurer was OP No.2 Insurance Company. It is averred that under the said policy, the insured can avail the cashless treatment in any of the empanelled hospital and in case a patient/insured chose to go to a Govt. Hospital, the expenditure shall be reimbursed. It is also averred that the complainant being insured under the said policy, was admitted in Fortis Hospital, Mohali from 4.2.2009 to 13.2.2009 and incurred the expenditure of Rs.2 lacs on his treatment and when he was discharged from the said hospital, he was asked to clear the said bill & medical expenses instead of giving cashless treatment. Moreover, the OP No.1 rejected his claim on the ground that the policy has been cancelled without any reason. Therefore, this complaint has been instituted alleging the above act of OPs as gross deficiency in service and unfair trade practice, due to which he had to suffer mental tension, physical harassment and financial loss.

2] OP No.2 filed reply, which was also adopted by OP No.1, wherein the issuance of policy in question has been admitted. It is stated that OP No.1 was Third Party Administrator. The treatment so taken by the complainant at Fortis Hospital is also admitted. It is denied that the policy of the complainant was cancelled. However, it is submitted that the complainant knew how to avail cashless and reimbursement benefits. It is also submitted that the claim was rightly rejected on the ground that reimbursement was not allowed from the empanelled hospitals as per the terms & conditions and the complainant could have availed cashless facility from the said empanelled hospital i.e. Fortis Hospital, Mohali and no reimbursement was allowed thereafter. Only cashless treatment was available at Fortis Hospital, Mohali from where the complainant took treatment. Denying all other allegations, it is prayed that the complaint qua answering OPs be dismissed.

3] In their reply OP No.3-Fortis Hospital also admitted the treatment so given to the complainant as well as receipt of treatment charges. However, it is stated that the process of Cashless Facility commenced with mandatory tendering of I-Card issued by the beneficiary of Bhai Ghanhya Sehat Sewa Scheme (BGSSS) to the IPD reception of the Network Hospital/Nursing Home. It is also stated that the I-Card issued by OP No.1 as a TPA of National Insurance Company-OP No.2 was never tendered by the complainant or his attendant either at the time of initial admission to the emergency or within 24 hours of Hospitalization and even thereafter till the time of his final discharge on 13.2.2009 and in the absence of tendering the I-Card, as prescribed, the OP Hospital collected its charges from the complainant, which he deposited without disclosing the fact that he was beneficiary of the said scheme and therefore, there was no deficiency on the part of answering OP in charging the complainant. It is further stated that the complainant after his discharge and making all necessary payment brought to the notice of answering OP on 13.3.2009 at the time of follow up that he was a beneficiary of said Scheme and stated that he would like to claim reimbursement of his expenses from OPs No.1 & 2 and on that stage, the answering OP rendered all possible assistance to the complainant and also signed & attested the Claim Form for Bhai Ghaniya Sehat Sewa Scheme in Punjab issued by OP No.2 Insurance Company. Denying any type of deficiency on the part of OP No.3, it is prayed that the complaint qua answering OP be dismissed.

4] Parties led evidence in support of their contentions.

5] We have heard the ld.Counsel for the parties and have perused the record.

6] The Learned Counsel for the OP has argued that there is no provision under the Insurance Policy to reimburse the expenses if the treatment is obtained from the empanelled hospital. It was admitted that the Fortis hospital is on their panel and the treatment otherwise was perfectly legal and valid. The Learned Counsel further argued that reimbursement can be allowed only if the treatment is obtained from the government hospital. The Learned Counsel however could not point out any provision in the policy under which the reimbursement is to be refused if the treatment is taken from the empanelled hospital. There is nothing wrong on the part of the complainant because he had gone to the empanelled hospital and obtained the treatment therefrom. Whether the payment is made by the OP directly to the hospital or the complainant pays the money and the OPs reimburses the same, there is no loss to the OP. If this facility was not to be provided then there should have been a specific assertion in the negative under the terms and conditions of the policy but the same is missing. We are therefore of the opinion that the reimbursement could not be refused by the OP on any such ground.

7] In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly allowed. The OPs are directed to pay the reimbursement claim of Rs. 1,92,917/- to the complainant within 30 days from the receipt of the copy of this order failing which the OPs would be liable to pay the same alongwith interest @8% p.a. since the filing of the present complaint i.e.01.09.09, till the amount is actually paid to the complainant and litigation costs of Rs.5,000/-.

Certified copies of this order be sent to the parties free of charge. The file be consigned.

Consumer Complaint No
987 of 2009

Date of Institution

15.07.2009

Date of Decision
18.12.2009
Jagdish Marwaha, Advocate son of late Sh. Tirlok Chand r/o House No.478, Phase 2nd, Mohali (Pb.).

….…Complainant

V E R S U S

1. The National Insurance Co. Ltd., Regional Office, SCO No.332-334, Sector 34-A, Chandigarh, through its duly constituted Attorney Regional Manager;

2. The National Insurance Co. Ltd., Branch Office, Nangal Chowk, Chandigarh Road, Ropar (Punjab), through its Branch Manager;

3. S. Gurmail Singh, Development Officer, National Insurance Co. Ltd., r/o Kothi No.3103, Sector 71, Mohali.

..…Opposite Parties



CORAM: SH.JAGROOP SINGH MAHAL PRESIDENT

SH.SIDDHESHWAR SHARMA MEMBER

DR.(MRS) MADHU BEHL MEMBER



Argued by: Complainant in person

Sh. Rajneesh Malhotra, Adv. for OPs 1 & 2

OP-3 exparte.



PER SHRI SIDDHESHWAR SHARMA, MEMBER

Succinctly put, the complainant, who is a practicing advocate, got his 1997 model Maruti 800 AC car bearing Registration No.CH01-S-2002 insured with the OP on 25.3.2005 by assessing the market value of the said vehicle as Rs.90,000/- for which he paid Rs.2,746/- as premium. On 9.3.2006 when he parked his vehicle in the District Courts Complex the same was stolen regarding which and FIR was lodged on the same day. It has been alleged that on 13.3.2006 the OPs were informed about the theft of the car; on 20.3.2006 OP-2 sent the claim form which were completed and submitted; on 26.3.2006 OP-2 deputed Piara Singh, Investigator who collected the photograph of the key of the stolen car; on 5.6.2006 he handed over the original key of the vehicle as well as the untraceable certificate. It has been alleged that despite completing all the formalities the OPs after taking lot of time approved the claim for only Rs.79,500/- and deducted a sum of Rs.10,500/- without giving any justification therefor. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2] In their written reply the OPs admitted that the car in question of the complainant was insured for an IDV of Rs.90,000/- subject to terms and conditions of the policy. It has been specifically denied that the value of the vehicle was assessed as Rs.1,10,000/-. It has been submitted that the claim of the complainant was processed and approved for a sum of Rs.79,500/- and he was informed vide letter dated 16.7.2007, followed by reminder dated 25.7.2007, to complete the necessary formalities like transfer of the RC in the name of the company, subrogation letter and indemnity letter. It has been denied that the claim was assessed arbitrarily and rather the same was approved as per the market value after calculating the depreciation on the value of the car. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint has been made.

3] Parties led evidence in support of their contentions.

4] We have heard the complainant and ld.Counsel for OPs and have also perused the record.

5] The Maruti 800 Car of complainant bearing Regd. No.CH-01-S-2002, Model 1997 insured with OP Insurance Company from 26.3.2005 to 25.3.2006 was stolen from District Court Complex, Chandigarh on 9.3.2006. The theft of the car was report to the OP Insurance Company. FIR was also lodged in this respect and simultaneously a claim wa submitted with OPs on 20.3.2006, but the same was approved for Rs.79,500/- only instead of the IDV amount of the insured car, which was Rs.90,000/-, thus deducting of Rs.10,500/- arbitrarily & illegally.

6] OPs have not disputed that the car was insured with them for Rs.90,000/- vide Policy Ann.R-1 effective from 26.3.2005 to 25.3.2006 and the claim of the complainant was processed & approved for a sum of Rs.79,500/-, information of which was given to the complainant vide letter dated 16.7.2007 (Ann.R-18) followed by reminder dated 25.7.2007 for completing the necessary formalities like transfer of the RC in the name of the company, subrogation letter and indemnity letter.

7] However, the OPs have denied that the assessment of the loss was made arbitrarily and illegally and moresos that the value of the vehicle Rs.1,10,000/-, as alleged by the complainant in his complaint. If for a moment, the contention of the complainant it taken to be true that the market value of the car on the date of insurance was Rs.1,10,000/- and the insurance was made for Rs.90,000/- on which he had paid a premium of Rs.2492/-. Thus the amount of the premium on the insured value of Rs.1,10,000/- should have been more than the premium paid by the complainant for insuring his vehicle for Rs.90,000/-. The complainant, thus, had purposely made a profitable game of paying less premium to the OPs then to the actual premium to be paid by him as per the cost assessed by him of the car to the tune of Rs.1,10,000/-, which is bad in the eyes of law. Deriving benefits once in the amount of premium, he cannot seek for another benefit as tried by him vide Annexure C-23 claiming that the market price of the vehicle was assessed as Rs.1,10,000/-.

8] Annexure R-1 is the policy of insurance showing that the car was an ordinary one, not A.C. and its IDV was Rs.90,000/-. It shows that the complainant paid premium for insurance of the car treating its value at Rs.90,000/-. All these facts however proved to be wrong when in the letter Annexure C-11, the complainant mentioned that his car was Air Conditioned. Naturally the price of car would have been more than Rs.90,000/- and this fact was mentioned by the complainant himself in his notice Annexure C-23 that the value of the car at the time of insurance was Rs.1,10,000/-. In para 1 of the complaint also the complainant has mentioned that the market value of his A.C, Maruti 800 Car was Rs.1,10,000/-. It shows that the complainant got insured the car worth Rs.1,10,000/- by paying premium of Rs.90,000/- only. The Learned Counsel for the OP has argued that it is a case of under evaluation and they are entitled to deduct a proportionate amount, out of the claim amount of Rs.90,000/- due to which the amount of Rs.79,500/- only was payable. The complainant however has not been able to prove that the value of his car was Rs.1,10,000/-. Even the insurance policy belies his claim. We therefore do not agree to the contention of the complainant that the value of his car was Rs.1,10,000/- and therefore it cannot be said to be a case of under insurance. Consequently the OPs are not entitled to deduct any such amount from the insurable amount of Rs.90,000/-.

