C.C.No, 195/12-6-2009

Decided on 06.01.2010

Rajiv Kapoor aged about 35 years son of Parkash Lal Kapoor, Mohalla Sheikhan, Hoshiarpur.
Complainant
vs.
1.

The National Insurance Co. Ltd. Division Sub Office Madan Building, Phagwara Road, Hoshiarpur 146001 office code 01800 through its Div.Manager.
2.

The National Insurance Co. Ltd., Divisional Office -10,Flat no.101-106, N-1, BMC House, , Cannaught Place, New Delhi.


Opposite party

Complaint u/s 12 of the Consumer Protection Act, 1986.


Quorum: Sh.P.D.Goel,President,

Sh.A.S.Jauhar,Member.

Mrs.Vandna Choudhary,Member.


Present; Sh.C.S.Marwaha vice Sh S.R.Dhir, counsel for the complainant.

Sh V.K.Prasher,counsel for the OPs..


PER P.D.GOEL,PRESIDENT

1.

The complainant namely Rajiv Kapoor has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the complainant purchased the Maruti Alto car bearing registration no.PB-07-Q-1346 and the same was insured through Hoshiarpur Automobiles, Hoshiarpur with the OPs. The said car was financed from State Bank of Patiala, Kanak Mandi, Hoshiarpur.
2.

It is the case of the complainant that the said car met with an accident on 28.3.2006. The FIR No.99 dated 28.3.2006 u/s 279,337,304-A IPC was recorded in P.S.Sadar, Kurukshetar. The car was badly damaged in the accident. The complainant informed the OP about the accident. The complainant got the car repaired and spent the amount of Rs.66858/-.The OP assured the complainant to bear all the expenses incurred on the repair of the car.
3.

It is further the case of the complainant that he approached the OP to pay the claim amount but of no avail. The OP vide letter dated 25.7.2006 repudiated the claim on the ground that the DL of the driver was fake and invalid . The complainant also sent a registered legal notice dated 29.12.2007 to the OP. It is further the case of the complainant that in MACT claim petition no.82 of 2006 decided on 25.8.2007 by MACT, Kurukshetar, the claim was allowed by admitting the genuineness of the DL.
4.

It is further the case of the complainant that he had filed Complaint no.85/4-4-2008 and the Hon'ble Forum vide order dated 1.1.2009 passed the following order:

“The complainant is directed to supply the said verification report of DL of Transport Authority,Agra to the OP for the settlement of the claim within 10 days from the receipt of copy of the order, and thereafter, the OP shall settle/process the claim of the complainant within 30 days and in case, the complainant does not feel satisfied with the settlement of the claim by the OP, he has a right to approach this Forum by filing the fresh complaint,if he so desires. “
5.

It is further the case of the complainant that as per orders of the Forum, he supplied the copy of DL, verification report of the DL of Transport Authority, Agra and bank clearance certificate to OP No.1 within time . The complainant also served notice dated 9.3.2009 but the OPs did not settle the claim, hence this complaint.
6.

OPs filed the reply. Preliminary objections vis-a-vis maintainability, limitation and breach of terms and conditions were

raised. On merits, the claim put forth by the complainant has been denied. It is replied that the driver of the vehicle in question was not holding a valid and effective licence at the time of alleged accident. That Sh H.S.Bawa , Surveyor and Loss Assessor was appointed to assess the loss caused to the vehicle. The loss to the vehicle was assessed at Rs.57,500/-. There was no assurance on the part of the OPs to pay the alleged damage, rather, the claim was to be proceeded in view of the terms and conditions of the policy.
7.

It is further replied that as per orders of this Forum, the complainant failed to comply with the directions and even the credit memos submitted by him are not valid as per rules.
8.

In order to prove the case, the complainant tendered in evidence affidavit Ex.C-1, copy of judgment dated 1.1.2009 Mark C-2, legal notice Mark C-3, application by complainant Mark C-4, cover note Ex.C-5,RC Ex.C-6, FIR Ex.C-7, bill dated 14.4.2006 Ex.C-8, repudiation letter Ex.C-9, legal notice Ex.C-10, postal receipt Ex.C-11, UPC receipt Ex.C-12, reply Ex.C-13, reply Ex.C-14, postal receipt Ex. C-15, UPC Ex.C-16, copy of order dated 25.8.2007 Ex.C-17, verification of DL Mark C-18, licence Ex.C-19, legal notice dated 9.3.2009 Ex.C-20, postal receipts Ex.C-21,C-22, UPC Ex. C-23, print page of Advocate's envelope Mark C-24, letter dated 12.1.2009 Ex. C-25 and bank certificate dated 11.12.2008 Ex. C-26 and closed the evidence.
9.

In rebuttal, the opposite parties tendered in evidence affidavit of R.K.Chawla, DM Ex. OP-1, order dated 10.6.2009 Ex. OP-2, surveyor report of H.S.Bawa Ex. OP-3 and insurance policy with terms and conditions Ex. OP-4 and closed the evidence.
10.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
11.

The first point which calls determination from this Court is whether the driver of the vehicle in question was holding a valid and effective licence at the time of the accident? The answer to this is in the affirmative.
12.

Ex. C-19 is the attested copy of DL of Sh. Balwinder Kumar son of Gyan Chand valid from 17.4.2001 to 06.12.2017. The complainant has produced on record the endorsement/ verification report of Registering Authority, Agra on his application Ex. C-18 to the effect that Balwinder Kumar son of Gyan Chand was holder of driving licence no. 3997/AG/01 issued on 17.4.2001 valid from 17.4.2001 to 6.12.2017. The OPs have not produced on record any evidence to prove that the Balwinder Singh-driver of the said vehicle was not holding a valid and effective license at the time of accident and on the contrary, the complainant has proved on record that the driver of the said vehicle was holding a valid and effective license at the time of accident.
13.

Ex. OP-3 is the report of surveyor Sh H.S.Bawa, wherein he has assessed the net loss to the tune of Rs.57,500/- and on the contrary, the complainant has placed on record bill cum receipt amounting to Rs.66,858/- Ex. C-8 of Hoshiarpur Automobiles, Authorized Maruti Dealers, Hoshiarpur to prove the loss and the amount spent on the repair of the vehicle in question.
14.

Since the complainant has produced on record the bill cum receipt Ex. C-8 qua which he has paid the amount of Rs. 66,858/- to Hoshiarpur Automobiles, Authorized Maruti Dealers, Hoshiarpur on account of the repair of the vehicle, therefore, the report of the surveyor qua Ex. OP-3 stands rebutted.
15.

As a result of the above discussion,it is held that the OPs were not justified to repudiate the claim of the complainant which amounts to deficiency in service, with the result, the complaint is accepted and the OPs are directed to make the payment of Rs. 66858/- with interest @ 9% per annum from the date of complaint i.e. 12.6.2009 till payment. The OPs are further directed to pay Rs.1000/- as costs of litigation . Compliance of the order be made within one month from the date of receipt of copy of the order. Copy of the order be sent to the parties free of cost. File be consigned to the record.

C.C.No.598 of 2007

BETWEEN:

M. Viswanadh,

S/o. Late Anandam,

Retd. Circle Inspector of Police,

Ananda Bhavan,

Stuartpuram,

Bapatla, Guntur district. … Complainant

AND

1. The Divisional Manager,

National Insurance Company Limited,

DO-V, Plot No.C-20, D.No.AD-1

2nd Avenue, Anna Nagar, Chennai-600 040.

2. The Managing Director,

Road Safety Club Private Limited,

Admn. Office, 2A, II Floor, Prakasam Road,

T. Nagar, Chennai-17. … Opposite parties

This complaint coming up before us for final hearing on 12-01-10 in the presence of Sri G.S.Rama Rao, Advocate for complainant and Sri V. Nageswara Rao, advocate for OP1 and of Sri S.A. Khadar, advocate for 2nd opposite party, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:
O R D E R

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

This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant praying to direct the opposite parties 1 AND 2 to pay a sum of Rs.2,50,000/- with interest or such other amounts together with compensation for pain and suffering and for costs.