9] The question is whether the complainant is entitled to receive another amount of Rs.10,500/- on his stolen car or not. Admittedly, the car was insured for IDV of Rs.90,000/- and the premium paid thereof was Rs.2492/- and the period insured was from 26.3.2005 to 25.3.2006. The said car was stolen on 9.3.2006 from District Court Complex, Chandigarh, which clearly proves that the car had run for about 11 months & 14 days. Certainly, thus the value of the car would have further depreciated from the date on which it was insured for Rs.90,000/- i.e. from 26.3.2005 upto 9.3.2006, the date on which it was stolen. As per the terms & conditions of the insurance policy i.e. Annexure X (now marked by us) shows that 10% depreciation should have been made on the IDV value of the car in question, which was Rs.90,000/- on the date of insurance and as such Rs.9000/- should have been deducted from the said IDV value of the car by the OPs while deciding the claim of the complainant. However, they just approved the claim for Rs.79,500/-, which in the above facts & circumstances, is held to be unjustified. In our opinion the complainant is entitled to get Rs.81,000/- (Rs.90,000 - Rs.9,000/- (10%) = Rs.,81,000/-).

10] As per Annexure C-8 the OP asked the complainant to produce untraceable certificate issued by the police authority and keys of the vehicle. Since the untraceable report was not available the same could not be produced. The complainant was then asked vide Annexure C-11 to produce NCRB report also. The untraceable report Annexure C-13 is dated 9.09.06 and the NCRB report is Annexure C-14 dated 11.08.06. Since the vehicle has not been recovered and if the claim amount is to be paid to the complainant, the vehicle is to be transferred in favour of the OP and to issue letter of subrogation and letter of indemnity on a stamp paper worth Rs.3/-. The other requirements for payment of the claim amount were told to the complainant vide Annexure C-22 dated 16.07.07. Instead of complying with the requirements the complainant shot the letter Annexure C-23 alleging that the market price of his vehicle was Rs.1,10,000/- which we have already held to be not tenable. The OP has produced the letters Annexure R-4 to R-18, R-20 and R-21 asking the complainant to comply with the requirements for disbursing the claim amount of Rs.79,500/- to him, but the complainant did not comply with the same. Needless to mention that these are essential requirements for disbursement of amount of Rs.79,500/-.

11] In view of the above discussion, we are of the opinion that the present complaint succeeds. The same is accordingly allowed. The OPs are directed to pay to the complainant a sum of Rs.81,000/- (minus any such amount of Rs.79,500/- if paid to the complainant) and Rs.550/- towards costs of litigation within 30 days from the date on which the complainant complies with the requirements as asked for vide various letters mentioned above, written by the OP, to the complainant. If the amount is not paid within the said period the complainant would be entitled to interest @9% p.a. on the amount since the filing of the present complaint i.e.15.07.2009, till the amount is actually paid to the complainant.

Certified copies of this order be sent to the parties free of charge. The file be consigned.

Consumer Complaint No

1096 of 2009

Date of Institution
4.08.09

Date of Decision
17.12.09
1) Vinod Mittal M.D M/s Chandigarh Flour Mills Pvt. Ltd. a duly Registered Company having its office at Plot.128/1 Indl. Area, Phase I, U.T, Chandigarh.
2) M/s Chandigarh Flour Mills Pvt. Ltd. a duly Registered Company being represented through its M.D. Sh. Vinod Mittal, having its office at Plot.128/1 Indl. Area, Phase I, U.T, Chandigarh.

…..Complainants

V E R S U S

1) M/s National Insurance Company Ltd. through its Managing Director Office at 3, Middleton Street Kolkata, 700071.



2) Regional Manager, National Insurance Company Ltd., office at SCO No. 337-340, Sector 35, U.T, Chandigarh.



……Opposite Parties



CORAM: SH.JAGROOP SINGH MAHAL PRESIDENT

SH.SIDDHESHWAR SHARMA MEMBER

DR.(MRS) MADHU BEHL MEMBER



Argued by: Sh.Harish Bansal, Adv. for complainant.

Sh.Jagtar Kureel, Adv. for OPs



PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

Succinctly put, the complainant has a business of manufacturing wheat products. The complainant got their stock insured to the extent of Rs.70 lacs from OPs vide insurance policy valid from 8.05.08 upto 7.05.09. That on 4.08.08 due to heavy rain in Chandigarh the water entered into the premises of the complainant and there occurred a severe loss to the stock of the complainant lying at the Flour Mill. The complainant stated that on the very next day the loss caused to the stocks in the Flour Mill was informed to the OPs. Thereafter, OPs sent a surveyor to assess the loss caused to the stock, in the Mill premises. As per the complainant the stock lying and stored in the Mill premises was valued at Rs.35.79 lacs against the insured sum of Rs. 70.00 lacs and the loss assessed by the surveyor was to the extent of approximately Rs. 2.45 lacs after adjustment of salvage. The complainant further mentioned that during the procurement season of wheat the complainant took separate Godown i.e Godown no.34, Indl. Area Phase I, Chandigarh on rent on temporary basis upto 30.08.08, for storage of the stocks against taking different/separate polices/declaration polices for which different premium for different policies has been paid. As per the complainant these two places were different and the insured places were also different but the surveyor while assessing the loss clubbed the stocks lying at two different places but the information of loss of stocks due to rain to the OPs was given for plot no. 128/1, Phase I, Chandigarh only. The complainant further stated that on 31.03.09, after repeated reminders, for 7 months, he received a cheque of low value i.e. Rs.1,04,230/- from the OPs against the assessed loss of Rs.2.45 lacs(after adjusting salvage). The complainant approached the OPs and came to know that the surveyor has deducted some amount on account of under insurance in his report and to clarify this the surveyor clubbed the stocks of Godown no.34 with the stock of insured place i.e. Plot no. 128/1 by which the value of stock after clubbing came to Rs. 120 lacs. The complainant alleged that the OPs have intentionally paid the less amount of Rs. 1,40,770/- (i.e. Rs. 2,45,000/- - Rs. 1,04,230/-). Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice and prayed that OPs be directed to pay the balance amount costs of litigation and compensation towards mental agony and harassment.

2. In their written reply both the OPs have admitted the factual matrix of the case. OPs stated that the loss of the stocks due to heavy rain was intimated to the OPs by complainant no.2 and not by complainant no. 1. The insurance policy was given to complainant no. 2 and no insurance policy was given in the name of complainant no.1 and further pleaded for dismissal of the complaint of complainant no.1. OPs admitted that the surveyor was shown the premises of the loss but denied that the surveyor assessed the loss of Rs.2.45 lacs and stated that the surveyor assessed the liability of the loss of Rs.1,09,264/- but after finding that the liability was under insurance it was worked out accordingly. OPs further stated that complainant no. 2 has not taken separate insurance for the stock lying at plot no.128/1 and plot no.34, hence, all the stocks lying at both the plots were considered to be one for taking the total value. OPs stated that it was a case of under insurance as the insurance was availed for Rs.70 lacs only whereas, as per the trading account provided by the complainant, the value of the stocks as per bank was Rs.1,34,89,421/- and the stock of both places were common and were moved from one place to another. OPs further stated that they had already paid a sum of Rs.1,04,230/- to the complainant no. 2, for which he was entitled after adjusting the premium for reinstatement of the sum assured after the assessment of loss as assessed by the surveyor. OPs further added that before settlement of the dispute the complainant no.2 was informed through letter dated 26.03.09, that his claim has been approved for Rs.1,09,264/- as a full and final payment towards the loss. In response to that the complainant sent discharge voucher without any protest and of its own free will. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint has been made.

3. Parties led evidence in support of their contentions.

4. We have heard the parties and have also perused the record.

5. The entire dispute has arisen due to the reason that the OPs have clubbed the stocks lying at the mill situated at 128/1, Industrial Area, Phase 1, Chandigarh and the Godown situated at Plot no. 34, Industrial Area, Phase 1, Chandigarh. Needless to mention that the two places are distinct in identity and far apart from each other. These are being insured separately. Annexure A-3 is the Insurance Policy showing that the stocks worth Rs.70 lacs lying at the floor mill namely 128/1, Industrial Area, Phase 1, Chandigarh, alone was insured with the OP. Annexure–4 shows the value of the stocks on 4.08.08 to be Rs.35.79 lacs. Annexure A-5 is the stocks statement showing that the total stocks lying at the floor mill was Rs.47.59 lacs. Earlier the stocks lying in the Godown at Plot no. 34, Industrial Area, Phase 1, Chandigarh was also insured for the period from 25.05.07 to 24.05.08. The complainant has alleged that the stocks lying at the said place was valued Rs.85.40 lacs and the same had been insured for Rs.1,55,00,000/-. The OPs therefore went wrong in clubbing the two stocks which were lying at different places and were being insured separately though during the period of the present insurance the stocks lying at the Godown had not been insured. The OPs have not produced any evidence to suggest if they had insured the stocks lying at the Godown also. Had it been the case then we could say that the value of the stocks lying at the floor mill and the Godown was more than Rs. 70 lacs and therefore it could be a case of under insurance, but it is not so.

6. The Learned Counsel for the OP has relied upon the report Annexure R-3 of the surveyor vide which there was only “some apprehension” that the insured have got both the locations covered under a single policy but apart from the apprehension there is no evidence or proof to that effect. It was specifically admitted in annexure R-3 that stocks worth Rs.42.59 lacs were lying at their premises at plot no. 128/1, Industrial Area, Phase 1, Chandigarh and the remaining stocks worth Rs.85.40 were lying at the Godown in Plot no. 34 Industrial Area, Phase 1, Chandigarh. The OPs cannot go beyond the terms of the policy nor could the complainant claim damages from the OPs, had the stocks lying at the Godown were damaged.