The averments of complaint in brief are as follows:

The complainant is obtained two membership certificates from 1st opposite party through the 2nd opposite party connected to two certificates of insurance. The said membership certificates are obtained by the complainant on 25-10-04. As per the above said certificates of membership and insurance policies the complainant was covered under the GPA policy terms and conditions and exclusions. On 17-01-05 at 7.00 am while the complainant was driving the moped he slipped at the cutting edge of the CC road due to fog in his village and sustained injuries to his left leg knee joint and lost hearing of both ears. Immediately he was moved to Jyothirmai Nursing home situated at Chirala by his wife at 7.30 am. Dr. M.Ch. Subba Rao admitted the complainant in his hospital as in patient. He was advised bed rest and treatment for 3 days from 17-01-05 to 19-01-05. The complainant took treatment in the said nursing home from 17-01-05 to 19-01-05. As the complainant was not recovering he was discharged on 20-01-05 and advised to consult an ENT doctor. As per the advice, the complainant attended Aditya Nursing Home at Chirala and got treated by the doctor Ramesh Babu. Audiogram was done and it shows 77% of loss of hearing and the doctor issued certificate for hearing loss on the reverse of the personal accident claim form under date 16-03-05. The doctor also issued medical certificate dated 16-03-05 categorically stating the deafness of both the ears is more than 70% and the complainant need hearing aid. The disability is 70% which is permanent and partial. The complainant served demand letter dated 31-01-07 by registered post and sent a lawyer notice dated 14-11-06 for settlement of the claim amount, but the opposite party did not consider. Thus, there is deficiency of service on the part of opposite party No.1 in not settling the claim. Hence, the complaint.

1st opposite party the insurance company filed its version which in brief is as follows:

Most of the allegations mentioned in the complaint are in correct and false. It is absolutely false to say that on 17-01-05 the complainant slipped from his moped and sustained injuries to his left leg knee joint and lost hearing of both the ears. The complainant concocted the said story to have unlawful gain from this opposite party. Further, it is false and absurd to say by slipping from a moped he lost 77% of hearing of both ears. It is also false to say that he was admitted in the hospital of Dr. M.Ch. Subba Rao and after 3 days he was discharged and advised to consult and ENT doctor and that he took treatment in Aditya Nursing Home. The complainant claims that since he is having two membership cards he is claiming double benefit under both certificates but he cannot claim the benefit twice. Even if the complainant is able to prove that he sustained any permanent disability he could get only half of the assured amount under the membership card even if he has more than one such card. The complainant approached the insurance ombudsman for the said relief but the same was dismissed on merits by the ombudsman by its order dated 30-07-07. The ombudsman categorically held that the complainant did not sustain any permanent disability. The complainant has claimed therein that he sustained permanent partial disability and he suppressed the same. Under the membership card, if the member suffers disability, so far ears are concerned, loss of hearing – both ears, then 50% of the capital sum insured will become payable and if he suffers loss of hearing of one ear then he can get 15% of the capital sum insured will become payable. In this case there is no loss of hearing of either two ears or one ear. All the terms and conditions are clearly mentioned on the reverse of the certificate of insurance. Since, the complainant is not claiming that he suffers total loss of hearing of either two ears or one ear, he cannot claim any relief for the alleged pain and suffering from this opposite party and the complaint is liable to be dismissed with costs.

OP2 filed its version which is in brief is as follows:

Most of the allegations mentioned in the version are in correct and false. This opposite party is co-coordinating with 1st opposite party for providing policies to the members. Therefore, this opposite party cannot be made liable. The insurance policies provided for the period from 25-10-04 to 24-10-05 with a GPA Master policy. The service of this opposite party would be only to the extent of arranging the insurance company to provide the policy of insurance to its members. In this case 1st opposite party provided the policy and therefore, a contract is formed between the complainant and the 1st opposite party. There is no deficiency of service on the part of this opposite party. When a claim is made to this opposite party it would forward the claim papers to the concerned insurance company. In case if the insurance company does not act, the remedy for the complainant is to proceed against the insurance company but not against this opposite party. This opposite party is not a proper and necessary party to the complaint. All the disputes, differences or claims arising out of this agreement shall be settled by arbitration in accordance with the provisions of arbitration and reconciliation act. It is clearly manifested from the terms and conditions that any dispute in relation to will be the jurisdiction of Chennai courts only as such, this Forum has no jurisdiction to entertain the complaint. Complainant is not a consumer as defined under the Act. Hence, the complaint may be dismissed against this opposite party.

The complainant filed affidavit in support of his version reiterating the facts mentioned therein. The 1st opposite party filed affidavit in support of its version reiterating the facts mentioned therein. The 2nd opposite party filed affidavit in support of its version reiterating the facts mentioned therein. On behalf of complainant Ex.A1 to A12 are marked and on behalf of 1st opposite party Ex.B-1 is marked.

Ex.A1 is the membership certificate issued by 2nd opposite party to the complainant and the certificate of insurance issued by 1st opposite party. Ex.A2 is another membership certificate issued by 2nd opposite party to the complainant and the certificate of insurance issued by 1st opposite party. Ex.A3 is the legal notice issued by the complainant to the opposite parties dated 14-11-06. Ex.A4 is the audiogram. Ex.A-5 is the medical certificate issued by Aditya Nursing Home, Chirala. Ex.A-6 is the personal Accident claim form. Ex.A-7 is the registered notice got issued by the complainant to 1st opposite party dated 31-01-07. Ex.A-8 is the postal acknowledgement. Ex. A9 is the admission certificate issued by Jyothirmai Nursing Home, Chirala. Ex.A-10 is the detailed discharge summary certificate issued by Jyothirmai Nursing Home, Chirala. Ex.A-11 is the letter addressed by Superintendent, Government General Hospital, Guntur along with the proceedings of the Chairman, Regional Medical Board, GGH, Guntur and audio logical evaluation. Ex.A-12 is the out-patient chit of Government ENT hospital, Hyderabad along with the certificate of hearing of disability issued to the complainant and audio logical assessment.

On behalf of 1st opposite party Ex.B1 is marked. Ex.B1 is the proceedings of the insurance ombudsman, Hyderabad.

Now the points for consideration are that

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

POINTS 1 and 2:- As seen from Exs.A-1 and A-2 the complainant is a member of OP2 club and he had obtained two membership certificates from OP2 and in connection thereto OP1 issued two insurance certificates. The said fact is not in dispute. It is the case of the complainant that on 17-01-05 at 7.00 am while he was driving the moped he slipped at the cutting edge of the CC road due to fog in his village i.e., at Stuartpuram, Bapatla of Guntur district which is within the jurisdiction of this Forum and that he sustained injuries to his left leg knee joint and lost hearing of both ears and he took treatment as in patient from 17-01-05 to 19-01-05 in Jyothirmai Nursing Home and later he took treatment at Aditya Nursing Home, Chirala. In support of his contention the complainant filed the certificate issued by the Aditya Nursing Home and the audiogram of the said hospital which are marked as Exs.A-4 and A-5 and that he also filed the admission certificate and detailed discharge summary certificate issued by Jyothirmai Nursing Home, Chirala which are marked as Exs.A-9 and A-10. As seen from Exs.A-1 and A-2 each insurance certificate was issued for the assured amount of Rs.2,00,000/- for the permanent partial disablement. As seen from Ex.A-5 the complainant sustained injury in the accident due to the fall of the moped and he sustained bilateral semo neural deafness for more than 70%. As seen Ex.A-10 also the complainant sustained injuries to his left leg knee joint and he lost hearing. As the complainant lost hearing he claimed for compensation under Ex.A-6, wherein it was mentioned that the complainant had sustained bilateral semo neural deafness due to fall. As seen from Ex.A-9 also the complainant had sustained injuries due to moped accident on 17-01-05 at 7.00 am and that he sustained injuries to left leg knee joint and lost hearing. Thus, it is proved that the complainant involved in a motor accident and sustained injury to his left leg knee joint and lost hearing. Hence, this Forum has got jurisdiction since the cause of action took place at Stuvartpuram, Bapatla. This Forum also referred the complainant to the Medical Board for further examination and report. The complainant was examined by the Regional Medical Board, Government General Hospital, Guntur on 16-12-09 and issued certificate stating that the complainant-

Right ear – 20-30-DB loss- normal for his age.

Left ear -50-60 DB loss – moderate hearing loss.

% of hearing loss is shown as 007.5%.

Thus as seen from Ex.A-11 the complainant lost hearing for his left ear only and the percentage of loss of hearing was shown as 007.5% only and it is also mentioned in it that the right ear is normal for his age. Thus as per Ex.A-11 the complainant had loss of hearing for left ear only to the extent of 007.5%. Further, the complainant himself got examined at Government ENT hospital at Hyderabad and obtained a certificate vide Ex.A-12, wherein the hearing disability of the complainant is shown at 35% and the disability is shown as mild.