7. We are therefore of the opinion that the apprehension shown by the surveyor in annexure R-3 which was issued long after he submitted the survey report annexure R-2, cannot be accepted as correct.

8. The survey report annexure R-2 shows that the maximum liability of the insurer was Rs.2,10,569. The OPs have paid the complainant a sum of Rs.1,09,264/-. The contention of the OPs that this amount was received by the complainant in full and final settlement of his own claim is not proved by any document. Annexure R-1 is the receipt issued by the complainant but this fact is missing therefrom. The mere receipt of the part payment would not disentitle the complainant, to claim the remaining amount from the OPs.

9. In view of the above discussion, we are of the opinion that the present compliant succeeds. The same is accordingly allowed. The OPs are directed to pay to the complainant a sum of Rs.1,01,305/- within 30 days along with interest @12% p.a. with effect from 3.11.08 (one month after the report annexure R-2) and Rs. 5,000/- as costs of litigation till the amount is paid to the complainant alongwith litigation costs of Rs.5,000/-

Certified copies of this order be sent to the parties free of charge. The file be consigned.

Consumer Complaint No

1096 of 2009

Date of Institution


4.08.09

Date of Decision


17.12.09



1) Vinod Mittal M.D M/s Chandigarh Flour Mills Pvt. Ltd. a duly Registered Company having its office at Plot.128/1 Indl. Area, Phase I, U.T, Chandigarh.



2) M/s Chandigarh Flour Mills Pvt. Ltd. a duly Registered Company being represented through its M.D. Sh. Vinod Mittal, having its office at Plot.128/1 Indl. Area, Phase I, U.T, Chandigarh.



…..Complainants

V E R S U S

1) M/s National Insurance Company Ltd. through its Managing Director Office at 3, Middleton Street Kolkata, 700071.



2) Regional Manager, National Insurance Company Ltd., office at SCO No. 337-340, Sector 35, U.T, Chandigarh.



……Opposite Parties



CORAM: SH.JAGROOP SINGH MAHAL PRESIDENT

SH.SIDDHESHWAR SHARMA MEMBER

DR.(MRS) MADHU BEHL MEMBER



Argued by: Sh.Harish Bansal, Adv. for complainant.

Sh.Jagtar Kureel, Adv. for OPs



PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

Succinctly put, the complainant has a business of manufacturing wheat products. The complainant got their stock insured to the extent of Rs.70 lacs from OPs vide insurance policy valid from 8.05.08 upto 7.05.09. That on 4.08.08 due to heavy rain in Chandigarh the water entered into the premises of the complainant and there occurred a severe loss to the stock of the complainant lying at the Flour Mill. The complainant stated that on the very next day the loss caused to the stocks in the Flour Mill was informed to the OPs. Thereafter, OPs sent a surveyor to assess the loss caused to the stock, in the Mill premises. As per the complainant the stock lying and stored in the Mill premises was valued at Rs.35.79 lacs against the insured sum of Rs. 70.00 lacs and the loss assessed by the surveyor was to the extent of approximately Rs. 2.45 lacs after adjustment of salvage. The complainant further mentioned that during the procurement season of wheat the complainant took separate Godown i.e Godown no.34, Indl. Area Phase I, Chandigarh on rent on temporary basis upto 30.08.08, for storage of the stocks against taking different/separate polices/declaration polices for which different premium for different policies has been paid. As per the complainant these two places were different and the insured places were also different but the surveyor while assessing the loss clubbed the stocks lying at two different places but the information of loss of stocks due to rain to the OPs was given for plot no. 128/1, Phase I, Chandigarh only. The complainant further stated that on 31.03.09, after repeated reminders, for 7 months, he received a cheque of low value i.e. Rs.1,04,230/- from the OPs against the assessed loss of Rs.2.45 lacs(after adjusting salvage). The complainant approached the OPs and came to know that the surveyor has deducted some amount on account of under insurance in his report and to clarify this the surveyor clubbed the stocks of Godown no.34 with the stock of insured place i.e. Plot no. 128/1 by which the value of stock after clubbing came to Rs. 120 lacs. The complainant alleged that the OPs have intentionally paid the less amount of Rs. 1,40,770/- (i.e. Rs. 2,45,000/- - Rs. 1,04,230/-). Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice and prayed that OPs be directed to pay the balance amount costs of litigation and compensation towards mental agony and harassment.

2. In their written reply both the OPs have admitted the factual matrix of the case. OPs stated that the loss of the stocks due to heavy rain was intimated to the OPs by complainant no.2 and not by complainant no. 1. The insurance policy was given to complainant no. 2 and no insurance policy was given in the name of complainant no.1 and further pleaded for dismissal of the complaint of complainant no.1. OPs admitted that the surveyor was shown the premises of the loss but denied that the surveyor assessed the loss of Rs.2.45 lacs and stated that the surveyor assessed the liability of the loss of Rs.1,09,264/- but after finding that the liability was under insurance it was worked out accordingly. OPs further stated that complainant no. 2 has not taken separate insurance for the stock lying at plot no.128/1 and plot no.34, hence, all the stocks lying at both the plots were considered to be one for taking the total value. OPs stated that it was a case of under insurance as the insurance was availed for Rs.70 lacs only whereas, as per the trading account provided by the complainant, the value of the stocks as per bank was Rs.1,34,89,421/- and the stock of both places were common and were moved from one place to another. OPs further stated that they had already paid a sum of Rs.1,04,230/- to the complainant no. 2, for which he was entitled after adjusting the premium for reinstatement of the sum assured after the assessment of loss as assessed by the surveyor. OPs further added that before settlement of the dispute the complainant no.2 was informed through letter dated 26.03.09, that his claim has been approved for Rs.1,09,264/- as a full and final payment towards the loss. In response to that the complainant sent discharge voucher without any protest and of its own free will. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint has been made.

3. Parties led evidence in support of their contentions.

4. We have heard the parties and have also perused the record.

5. The entire dispute has arisen due to the reason that the OPs have clubbed the stocks lying at the mill situated at 128/1, Industrial Area, Phase 1, Chandigarh and the Godown situated at Plot no. 34, Industrial Area, Phase 1, Chandigarh. Needless to mention that the two places are distinct in identity and far apart from each other. These are being insured separately. Annexure A-3 is the Insurance Policy showing that the stocks worth Rs.70 lacs lying at the floor mill namely 128/1, Industrial Area, Phase 1, Chandigarh, alone was insured with the OP. Annexure–4 shows the value of the stocks on 4.08.08 to be Rs.35.79 lacs. Annexure A-5 is the stocks statement showing that the total stocks lying at the floor mill was Rs.47.59 lacs. Earlier the stocks lying in the Godown at Plot no. 34, Industrial Area, Phase 1, Chandigarh was also insured for the period from 25.05.07 to 24.05.08. The complainant has alleged that the stocks lying at the said place was valued Rs.85.40 lacs and the same had been insured for Rs.1,55,00,000/-. The OPs therefore went wrong in clubbing the two stocks which were lying at different places and were being insured separately though during the period of the present insurance the stocks lying at the Godown had not been insured. The OPs have not produced any evidence to suggest if they had insured the stocks lying at the Godown also. Had it been the case then we could say that the value of the stocks lying at the floor mill and the Godown was more than Rs. 70 lacs and therefore it could be a case of under insurance, but it is not so.

6. The Learned Counsel for the OP has relied upon the report Annexure R-3 of the surveyor vide which there was only “some apprehension” that the insured have got both the locations covered under a single policy but apart from the apprehension there is no evidence or proof to that effect. It was specifically admitted in annexure R-3 that stocks worth Rs.42.59 lacs were lying at their premises at plot no. 128/1, Industrial Area, Phase 1, Chandigarh and the remaining stocks worth Rs.85.40 were lying at the Godown in Plot no. 34 Industrial Area, Phase 1, Chandigarh. The OPs cannot go beyond the terms of the policy nor could the complainant claim damages from the OPs, had the stocks lying at the Godown were damaged.

7. We are therefore of the opinion that the apprehension shown by the surveyor in annexure R-3 which was issued long after he submitted the survey report annexure R-2, cannot be accepted as correct.

8. The survey report annexure R-2 shows that the maximum liability of the insurer was Rs.2,10,569. The OPs have paid the complainant a sum of Rs.1,09,264/-. The contention of the OPs that this amount was received by the complainant in full and final settlement of his own claim is not proved by any document. Annexure R-1 is the receipt issued by the complainant but this fact is missing therefrom. The mere receipt of the part payment would not disentitle the complainant, to claim the remaining amount from the OPs.

9. In view of the above discussion, we are of the opinion that the present compliant succeeds. The same is accordingly allowed. The OPs are directed to pay to the complainant a sum of Rs.1,01,305/- within 30 days along with interest @12% p.a. with effect from 3.11.08 (one month after the report annexure R-2) and Rs. 5,000/- as costs of litigation till the amount is paid to the complainant alongwith litigation costs of Rs.5,000/-

Certified copies of this order be sent to the parties free of charge. The file be consigned.

Case No.135/06

1. Sh.Deepak Bajaj

2. Ms.Ria Bajaj D/O Sh.Deepak Bajaj

Both residents of House No.H-98, Lajpat Nagar-I, New Delhi – 110024.