OP1 the insurance company filed Ex.B-1 the proceedings of the insurance ombudsman, Hyderabad. The ombudsman in the said proceedings dismissed the claim of the complainant on the ground that the complainant had not sustained irrecoverable loss of hearing.

The learned counsel for OP1 has relied upon the following decisions:

1. 2005 (3) CPR 130 (NC) National Consumer Disputes Redressal Commission, New Delhi between Smt Shakuntala Solanki vs The Oriental Insurance Company & Ors., wherein it was held that in the absence of any evidence that claim under policy of person accident was covered under policy, repudiation of claim could not constitute deficiency of service.

2. 2007 (1) CPR 315 (NC) NCDRC, New Delhi between Ajay kumar vs Life Insurance Corporation of India, wherein it was held that, “where accident benefit under life insurance policy provided to cover only permanent by total disability and insured suffered accident injury described as 81% and partial since not to be described as permanent accident benefit was not awardable”.

3. 2008 (3) CPR 214 (NC) NCDRC, New Delhi between LIC of India vs. Prakash Chandra, wherein it was held that, “where disability of complainant was not 100%, complainant was held not eligible for disability benefit in view of the terms of the policy”.

Basing on the aforesaid decisions and order of the Ombudsman (vide Ex.B-1) it is the contention of learned counsel for OP1 that the complainant did not sustain permanent total disablement of loss of hearing which is irrecoverable in nature as such the policy does not cover his case. He has also referred the medical certificates produced from Aditya Nursing Home (vide Ex.A-5 dated 16-03-05) which shows 70% of loss of hearing. The certificate issued by the Medical Board at Guntur shows loss of hearing at 7.5% (vide Ex.A-11 dated 16-02-09) and whereas the certificate issued by ENT Hospital, Hyderabad on 31-12-09 (vide Ex.A-12) shows 35% of hearing disability, as such, they are at variance and do not come within the purview of policy conditions.

As seen from certificate of insurance and table of loss printed on its backside vide Ex.A-1 there are two kinds of disabilities viz.,

1) Permanent Total Disablement

2) Permanent Partial Disablement.

Under Permanent Total Disablement, if such accidental injury shall within 12 calendar months of its occurrence be the sole and direct cause of the total and irrecoverable loss of,

i) Sight of both eyes/two hands/two feet/

one hand and one foot/sight of

one eye and one hand or one foot : Rs.2,00,000/-

ii) Sight of one eye or one hand or one foot : Rs.1,00,000/-



Under Permanent Partial Disablement, if accidental injury shall within 12 calendar months of its occurrence be the sole and direct cause of the total and irrecoverable loss of use or the actual loss by physical separation of the following, the percentage of the capital sum insured of Rs.2,00,000/- as indicated shall be payable. For the loss of hearing of both ears 50% of sum assured. For the loss of hearing of one year 15% of the sum is payable.

From the above referred category of injuries two types of disabilities are noted Viz., 1) Permanent Total Disability 2) Permanent Partial Disability.

The complainant immediately after accident underwent medical examination and took treatment in Aditya Nursing Home, Chirala and obtained certificate vide Ex.A-5 wherein the deafness is noted as more than 70%. As the learned counsel for the Insurance Company doubted this certificate, at the instance of both parties the complainant was referred to Medical Board, GGH, Guntur for examination and report. Accordingly, he was examined and report is sent stating that disability to the extent of 7.5% in the left ear vide Ex.A-11. As complainant did not satisfy with the said report, he himself approached Government ENT Hospital, Hyderabad for examination and report. They have conducted Audiological assessment and hearing assessment, wherein they evolved the percentage of disability to the extent of 35%. From these reports, as one can understand that ever since he met with accident on 17-01-05 he has developed loss of hearing. On immediate examination it was found to the extent of 70% and in the year 2009 at 7.5% and 35% as per the reports referred above. These reports goes to show that the loss of hearing is permanent in nature in his left ear and he has not recovered from such loss. This kind of injury, in our considered opinion, do fall under second category i.e., Permanent Partial Disability for which 15% is fixed of the total sum assured. Though the complainant has obtained two membership certificates, but as per contention of Insurance Company, he is entitled for the claim under one policy but not under two policies. Therefore, we can consider the claim of complainant to the extent of 15% under one policy itself. As the capital sum assured under the policy is Rs.2,00,000/- and 15% of the sum is worked out to a tune of Rs.30,000/-. Therefore, the complainant is entitled for the said sum of Rs.30,000/-. Accordingly, we award the same. Non payment of the same amounts to deficiency of service.