………Complainants

Versus

1. National Insurance Company Ltd., B-18, Community Centre, Janakpuri, New Delhi – 58.

2. M/s.Medsave HealthCare, New Delhi, F-701 A, Lado Sarai, New Delhi – 30.

……..Opposite Parties



CORAM : J.P. SHARMA : PRESIDENT

: S.M. MAZUMDAR : MEMBER

: DR. PREMLATA : MEMBER



O R D E R

J.P. SHARMA (PRESIDENT) :

Briefly stated the facts of this case are that complainant No.1 was holding Mediclaim Policy ever since 1999 for himself, his wife Smt.Rajni Bajaj, his daughter Ria Bajaj and his son Sh.Akshay Bajaj. Complainant No.1 and the aforesaid family members were insured with OP-1 during the period 25.08.2003 to 24.08.2004. According to the complainant in Feb., 2004, Ms.Ria Bajaj started having complaint of watering in her eyes, intolerance of light, headache and inability to tolerate spectacles and since the said problems were increasing day by day, Ms.Ria Bajaj got herself examined on 14.08.2004 by Eye Specialist in Shroff Eye Centre, Kailash Colony, New Delhi. According to the complainant, she was advised to undergo Lasik surgery in both her eyes as prolonging the operation may cause disablement of her vision. Accordingly, Ms.Ria Bajaj got herself admitted in Shroff Eye Centre on 23.08.2004 from where she was discharged on 24.08.2004 and during this period Lasik surgery was done for both her eyes. The treatment and medicine expenditure was to the tune of Rs.38,539.20p. Complainant No.1 though requested OP-1 for cashless facility but his request was declined on the plea that reimbursement would be considered only after the necessary surgery has been done. Complainant No.1 thereafter, submitted the claim form on 06.09.2004 through OP-2 alongwith all the necessary information and documents but the complainant’s claim was repudiated on the ground that the case is not payable as it was a Cosmetic Surgery and falls under one of the Exclusion Clauses of Insurance Policy. Aggrieved by the repudiation of their claim, complainants NO.1 and 2 have approached this Forum with the present complaint.



In their written statement, OPs. pleaded that there was no deficiency in service on their part as the claim under the mediclaim policy was “inadmissible” as the same was a ‘Cosmetic Surgery.’ It was further claimed that the claim was inadmissible as per advice given by OP-2 to OP-1 in as much as Cosmetic Surgery falls within the Exclusion Clause 4.5 of the terms and conditions of the Insurance Policy.



Parties filed affidavits in support of their rival contentions.



We have heard Sh.Jasbir Tyagi, Ld. Counsel for complainant, have gone through the entire material on record and have considered his relevant contentions. None appeared for OPs. during arguments.



As already pointed out above, the plea of OPs in their written arguments has been that the claim was inadmissible as per the opinion received from TPA M/s.Medsave HealthCare, New Delhi who declared the surgery undergone by complainant No.2 as Cosmetic Surgery. OPs. for repudiation of complainant’s claim have relied upon the Exclusion Clause 4.5 of the terms and conditions of the Insurance Policy which stipulates as under :-

“4. EXCLUSIONS

4.0 The Company shall not be liable to make any Payment under this policy in respect of any expenses whatsoever incurred by any insured Person in connection with or in respect of :

4.1 ………………………………………………….

4.2 ………………………………………………….

4.3 ………………………………………………….

4.4 …………………………………………………..

4.5 Circumcision unless necessary for treatment of a disease not excluded hereunder or as may be necessitated due to an accident, vaccination or inoculation or change of life or cosmetic or aesthetic treatment of any description, plastic surgery other than as may be necessitated due to an accident or as a part of any illness.”



We, however, do not find any merit in the submission of OPs. that complainant No.2 had undergone Cosmetic Surgery for her eyes in view of certificate dated 03.09.2004 issued by Shroff Eye Centre which reads as under :-

“This is to certify that Ms.Ria Bajaj (SEC No.K60028) is under our care. She visited at our centre on 14.08.2004 with complaints of intolerance to glasses and contact lenses due to contact lens induced giant papillary conjunctivitis & a contact dermatitis on the side of her face due to spectacle frames in both eyes. She was advised lasik surgery for hyperopia and hyperopic astigmatism in both eyes.



She underwent lasik surgery in both eyes on 23.08.2004. She was admitted on 23.08.2004 and discharged on 24.08.2004.”


Complainants in support of his plea that their claim was admissible also relied upon the Certificate issued by Shroff Eye Centre on 24.09.2004 which reads as under :

“This is in continuation of our previous certificate dated 03.09.2004 regarding Ms.Ria Bajaj (SEC No.K60028). As she cannot tolerate glasses or contact lenses and owing to her higher side of her refractive status. Her unaided visual acuity would be disabling. Hence, in order to have functional vision she was advised laser refractive surgery.”



A perusal of both these certificates issued by Shroff Eye Centre clearly establish that the surgery was undergone by Ms.Ria Bajaj as she could not tolerate the glasses or contact lenses owing to higher side of her refractive status. If she had undergone Lasik surgery to save her eye sight, such lasik surgery can by no stretch of imagination be called a Cosmetic Surgery. OPs.’ repudiation of complainant’s claim on the basis of Exclusion clause 4.5 of the terms and conditions of the insurance policy therefore, makes out a case of deficiency in service on their part.



As a result of what has been discussed above, we direct OP-1 to reimburse to complainant No.1 the expenditure incurred for complainant NO.2 for lasik surgery to the tune of Rs.38,539.20p. In addition to this amount, OP-1 shall also have to pay to the complainant a sum of Rs.7,000/- towards compensation and cost for the harassment caused to the complainant on account of deficiency in service on their part.



OP-1 shall comply with the above mentioned order within 30 days of its receipt failing which proceedings u/s 25/27 of Consumer Protection Act may be initiated against them.



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

Case No.118/08

Ashok Kumar Malik, D-1/24, Krishna Vihar, Budh Vihar, Delhi – 41.

…..Complainant

Versus

National Insurance Company Ltd., Divisional Office-VIII, IIIrd floor, United India Building, Sir P.M. Road, P.B. No.211, Mumbai 400001.

2nd Address : 201 Harsha House Villan Complex, Karampura, New Delhi – 110015.

……..Opposite Parties



CORAM : J.P. SHARMA : PRESIDENT

: S.M. MAZUMDAR : MEMBER

: DR. PREMLATA : MEMBER

O R D E R

J.P. SHARMA (PRESIDENT) :

Brief facts of this case are that complainant procured insurance policy on 14.12.2006 for his Tata Indica car bearing Regn. No.HR-63T-4531 for the period 22.12.2006 to 21.12.2007 from authorized agent of OP insurance company. This vehicle met with an accident on 05.04.2007 and FIR No.209/07 was regd. at P.S. Keshav Puram, Delhi u/s 279/337 IPC. Complainant sent necessary intimation about the insured vehicle having been involved in the accident to OP insurance company and made repeated requests to OP to assess the damage suffered by the vehicle but no surveyor was appointed by OP and on account of total inaction on the part of OP, complainant has approached this Forum with the present complaint.


The plea taken by OP insurance company in their written statement in defence has been that this Forum has no territorial jurisdiction to entertain and adjudicate the present complaint as the insurance policy had been issued by their Maharashtra Office and therefore Delhi branch office of National Insurance Company is under no obligation to deal with the claim of the complainant.

We have heard Sh.Manoj Kumar, Ld. Counsel for complainant, have gone through the material on record and have considered their relevant contentions.

OP in their written statement filed through their D.R.O.-I, Jeevan Bharati, Tower-II, 4th Floor, 124, Cannaught Circus, New Delhi - 110001 have clearly admitted that complainant has filed the claim against the policy issued by Maharashtra, Mumbai office of National Insurance Company but pleaded that he cannot maintain this complaint in the present District Forum. Admittedly, complainant has impleaded Mumbai branch of National Insurance Company as well as its Karampura branch, Moti Nagar, New Delhi as OPs. Sec.11(2)(b) provides that the District Forum where OP has a branch office can admit a complaint for adjudication of complainant’s claim. The provisions of Sec.11(2)(b) reads as :

“(a)……………………………..

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or (carry on business or have a branch office), or personally work for gain, as the case may be, acquiesce in such institution; or

(c) ………………………………………………….”
It has not been denied on behalf of National Insurance Company that they have their branch office at Karampura, Moti Nagar, New Delhi and therefore, under the provisions of Sec.11(2)(b) of C.P. Act, 1986 this Consumer Forum has territorial jurisdiction to admit and enquire into this complaint. It is evident from the pleas raised by OP that after submission of his claim by the complainant, OP have not appointed any surveyor to assess the loss suffered due to damage to Tata Indica car Bearing No.HR-63T-4531 in the road accident. OP, therefore, are held deficient in providing service to the complainant.

In the facts and circumstances of this case, we direct Karampura branch office of National Insurance Company to appoint a surveyor to assess the loss suffered by the complainant due to damage of Tata Indica car bearing No.HR-63T-4531 within a month’s time from the date of receipt of a copy of this order and thereafter complainant may file his claim with OP insurance company for settlement. OP shall have to settle the claim of the complainant within a period of three months from the date of receipt of complainant’s claim and intimate the complainant accordingly. On account of deficiency in service on the part of Karampura office of National Insurance Company the branch office is directed to pay to the complainant a sum of Rs.10,000/- towards compensation and cost of litigation.


OP shall comply with the above mentioned order within 30 days of its receipt failing which proceedings u/s 25/27 of Consumer Protection Act may be initiated against them.


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

Case No.352/07

Shobha Devi, Sole Proprietor of M/s.Balaji Communications, 396 Behra Enclave, Paschim Vihar, Delhi.

……Complainant

Versus

National Insurance Company Ltd., Direct Agent Branch 2 & 3 Central Market, First floor, West Punjabi Bagh, New Delhi – 26.