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

1. The 1st opposite party is hereby directed to pay a sum of Rs.30,000/- to the complainant with interest @9% p.a., from the date of complaint i.e., 26-09-07 till the date of realisation.

2. The claim is dismissed against 2nd opposite party.

3. The 1st opposite party is further directed to pay a sum of Rs.500/- towards costs of the complaint.

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

Dear sir,

I have taken a mediclaim policy of The National Insurance Co Ltd at Mumbai branch my policy No. is MUM-NC-I0335-001-0005992-D . My MOM was hospitialised due to suffering from co breast/Rb.) sx(hrm).She was hospitliased at Kalidevi Hospital ,Hansi. We claimed on 27Oct 2009 at Mumbai branch (ttk helth sevices)
Even we apparoched to Banglore branch, but we did not got any response towards them.


It is my kind request to look in to this matter and reply positively.

Warms Regard
Bhoop Singh
+919015637621

sir,i am soumya bhandari my policy number is 577911605,inst. premium rs.1000/month through ecs.and it will be started from 09/2009.my agent code is 26470412.but still now 18.02.2010. original policy paper except first premium receipt,i have not.and so i am so angry.my phone no. is 9804901212/9830325494

CONSUMER COMPLAINT No. 106 / 2009

Smt. Kudumula Anasuyamma, W/o Late Babu Reddy,

aged about 31 years, R/at D.No. 4/5/136,

Viswabharathi School Bazaar, Ankalammapeta,

Pulivendula, Kadapa District. ….. Complainant.

Vs.

1) National Insurance co. ltd., Rep. by its General Manager,

Regd Office : 3, Middleton Street, Post Box No. 9229,

Kolkata – 700 071.

2) National Insurance Co. Ltd., Rep. by its Divisional Manager,

Sri complex, 2nd floor, Subhas Road, P.B. No. 37,

Kakinada (E.G. Distrit, A.P.) – 533001.

3) National Insurance Co. Ltd., Rep. by its Branch Manager,

Kadapa, Kadapa District. ….. Respondents.

This complaint coming on this day for final hearing on 5-1-2010 in the presence of Sri G. Venkateswara Reddy and Sri G. Trivikram Singh, Advocates for complainant and Sri D. Rajasekhar Reddy, Advocate for respondents and upon perusing the material papers on record, the Forum made the following:-


O R D E R


(Per Sri S.A. Khader Bahsa, Member),

1. Complaint filed under section 12 of the Consumer Protection Act 1986.

2. The brief facts of the complaint are as follows:- The complainant Smt. Kudumula Anasuyamma is the wife of late K. Babu Reddy, who has taken a policy under Janatha personal Accidental policy bearing No. 550800/47/08/9600000129 from R2 by paying Rs. 60/- towards the premium. The period of policy is only for one year that commenced from 27-5-2008 to 26-5-2009. This policy was issued in the name of husband f the complainant. As per policy, in case of accidental death of the insured, the nominee would be paid Rs. 1,00,000/- towards accidental death benefit. During the currency of the policy on 5-6-2008 at about 6.50 p.m the husband of the complainant met with an accident and died on 8-6-2008 while taking treatment at Life Line hospital, Kakinada. The accident was registered as FIR No. 100/2008 of Yanam Police station at Yanam under section 279 & 338 IPC initially and it was later altered into 304 A IPC. Being a nominee to the above policy the complainant made a claim with the respondents for Rs. 1,00,000/- towards insured amount. The entire process of making claim was forwarded through R3. She has submitted FIR, Inquest report, post mortem report, death certificate and all other required documents to R2 and she made several communications with the respondents. But the respondents have not settled her claim and dragged the matter for several months. Atlast, R2 sent a letter dt. 11-11-2008 to the complainant, expressing his inability to settle her claim on the ground that the insured obtained the policy and nominated Mrs. K. Anamma to receive the benefits. It is pertinent to state here that in the policy itself, it was clearly mentioned about the relation to the insured as wife and that the complainant is no other than the wife of the insured mentioning the name of K. Anasuyamma is purely a typographical mistake. This was already informed to R2 by the complainant in her letter dt. 11-9-2008. Even then R2 sent the above letter dt. 11-11-2008 expressing his inability to settle the claim, while in service at Defence, the husband of the complainant mentioned her name as K. Anayasumma without application of mind the respondents have refused to settle her genuine claim. There are no bonafidies on the part of the respondents. The respondents are liable to pay insured amount to the complainant. Having vexed with the negligent attitude of the respondents she sent a legal notice dt. 14-3-2009 calling upon the respondents to settle her claim. Though the respondents received notice they failed to give any reply as such she filed this complaint before this forum requesting to allow her complaint and to direct the respondents 1) to pay Rs. 1,00,000/- towards insured amount, 2) to pay Rs. 20,000/- towards mental agony and Rs. 2,000/- towards costs of the complaint.



3. R1 to R3 filed a counter stating that the complainant is put to strict proof of all allegations made for the petition, except those which are expressly admitted herein by the respondents. The deceased Babu Reddy obtained a policy from the Branch office of R1 at Yanam of pondicherry state, the said branch office coming under the supervision and control of R2. It is submitted that no office of R1 company is situated at Kadapa city. But a Branch office of R1 is located at Proddatur town only. At the out set the complaint is not maintainable before this forum, as the R1 office located at Kalkotta and its branch office of Yanam of R1 issued the policy in question to K. Babu Reddy of yanam of U.T As such there is no territorial jurisdiction to entertain the complaint. The complainant added R3 for maintaining this complaint before Hon’ble Forum. In fact no such office is located at Kadapa for R1 company. Therefore, the complaint is suffers from territorial jurisdiction. The Hon’ble National consumer Redressal Commission observed the same in, New Delhi observed in its judgement reported in CPR VII – 1995 (2) page 499. The deceased nominated one K. yanamma of Yanam as nominee under the said policy. But the entire correspondent was made by one K. Anasuyamma of Pulivendula town of Kadapa District and the said Anasuyamma laid a claim before R2. Therefore, R2 rightly acted upon the claim and repudiated the claim of the said Anasuyamma as she is not the nominee as mentioned in the policy. Having seen from the documents annexed with the complaint, no document reveled that the complaint is the nominee of the deceased of the said Babu Reddy as mentioned under the policy. The inquest report held on the body of the deceased Babu Reddy and the Station House Officer of Yanam, filed final report did not disclosed the complainant is the nominee of the said Babu Reddy. Therefore, the complaint is not maintainable before this forum and she has to approach competent civil court for declaring that she is the nominee of the deceased. R2 clearly mentioned in its repudiation letter dt. 11-11-2008, in case the complainant have not satisfied with their decision she can make representation to their customer service office at the given address. Therefore, it is clear that there is no deficiency of service on the part of the respondents company. In view of the above circumstances the respondent rightly repudiated the claim on 11-11-2008 on valid and true correct ground. Therefore, the complaint is liable to be dismissed against the respondents with exemplary costs and the respondents requested to dismiss the complaint against the respondents company in the interest of justice.



4. On the basis of the above pleadings the following points are settled for determination.

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

ii. To what relief?



5. On behalf of the complainant Ex. A1 to A13 were marked and no documents were marked on behalf of the respondent. Oral arguments were heard from both sides.