……..Opposite Parties



CORAM : J.P. SHARMA : PRESIDENT

: S.M. MAZUMDAR : MEMBER

: DR. PREMLATA : MEMBER



O R D E R

J.P. SHARMA (PRESIDENT) :

In brief, complainant’s case is that she took insurance cover for Rs.14.00 lacs from OP insurance company for the period 26.12.2005 to 25.12.2006. The insurance policy was taken for covering the risk of theft of goods lying in the show room of the complainant. The stock in the show room of the complainant consisted of computer sets, mobile phones etc. On 09.07.2006, the theft of goods lying in the show room took place and police was informed accordingly. Complainant thereafter, lodged insurance claim for loss of goods worth Rs.7.00 lacs to OP insurance company. However, OP did not settle the claim of the complainant and therefore, complainant had to serve OP with legal notice dated 20.03.2007. Thereafter, certain correspondence took place between the parties. Ultimately, OP repudiated the claim of the complainant vide letter dated 09.03.2007. The claim of the complainant was repudiated by OP on the following grounds :

“that your claim has been repudiated by the Competent Authority. As per exclusion clause No.(II) of Burglary Policy which states that the ins. Co. is not liable in respect of loss where any inmate or member of the insured’s household or his business staff or any other person lawfully in the premises, in the business is concerned in the actual theft or damage to any of the articles or premises or where such loss or damage has been seen expedited or any way assisted or brought about by any such person or persons”.



OP insurance company in their reply in terms of the ground of repudiation pleaded that complainant had taken a Burglary Insurance Policy, that the theft is stated to have taken place in the show room of the complainant on the night between 09.07.2006 to 10.07.2006 for which FIR No.684/06 dated 10.07.2006 was got regd. u/s 381 with the police. OP’s defence is that even according to the complainant’s version to the police, one Sh.Ashok Kumar who had been running the insured’s premises had appointed a watchman/employee namely Raju as a Care taker staff to look after the said premises from 8PM to 8AM on daily basis, that on 09.07.06 the watchman Raju was on duty while in the morning of 10.07.2006 it was found that the main shutter was broken and said Raju had committed the theft of certain mobile and other connected items and that police also arrested Raju and prepared a criminal case against him for which the charge sheet was prepared. On the basis of the above version of the complainant before the police, OP repudiated the complainant’s claim as per exclusion clause (II) of Burglary Policy which has been reproduced in para 1 of this order above. According to OP, the claim of the complainant was rightly repudiated and that complaint was liable to be dismissed.



In the rejoinder, complainant controverted the averments of OP and reiterated her case as set out in the complaint.



We have heard Sh.V.K. Bajaj – Ld. Counsel for complainant, Sh.Prabhat Kumar – Ld. Proxy counsel for Sh.Abhishek Kumar – advocate for OP, have gone through the material on record and have considered their relevant contentions.



As is evident from the pleadings of the parties referred to in brief above, complainant’s claim had been repudiated on the basis of alleged version of the complainant before the police that one Sh.Raju – employed by him was involved in the theft of goods lying in the show room of the complainant. Since, as per exclusion clause (II) of Burglary Policy, OP were not liable to indemnify the goods stolen by the insured’s household, inmate member of his family or his business staff or any other person lawfully in the premises, according to OP the claim of the complainant has been rightly repudiated. However, on the basis of the material available on record, we are not inclined to accept the above plea of OP for repudiation of the complainant’s claim for the simple reason that after investigation of the case against Raju stated to be watchman of the complainant, he was not found to be involved in the alleged theft. During enquiry proceedings the report of the investigation officer of case FIR No.684/06 was obtained wherein the investigation officer has clearly mentioned that no recovery of goods could be affected from Raju. Further no eye witness to the theft was available and further the finger prints/chance prints collected by the police from the place of actual theft did not tally with the finger prints of Raju and so police after investigation submitted the untrace report for approval of the concerned Metropolitan Magistrate. Sh.Rakesh Kumar – Ld. Metropolitan Magistrate vide orders dated 21.08.08 accepted the police report to which complainant had also no objection and discharged the accused Raju alias Harinder. The orders dated 21.08.08 of Ld. M.M. read as under :-

“21.08.2008

Present : Ld. APP for the State.

IO HC Hansraj in person alongwith case file.

Accused Harender @ Raju in person.

Complainant Ashok Kumar in person with counsel.



Complainant has no objecting regarding the discharge application of the accused who was the employee/servant of the complainant.

Heard. File perused.

Keeping in view the report submitted by the IO and fact that no recovery has been effected from the accused Harender @ Raju and chance print/finger print has not been tallied/matched with the FSL report. Application is allowed. Accused Harender @ Raju is discharged.”



Since the alleged suspect in the theft i.e., Raju – watchman of the complainant was not found involved , OP insurance company cannot escape their liability under the exclusion clause II of Burglary Policy simply because complainant initially suspected his watchman Raju to be involved in the theft case. It is important to note that Raju was discharged only after complainant also conceded his non-involvement in the alleged offence of theft and so repudiation of complainant’s claim by OP insurance company in the facts and circumstances of this case amounts to deficiency in service on their part. A copy of the survey report is available on record according to which the value of allegedly burgled stock was assessed by the surveyor to the tune of Rs.2,58,143/-.



We, therefore, direct OP insurance company to pay to the complainant the insurance amount of Rs.2,58,143/- and also pay him an amount of Rs.7,000/- towards compensation and cost for the harassment caused to him on account of deficiency in service on their part.



OP shall comply with the above mentioned order within 30 days of its receipt failing which proceedings u/s 25/27 of Consumer Protection Act may be initiated against them.



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

Case No.197/04

Shobha Rani, Proprietor, M/s.Hearing House, D-107, South Ganesh Nagar, Delhi – 92.

……Complainant

Versus

National Insurance Co. Ltd., Bldg. No.s 2 & 3, Central Market, West Punjabi Bagh, New Delhi – 26.

……..Opposite Parties



CORAM : J.P. SHARMA : PRESIDENT

: S.M. MAZUMDAR : MEMBER

: DR. PREMLATA : MEMBER



O R D E R

J.P. SHARMA (PRESIDENT) :

In brief, complainant’s case is that she is the sole proprietor of M/s.Hearing House located at 39-40, 2nd floor, Vishal Market, Chandni Chowk, Delhi – 6, that she was carrying on the business of sale and purchase of photographic material including film, paper etc., that for the stocks lying in the shop she obtained an insurance policy against burglary and fire from OP insurance company for Rs.20.00 lacs, that fire broke out in Vishal Market on 17.05.1995 in which lot of shops were gutted including her shop, that the entire stock worth Rs.20.00 lacs lying in her shop along with other valuables, records etc. were destroyed, that she raised a loan for running the above business from Punjab National Bank, Narayana branch, that on her having lodged the claim with OP insurance company for Rs.20.00 lacs the loss of stock was assessed on the basis of stock statement prepared by Punjab National Bank and that photographic material and films which were rendered useless were not taken into consideration by the surveyor which now have merely scrap value, that the surveyor valued her loss at Rs.14,10,407/-, that she was offered an amount of Rs.5,46,000/- by OP insurance company which was falsely stated to be in part settlement of her claim, that she was asked to sign a receipt for the amount of Rs.5,46,000/- on 15.09.1995 but the officials of OP insurance company maliciously, subsequently inscribed the words “full and final settlement” on the above receipt signed by her. The grievance of the complainant is that she did not sign the receipt for Rs.5,46,000/- in full and final settlement of her claim but OP obtained her signatures thereon by misleading and thereafter, added the words “full and final settlement” and hence, this complaint has been filed against OP insurance company for directions to OP to pay the balance amount of Rs.8,64,407/- in terms of the surveyor’s report together with compensation and cost.



Earlier vide orders dated 10.03.2004, this complaint was dismissed by this District Forum on the ground that services of OP were availed for commercial purpose and so the case cannot be adjudicated upon by the Consumer Forum. Complainant preferred an Appeal and Hon’ble State Commission set aside the above finding of the District Forum and remanded back the case to this Forum for deciding it afresh on merits.



After the case was remanded back by Hon’ble State Commission notice of complaint was issued to OP insurance company who raised preliminary objection for dismissal of the complaint on the ground of resjudicata. OP pleaded that in the present complaint Smt. Shoba Rani had concealed a material fact that she had also filed a Civil Suit before Sh.P.K. Saxena – ADJ Tis Hazari for recovery of Rs.14,54,000/- on same cause of action between the same parties and that Suit had been decided against the complainant vide orders dated 16.07.2005. A copy of the orders of the Ld. ADJ has been annexed with this application as annexure R-1. OP accordingly prayed that the present complaint be dismissed on the ground of resjudicata.



Complainant subsequently filed rejoinder. In the rejoinder complainant admitted that she had filed a Civil Suit in the Court of Ld. ADJ on same cause of action but it was submitted that the said Civil Suit was not decided against her to operate resjudicata as the complaint was merely rejected under Order 7 Rule 11 CPC. Complainant pleaded that the rejection of complaint under Order 7 Rule 11 does not amount to resjudicata because doctrine of resjudicata is only applicable in cases where the Suit has been heard and disposed of on merits.



We have heard Sh.R.N. Sharma – Ld. Counsel for complainant, Sh.G.S. Chawla - Ld. Counsel for OP insurance company, have gone through the material on record and have considered their relevant contentions.



At the very outset we would like to observe that a perusal of the orders of Ld. ADJ dated 16.07.05 show that the same are based on merits of the present case. Orders of Civil Court referred to above establishes that the Ld. ADJ duly considered the pleas of the complainant regarding the receipt for Rs.5,46,882/- dated 15.09.1995. Ld. ADJ with regard to the receipt which was exhibited in the proceedings as exhibit P-1 clearly observed as under :-

“On behalf of the defendant a photocopy of the relevant receipt has been placed on record and as already stated that the said receipt is Ex.P-1. It is signed by the plaintiff at point ‘A’. So this is an admitted document. Even during the course of arguments it was very fairly conceded by Ld. Counsel for the plaintiff that vide receipt Ex. P-1 signed by the plaintiff she had received a total sum of Rs.5,46,882/- on 15.09.1995.”



Then in para 11 of the judgment, Ld. ADJ further observed as under :-

“The aforesaid admitted receipt Ex. P-1 vide which money had been paid to the plaintiff by defendant no.1 in respect of the loss suffered by her on account of the fire clearly goes to show that the sum of Rs.5,46,882/- had been received by the plaintiff in payment of full and final settlement of her claims. Plaintiff in the plaint claims that the said document had been received by her without prejudice to her rights and under strong protest. The admitted receipt Ex.P-1 does not say that the money mentioned therein had been received by the plaintiff without prejudice to her rights and under protest. Receipt Ex.P-1 clearly mentions that the money mentioned therein had been given to her in full and final settlement of her claims. In the plaint plaintiff has not explained at all the circumstances in which the said receipt Ex.P-1 had been issued by her. It is not the case of the plaintiff as disclosed in the plaint that the said receipt had been extracted from her by defendant No.1 by force or under coercion. It is also not the case of the plaintiff that at the time of execution of the said admitted receipt Ex.P-1 by her, her free consent was not there.”



Further in para 13, Ld. ADJ observed as under :

“On a plain and simple reading of Ex.P.1 it becomes absolutely clear that the plaintiff had received a sum of Rs.5,46,882/- mentioned therein on 15.09.1995 in full and final settlement of all her claims and her assertion now in the plaint that the said amount had been received under protest and without prejudice to her rights is simply an after thought and is liable to be rejected.”



No doubt Ld. ADJ in the operative portion of orders dated 16.07.2005 observed that the plaint was rejected under Order 7 Rule 11 but mere mention of the provisions of Order 7 Rule 11 in no way remotely indicate that Ld. ADJ did not consider the merits of the case and merely rejected the plaint on some technical grounds. The provisions of Order 7 Rule 11 (a) provides that a plaint shall be rejected where it does not disclose a cause of action. This provision enables the Civil Court to reject the plaint where it does not disclose a cause of action. A plain reading of the orders of Ld. ADJ in entirety shows that the Ld. ADJ had concluded on merits that the plaint does not disclose a cause of action as the plea raised against the receipt for Rs.5,46,882/- towards full and final settlement of complainant’s claim were devoid of any merit.

The present complaint, therefore, before this Forum is barred by the principle of resjudicata and is liable to be dismissed. We order accordingly. Parties are left to bear their own cost.

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

Case No.299/09

Anila Anand, AE-33, Tagore Garden, 1st floor, New Delhi – 27.

….Complainant

Versus

1. National Insurance Co. Ltd., Karampura branch, New Delhi.

2. Mr. N. Tobdan, Dy. GM, DRO-II, National Insurance Co. Ltd., 229, Jhandewalan Extn., New Delhi.

……..Opposite Parties



CORAM : J.P. SHARMA : PRESIDENT

: S.M. MAZUMDAR : MEMBER

: DR. PREMLATA : MEMBER



O R D E R

J.P. SHARMA (PRESIDENT) :

In brief, complainant’s case is that he got his Wagon Lxi car bearing Regn. No.DL 9CP 4433 insured in March, 2006 with OP-1 for the value (IDV) Rs.3,52,349/-. Thereafter, the policy was got renewed for the period 22.03.2007 to 21.03.2008 and then from 22.03.08 to 21.03.09. For the period 22.03.08 to 21.03.09 the car was got insured for Rs.2,40,002/-. This car got stolen on the night of 07.01.2009 and therefore, complainant lodged an insurance claim with OP for IDV i.e., Rs.2,40,002/- and completed all the necessary formalities relating to the claim to the satisfaction of OP insurance company. OP insurance company sent cheque dated 17.03.2009 for Rs.2,26,500/- only against IDV of Rs.2,40,002/-. According to the complainant, OP insurance company thus inflicted a loss of Rs.13,502/- to him in as much as the cheque instead of for IDV for Rs.2,40,002/- was sent merely for Rs.2,26,500/-. Complainant, therefore, protested the action of OP insurance company vide his letter dated 16.03.2009 - a copy of which has been placed on record bearing acknowledgement of National Insurance Company (OP-1). Subsequently, however, OP refunded the premium of Rs.230/- vide cheque dated 18.03.2009 and according to the complainant OP forced him to accept the same under threat to withhold the claim cheque. According to the complainant the refund of less amount than IDV to the complainant was made by OP willfully with a view to cause harassment to him and therefore, he has approached this District Forum with the present complaint.



OP - insurance company in their written statement merely pleaded that the vehicle was wrongly insured for higher IDV than the IDV of Rs.2,26,500/- then applicable and hence, they after knowing the facts rightly agreed to correct the IDV and sent another cheque for Rs.230/- towards refund of premium. OP claimed that they have rightly settled the claim of the complainant for a full and final amount of Rs.2,26,500/- and therefore, this complaint was liable to be dismissed.



Parties in support of their rival claims filed their respective affidavits.



We have heard Sh.Ajay Anand - husband as AR for complainant, Sh.V.K. Gupta Ld. Counsel for OP, have gone through the material on record and have considered their relevant contentions.



At the very outset we would like to observe that payment of an amount of Rs.2,26,730/- (Rs.2,26,500/-+Rs.230/-) in toto to the complainant against IDV of Rs.2,40,002/- could not be satisfactorily explained by OP. Though OP have pleaded that due to mistake the vehicle was wrongly insured for higher IDV, it has nowhere been explained in the entire written statement as to what was the mistake committed by them because of which the vehicle was insured for Rs.2,40,002/- instead of for Rs.2,26,500/-. Explanation of OP – insurance company regarding the alleged mistake committed in arriving at an IDV of the vehicle is too vague to inspire any confidence. Though it was argued by Sh.V.K. Gupta – Ld. Counsel for OP that the amount of Rs.2,26,500/- was accepted by the complainant towards full and final settlement of his claim, the alleged consent letter of acceptance of the reduced amount of IDV by the complainant could not be placed on record by OP. In view of the material available on record the refund of Rs.2,26,500/- towards IDV of the vehicle and Rs.230/- towards premium refund by OP therefore, is arbitrary and in the facts and circumstances of this case, it cannot be held that OP had paid the amount of Rs.2,26,500/- towards IDV of the vehicle towards full and final settlement of the complainant’s claim. The conduct of OP in having paid the reduced amount of IDV and refund of premium amount of Rs.230/-, therefore, amounts to deficiency in service on their part.



Since, OP have already refunded the alleged IDV of Rs.2,26,500/- and premium amount of Rs.230/- to the complainant, the balance amount to be paid to the complainant towards the IDV of Rs.2,40,002 comes to Rs.13,272/-. We, therefore, direct OP-1 and OP-2 to refund the balance amount of IDV i.e., Rs.13,272/- to the complainant together with a consolidated amount of Rs.3,500/- towards compensation and cost for the harassment caused to the complainant for deficiency in service on the part of OPs. OP-1 and OP-2 would be liable to pay the amount as aforesaid to the complainant jointly and severally.



OP shall comply with the above mentioned order within 30 days of its receipt failing which proceedings u/s 25/27 of Consumer Protection Act may be initiated against them.



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

Complaint Case No.290/2008
Date of Institution 11-11-2008
Date of Decision 28-12-2009
Smt. Prema Devi widow of Sh. Man Singh resident of village and Post Office Thalout , Illaqua Sanour, Sub Tehsil Aut , District Mandi, H.P.

…Complainant
Vs
1. M/S National Insurance Company Ltd , India Exchange

Palace ( Ground floor) Division -III Kolkata 700001.

2. M/S Golden Trust Financial services 16 RN Mukharji Road , Kolkata-700001.

…..Opposite parties


For the complainant Sh. P.P.Goel , ,Advocate

For the opposite party No.1 Sh. Sunder Goal , Advocate

Opposite party No.2 Exparte .

Complaint under Section 12 of the

Consumer Protection Act, 1986.

ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties. The case of the complainant is that she is the widow and nominee of Man Singh deceased who got himself insured vide policy dated 15-2-2004 issued by the opposite parties . Sh Man Singh husband of the complainant was doing construction work at different places and on persuasion of Sh. Rakesh Sharma he got himself insured with the opposite party No.1 with effect from 15-2-2004 to 14-2-2019 in the sum of Rs.5,00,000/-. That on 14-11-2006 ,the life assured died at Thalara, Post Office Banjar , District Kullu while travelling in Jeet Travels from Thalout to Sianj at his work . The opposite parties were informed and the complainant submitted all the requisite documents alongwith claim form on 26-12-2007 for payment of insured sum of Rs.5,00,000/-. The opposite party No.1 was served with legal notice dated 21-4-2009 but claim was not paid to her . With these averments , the complainant had sought a direction to the opposite party No.1 to pay Rs.5,00,000 /- i.e. the assured sum of her deceased husband alongwith interest at the rate of 12% per annum. Apart from this ,cost of the complaint has also been claimed.

2. The opposite party No.1 had filed reply wherein it has been pleaded in preliminary objections that for want of documents i.e. proof , with regard to identity of deceased , final police report, income proof the claim has neither been rejected nor accepted and as such the complainant be directed to supply the above documents alongwith legible copies of First Information report , voter I.D card , as well as local Panchayat certificate, parivar register nakal etc so that the claim could be properly processed, that the delay for settlement of the claim cannot be attributed to the opposite party No.1, that the complaint is no complaint and the dispute referred is no dispute under the act and that the complainant has not come to this forum with clean hands and that the matter cannot be redressed under the summary provisions of the Act. On merits, the opposite party No.1 had admitted that Man Singh was insured under the Janta Personal Accident Insurance claim . The opposite party No.1 had reiterated its stand on merits also as taken in the preliminary objections . The opposite party No.1 prayed for dismissal of the complaint.

3. The opposite party No.2 in reply has admitted that the husband of the complainant was insured with the opposite party No.1 through Sh.Rakesh Sharma on behalf of the opposite party No. 2. It has been averred that the insurance claim is to be settled by the opposite party No.1 as it had sent the duly completed claim form alongwith all documents . The opposite party No.2 prayed for dismissal of the complaint qua it . Initially the opposite party No.2 contested the complaint, however on 17-11-2009 none appeared on behalf of the opposite party No.2 and the opposite party No.2 was proceeded against exparte.

4. The complainant filed rejoinder reiterating the contents of the complaint and controverted the allegations made in the reply .

5 We have heard the ld. counsel for the parties and have carefully gone through the record. The case of the complainant is that her husband Sh.Man Singh was insured with the opposite party No.1 with effect from 15-2-2004 to 14-2-2019 in the sum of Rs.5,00,000/- and died in an accident on 14-11-2006. It is the admitted case of the opposite party No.1 that the deceased Sh. Man singh was insured with it and he died on 14-11-2006. According to the complainant, she had sent all the documents alongwith claim form to the opposite parties for payment of the insurance sum and thereafter despite reminders and repeated notice, payment was not made to her. Conversely , the case of the opposite party No.1 is that the claim could not be settled as required documents were not submitted by the complainant . However, the perusal of the letter dated 19-4-2007 Annexure E-1 written by the opposite party No.2 to the opposite party No.1 shows that a claim has been lodged by the complainant with the opposite party No.2 and she had furnished various documents and the opposite party No.2 had re-directed the claim alongwith documents to the opposite party No.1 for processing the claim. Thereafter also on February 2,2008 vide Annexure E-2, the opposite party No.2 had issued a reminder to the opposite party No.1 to settle the claim of the complainant at the earliest . Aforesaid letters Annexure E-1 and E/2 belie the version of the opposite party No.1 that the claim could not be settled due to the non submission of the documents by the complainant because these letters were duly received by the opposite party No.1 as is evident from Annexure R-VIII and Annexure R-X filed by the opposite party No.2 . Annexure R-X is the photocopy of letter dated 19-4-2007 i.e. Annexure E-1 and the same had been duly received by the opposite party No.1 on 24-4-2007. Annexure R-VIII is the photocopy of letter Annexure E-2 dated 2-2-2008 and the same had been duly received by the opposite party No.1 on 20-2-2008. Therefore , in view of Annexure R-VIII and Annexure -R X . it cannot be said that the complainant has not submitted the documents as alleged by the opposite party No.1. As per the document dated 17th July 2001Annexure R-3 issued by the opposite party No.1 and filed by the opposite party No.2 , insurance person is to submit all the documents through the opposite party No.2 to the opposite party No.1 and for non settlement of the any claim , responsibility is of the opposite party No.1. The relevant portion of aforesaid document reads as under:-

“………………………………………………………

The duties of the insured person is to submit all the required documents / papers through Golden Multi Services club to National Insurance company Ltd and for non settlement of any valid claim whatsoever, the responsibility and liability is with us and none else .”

6 From the perusal of Annexure R-X,it has become clear that documents which were submitted by the complainant with the opposite party No.2 had been received by the opposite party No.1 on 24-4-2007 but the opposite party had failed to settle the claim. Hence , non-settlement of the claim by the opposite party No.1 despite submission of documents by the complainant amounts to deficiency in service under the Act. There is no explanation on the part of the opposite party No.1 as to why the claim of the complainant was not settled despite submission of the claim form alongwith documents and despite issuance of reminders and notice . In our opinion, the opposite party No.1 should have taken a decision about the settlement of the claim of the complainant and to have the same communicated to her within a reasonable period but no decision in this regard has been taken by the opposite party No.1 . Since the complainant had submitted the claim form alongwith documents with the opposite party No.2 and the same were redirected by the opposite party No.2 to the opposite party No.1 and were received by the opposite party No.1 on 24-4-2007, therefore , in our opinion, the claim should have been settled by the opposite party No.1 within a period of at least about three months thereafter i.e. on or before 31-7-2007 but the same has not been settled . Hence in this situation ,it would be in the interest of justice if we direct the opposite party No.1 to pay to the complainant Rs.5,00,000/- i.e. the insured sum alongwith interest at the rate of 9 % per annum with effect from 1-8-2007till realization .

7 In the light of above discussion, the complaint is allowed and the opposite party No.1 is directed to pay Rs.5,00,000 /- to the complainant alongwith interest at the rate of 9% p.a. from 1-8-2007 till realization. In addition to this, the opposite party No.1 is also directed to pay Rs.2500/- as costs to the complaint.

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

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

Consumer Complaint No: 135/2007

Date of presentation: 15.05.2007

Date of decision: 28.12.2009

Pitamber S/O Shri Parsa Ram,

R/O Village Rouri, p.O. Mangu,

Tehsil Arki, District Solan, H.P.

… Complainant.

Versus

1. National Insurance Company Ltd.

Through its Divisional Manager,

Himland Hotel, Shimla-171001.



2. The Branch Manager.

National Insurance Company Ltd.

Branch Office, The mall, Solan, H.P.

…Opposite Parties

For the complainant: Mr. Virender Thakur, Advocate

For the Opposite Parties: Mr. Jagdish Thakur, Advocate.


O R D E R:

Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainant, by invoking the provisions of section 12 of the Consumer Protection Act, 1986. The complainant avers that, he, is owner of truck bearing registration No.HP-11B—0287, which was insured by him, with the OP-Company. It is averred that the insured truck met with an accident, on, 20.07.2006, during the subsistence of the insurance policy and suffered damage of Rs.2,00,000/-, in order to make it road worthy. Thereafter, the insurance claim was lodged with the OP-Company, for indemnification, who failed to indemnify him. Hence, it is averred that, there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, admitted the fact of insurance and issuance of insurance cover. However, it is denied that the complainant, is, not entitled to be indemnified by them, for the reason that, the driver who was driving the afflicted vehicle, at the time, when it met with an accident, was not possessing a valid and effective driving licence, hence, it being breach of terms and conditions of the insurance company, the OP-Company, has no option except to repudiate his claim. The appointment of the surveyor is admitted, yet, the amount assessed by him, was payable subject to the terms and conditions of the insurance contract. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

5. The complainant, is, aggrieved by the act of the OP-Company, in not defraying him, the sum, so incurred by him, on the repair of the damaged vehicle, to make it road worthy. The OP-Company, has contended that, since their was infraction of terms and conditions of the insurance contract, inasmuch, as, the vehicle was being driven by a person, who was not having a valid and effective driving licence, at the time when it met with an accident, hence, the repudiation of the claim of the complainant, is, contended to be legal and valid.

6. The parties do not wrangle over the fact that the vehicle bearing registration No.HP-11B-0287, was insured with the OP-Company, during the period 13.03.2006 to 12.03.2007 vide Annexure C-1. The factum of accident having occurred, on, 20.07.2006, during the period, when the policy was in existence, is, also not in dispute. The reporting of the matter to the OP-Company, and also appointment of the surveyor, are also not at lis, interse the parties.

7. The only point, which requires adjudication, by this Forum, is, whether the OP-Company, has been able to prove the fact, that the driving licence, so possessed by Shri Karnel Singh S/O Karam Singh, who was driving the afflicted vehicle, at the time when, it, met with an accident, was fake or not. Our answer to this, for, the, reasons to be recorded hereinafter, is, in the negative.

8. The complainant has placed on record, a, copy of the driving licence so possessed by him which bears Annexure C-3, and its perusal candidly divulges the fact, that, it is valid up to 14.06.2008. However, the OP-Company, is, relying on Annexure R-3 and the affidavit so sworn by the Investigator Shri Bappa Manna, to prove the fact, that the licence so possessed by Shri Karnel Singh, was not issued by the Licensing Authority Kolkata, hence, a fake document. In our considered view, the OP-Company cannot drive any benefit from the said report, as solitarily, the said report is abysmally insufficient, to, prove the fact of its unauthenticity, hence, results, in the concomitant inference, that, the onus of proving, its, unauthenticity has not been sufficiently discharged by the OP-Company. The said onus would have come to be discharged only in the eventuality of the concerned Licensing Authority proving by way of an affidavit, the, fact of verification of the driving licence of the holder having been conducted by the investigator. In its absence, we are constrained to accord sanctity to the report of the Investigator. More so, when the driving licence under verification did not contain ’0’ before 35708, whereas, the licence qua which the Investigator has furnished, a, report, does contain so. Even though the Investigator has, sought, to, clarify the above discrepancy or variance by way of Annexure R-12. Nonetheless, the clarification, as, meted out by the Investigator, is, anvilled merely on a verbal discussion with the officials of the Motor Licensing Authority, from, where, it was issued. Even though, the said fact is incorporated in the affidavit of the Investigator, yet, in the absence of a certification of the Motor Licensing Authority clarifying the discrepancy or variance to the above extent, in, the licence under verification and qua which report is, furnished, so as to enable, an, inference, that, both the licenses verified and qua which report is submitted, even with ‘0’ before 35708 pertain to Shri Kernal Singh, the, report, of, Investigator, is, hence, while being shrouded with suspicion, bereft of probative value. Therefore, it, cannot aid us in firmly concluding that, the driving licence of its holder, is, unauthentic. What compounds the above inference, is, the, fact the OP-Company, has not filed original of Annexure R-5. Therefore, it can safely be inferred, that, the repudiation of the claim, of the complainant, by the OP-Company, for reasons aforesaid, was not legal and valid, hence, tantamounts to both deficiency in service and an unfair trade practice.

9. Now comes the point of indemnification to which amount, the complainant, is, entitled from the OP-Company, on account of the damage so suffered by his insured vehicle, at the time, when it met with an accident. The OP-Company, has placed on record a copy of the survey report Annexure R-8, dated 09.08.2006, which detailes the fact, that the loss has been assessed at, Rs.86,476/- by the surveyor. The complainant has not been able to rebut or repulse the said survey report, by adduction of any expert assessment, made to the contrary, by an expert surveyor. Hence, for lack of above, we have no other option, but, to, construe that the loss so suffered by the complainant by way of damage to his insured vehicle, is, Rs.86,476/-.

10. As a sequel of the above, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of Rs.86,476/- along with interest at the rate of 9% per annum, from the date of filing of the complaint, i.e. 15.05.2007, till actual payment is made. In addition to this, the OP-Company shall also pay litigation cost of Rs.2000/- to the complainant. This order shall be complied with, by the OP-Company within a period of forty five days, after the date of receipt of copy of this order.

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

Consumer Complaint No: 426/2007

Date of presentation: 15.12.2007

Date of decision: 28.12.2009

Savitri Devi W/O Raja Padam Negi,

Through her Special Power of Attorney

Raja Padam Negi S/O Norgia Chhering,

R/O Negi Niwas Village Barow, P.O. Rampur,

Tehsil Nirmand, District Kullu, H.P.

… Complainant.

Versus
1. National Insurance Company Ltd.

Through its Divisional Manager,

Himland Hotel, Shimla-171001.

2. The Branch Manager.

National Insurance Company Ltd.

Tapri, District Kinnaur, H.P.


…Opposite Parties

For the complainant: Mr. Kartar Singh, Advocate vice

Mr. Pawan Keprate, Advocate.

For the Opposite Parties: Mr. Jagdish Thakur, Advocate.

O R D E R:

Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainant, by invoking the provisions of section 12 of the Consumer Protection Act, 1986. The complainant avers that, she, is owner of Mahindra Pickup Van, bearing registration No.HP-27-012, which was insured by her, with the OP-Company, for a sum of Rs.3,30,000/- vide insurance cover Note No.894146, valid up to 04.07.2007. It is averred that, the insured vehicle met with an accident, on, 21.02.2003, at, about 5.15 PM near Village Baroh in Tehsil Nirmand, during the subsistence of the insurance policy and suffered extensive damage. It is averred, that, the factum of insurance was brought to the notice of the OP-Company, as well, as, to the Police. Thereafter, the insurance claim was lodged with the OP-Company, for indemnification, who instead of settling it, repudiated the same, on false and flimsy grounds. Hence, it is averred that, there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objections, regarding maintainability of the complaint and contended, that, the vehicle was being driven by the driver in violation of the terms and conditions of the insurance policy, as the driver Shri Ram Kumar Rai, was driving the vehicle under the influence of liquor, hence, he was convicted by the learned JMIC Ani, for offences under sections 279, 337 of the Indian Penal Code. It is further contended that final survey of the afflicted vehicle was conducted by M/S M.L. Mehta, who recommended the loss to the tune of Rs.1,15,087/-which was payable to the insured subject to the terms and conditions of the insurance policy. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

5. The parties do not wrangle over, the, fact that the vehicle bearing registration No.HP-27-012, was insured with the OP-Company, during the period 05.07.2002 up to 04.07.2003, for, a, sum of Rs.3,30,000/-, as is evident from the perusal of insurance cover placed on record by the complainant. The factum of accident having occurred, on, 21.02.2003, during the period, when the policy was in existence, is, also not in dispute. The reporting of the matter to the OP-Company, and appointment of the surveyor, by it, for assessment of loss suffered by the vehicle in the accident, is, also not at lis, interse the parties.

6. The complainant, is, aggrieved by the act of the OPs-Company, in not defraying, to, her, the sum, so spent by her, on the repair of the damaged vehicle, to make it road worthy. The OPs-Company, has, contended that, since their was infraction of the terms and conditions of the insurance contract, inasmuch, as, the vehicle was being driven by a person, who was at the relevant time under the influence of liquor, hence, the repudiation of the claim of the complainant, is, contended to be tenable.

7. The only point, which requires adjudication, by this Forum, is, whether the OPs-Company, has been able to prove the fact, that, the, driver namely Shri Ram Kumar Rai, who was driving the afflicted vehicle, at the time when, it met with an accident, was under the influence of liquor, or not, to such an aggravated extent, that, it, deprived him of his cognitive faculties, hence, the accident was begotten solely on account of his aggravated inebriation, as such, the terms of the policy interdicting consumption of alcohol by the driver of the vehicle came to be transgressed. Our answer to this, is, in, the negative, for the reasons to be recorded hereinafter.

8. In support, of, the above contention, the OPs-Company, is, placing reliance, on, a decision rendered by the Learned Sub Divisional Judicial Magistrate, Anni, District Kullu, on, 01.12.2003, arising from the very same incident in regard to which FIR No.16/2003 dated 21.02.2003, was lodged with the concerned Police Station. In the said case, Raj Kumar Rai, driver was convicted by the Learned SDJM, Anni, for, having committed offences under sections 279, 337 I.P.C and 185 of the Motor Vehicle Act. The copy of the Judgment, so, rendered by the Learned SDJM, Anni, bears, Annexure OP-1 and has been brought on record by the OPs-Company, in order, to, prove the infraction of the terms and conditions of the insurance contract. However, in our considered view, the OPs-Company, cannot derive any leverage from the said verdict, of, the Learned SDJM, Anni, who had held the driver namely Raj Kumar Rai, guilty, for, driving the vehicle rashly and negligently, with his being, at, the relevant time under the influence of liquor, hence, could not maneuver the vehicle. Even though, the learned court, in, the judgment relied upon by the OPs-Company, to, bring home, its, contention of infraction or breach of the tears and conditions of policy by the driver of the vehicle, hence, barring, the, complainant to claim relief from us, has relied upon the report of the chemical examiner, who, had, detected alcohol to the extent of 98.0 mg in the viscera of the driver sent for his examination, yet, in our considered view, when, the leaned court, has, neither elicited nor requisitioned any further opinion from the chemical examiner, to, the, effect, whether the quantity of alcohol detected in the viscera of the driver, deprived him of his cognitive faculties, rather, the learned court merely for, lack of cross-examination of the Investigator, qua the fact whether the quantity of alcohol detected, so, deprived, the driver of his cognitive faculties, which otherwise also, even if, cross-examined, he, was not competent to efficaciously negative or affirm, nor, his answer to the suggestion either way was of any probative value, having, recorded a finding, of, his given the quantity of alcohol consumed, rendered him unable to maneuver the vehicle at the relevant time. The finding, hence, for want of expert opinion to lend force to the finding rendered by the learned court, may, not, sustain the contention of the OPs-Company, that, the said finding achieves conclusiveness in clinching the factum of the driver having given his inebriation lost his sense of co-ordination. More so, when, in order to repulse, the, fact that, 98.0 mg alcohol, as, was detected in the blood test of Raj Kumar Rai, did not deprive him, of, his cognitive faculties, the, learned counsel for the complainant, has drawn, our, attention, towards, Medial jurisprudence and Toxicology by HWV Cox, Seventh Edition. Obviously, the, above text would rather aid us, to, determine as well, as, clinch the crucial fact, of, whether the aforesaid quantity of alcohol deterred him, to, drive the vehicle, inasmuch, as, it deprived him of his cognitive faculties, so as, to, bring about an infraction of the policy, de hors, the fact whether, he, drove the vehicle negligently which fact, of, his driving the vehicle negligently constitutes infraction of penal laws, rather, than, of, the terms and conditions of the policy. Even otherwise, the quantity of alcohol consumed, perse, would not beget an inference of negligence, unless proved, that, it deprived him of his cognitive faculties. Hence, reliance upon afore referred text. We have gone through the aforesaid jurisprudential extract and, its, table 7.5.1 shows the effects of different quantities of Alcohol consumed. In it, it, is, opined that a person having a quantity of alcohol up to 140% milligram, in his blood, would be dry and decent, fit to drive. In the instant case, the quantity of alcohol detected in the blood of the driver, when he was driving the vehicle, was 98.0 mg, hence, rendering him, fit to drive the vehicle, hence, infraction of the policy was not occasioned. Even though, the learned court, may have hold him guilty of driving the vehicle negligently, while being inebriated, yet, the said conclusion may suffer effacement considering the above afore referred text. Moreover, negligent driving may arise even in the event of a driver having not consumed alcohol, as when, he give, a, go bye to the rules of adherence of care and caution which a reasonable man of ordinary prudence is, to observe, inasmuch, as, he may drive rashly or at an excessive speed, as such, be negligent, even without consuming alcohol. What accentuates the above conclusion, is, the fact, that the textual opinion aforesaid rendered by the learned author of, a, text on Medial jurisprudence and Toxicology aforesaid, has been approbated by the Hon’ble HP State Consumer Commission, Shimla, in Appeal No.316 of 2005, decided on 01.08.2006, in case Himachal Pradesh Road Transport Corporation Ltd. Versus The New India Assurance Company Limited. Therefore, we, hold, that, the repudiation of the claim, by the OP-Company, on, the ground that the driver was driving the vehicle under the influence of liquor, hence, infracted the terms and conditions of the insurance policy, was, illegal and arbitrary, tantamounting, to, both deficiency in service and an unfair trade practice on the part of the OP-Company.

9. The only point which now requires determination by this Forum, is, the amount of indemnification payable by the OP-Company, to the complainant, on account of the damage caused to her insured vehicle in the accident. The complainant, is, claiming a sum of Rs.1,75,248/- being the sum, spent by her in getting the vehicle repaired and make it road worthy. On the other hand, the OP-Company , is, placing reliance on survey report prepared by Er. C. Rakesh Azta, dated 25.03.2003, vide which the loss was quantified at, Rs.1,15,629/-. The surveyor being an expert in his field and his report having remained un-repulsed and un-rebutted, on behalf of the complainant by adduction of expert evidence to the contrary, the only conclusion which sprouts from the above, is, that the complainant, is, entitled to be indemnified by the OPs-Company, to the extent of Rs.1,15,629/-, the sum, so spent by her in repairing the vehicle and making it road worthy.

10. Resultantly, we allow this complaint and direct the OPs-Company, to indemnify the complainant to the extent of Rs.1,15,629/- along with interest at the rate of 9% per annum, with effect from the date of filing the complaint, i.e. 15.12.2007, till actual payment is made. In addition to this, the OP No.1-Company, shall also pay Rs.2500/-, as costs of litigation to the complainant. These payments shall be made to the complainant by the OPs-Company, within a period of forty five days, after the date of receipt of copy of this order, failing which the OPs-Company, shall also be liable to pay punitive damages of Rs.5,000/-. In the above terms the complaint stands disposed of.

11. 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.