6. Point No. 1 Ex. A1 is the Xerox copy of National Insurance policy No. 550800/47/-8/9600000129 in the name of Kudumula Babu Reddy of Kanakalapeta, Yanam District Pondicherry, U.T Smt. K. Yanamma is the nominee of this policy, whose relationship by the insured Kudumula Babu Redy is shown as wife. This policy is in force from 27-5-2008 to 26-5-2009. Ex. A2 is the Xerox copy of certificate of death of K. Babu Reddy issued by the Municipal Corporation, Kakinada. Ex. A3 is the original letter dt. 11-11-2008 of the Divisional Manager, National insurance Co. Ltd., to Smt. K. Anasuyamma in which the claim was repudiated. Ex. A4 is the Xerox copy of legal notice dt. 14-3-2009. Ex. A5 are two postal receipt Nos. 4300 & 4301. Ex. A6 are the original postal acknowledgement cards. Ex. A7 is the original letter of K. Anasuyamma dt. 11-9-2008 addressed to Senior Divisional Manager. Ex. A8 is the Xerox copy of FIR No. 100/2008 U/s 279, 339 IPC of Yanam police station, dt. 5-6-2008. Ex. A9 is the Xerox attested copy of inquest report in Cr. No. 100/2008 of Yanam police station, dt. 5-6-2008. Ex. A10 is the Xerox copy of post mortem report on the dead body of K. Babu Reddy issued by Asst. Professor, Rangaraya Dental College, Kakinada. Ex. A11 is the Xerox copy of final form/report filed in the court of J.M. Yanam in Cr. No. 100/2008 of Yanam Police station. Ex. A12 is the Xerox copy of family member’s certificate issued by the Tahsildar, Pulivendula, dt. 4-4-2009. Ex. A13 is the Xerox copy of service particulars certificate issued by record officer of Madras Regiment, dt. 8-10-2009.



7. As could be seen from the above documents, it is a fact that one K. Babu Reddy, took individual Janatha Personal Accident policy Ex. A1, which is inforce from 27-5-2008 to 26-5-2009. The petitioner said to be the wife of the insured claimed the accidental death benefit of Rs. 1,00,000/- on this policy and she relied on Ex. A1 to A13. There is no dispute with regards to Ex. A2 to A13 and all these documents will not support the case of the complainant. The only question is whether the complainant, who is said to be the wife of the insured i.e. the deceased K. Babu Reddy, is entitled to receive the accidental death benefit of Rs. 1,00,000/- from the respondents or not. Ex. A1 clearly indicates that the deceased / insured nominated Smt. K. Yanamma and it was specifically mentioned in the Ex. A1 that she is the wife of Kudumula Babu Reddy insured / deceased. The complainant at any point of time never tried to adduce evidence to strengthen her case stating that she is the wife of the insured / deceased her name is also called as yanamma in her correspondence and she never tried to state that she and Yanamma are one and same. Contra she criticized the authorities that her name is wrongly printed as Yanamma and she failed to substantiate this contention. As per Ex. A1 K. Yanamma wife of the insured / deceased K. Babu Reddy alone entitle to receive the accidental death benefit of Rs. 1,00,000/- from the respondents. Who is this Yanamma, where is she, whether she is another wife of the insured / deceased K. Babu Reddy are not known. If the name of the complainant is wrongly printed on Ex. A1 insurance policy she is expected to approach competent civil court for declaring that she is the nominee of the deceased and she is otherwise called Yanamma also. Since the complainant failed to do so the respondents rightly repudiated the claim vide Ex. A3. While repudiating the claim (Ex. A3) the respondents fairly advised the complainant to approach the customer service officer at Hyderabad, if she has not satisfied with the decision of the respondents in repudiating the claim. Unfortunately the complainant failed to approach the said customer Service officer at Hyderabad to solve her problem in settlement of the claim and she lost a fair chance that could have been helped her if she adduced any evidence in support of her claim and convenience the authority that she and that Yanamma are one and the same. Viewed from any angle the complainant not able to produce evidence in support of her claim as such she deserves no consideration in her favour. The complainant filed a petition U/s 151 of C.P.C to reopen the case and to file a document in support of the complainant in I.A. No. 196/2009. This I.A was allowed on 13-11-2009 and the document filed by the complainant was marked as Ex. A13. The contention of the respondent with regard to jurisdiction needs to be discussed. In the counter filed by the respondents 1 to 3 they stated that the deceased Babu Reddy obtained policy from their branch office of R1 at Yanam. The said branch office coming under the supervision and control of R2 situated at Kakinada and the office of R1 is located at Kalkota. But a branch office of R1 is located at Proddatur and there is no branch office at Kadapa as such there is no jurisdiction to entertain this complaint by this forum. The contention of the respondents with regards to the territorial jurisdiction, in the counter of the respondents itself there is an answer admitted by the respondents who stated that there is a branch office of R1 at Proddatur town which is within the territorial jurisdiction of Kadapa District. So there is a territorial jurisdiction to entertain this complaint by this forum since the branch office of R1 is very much located at Proddatur within the jurisdiction of this District Consumer Forum, Kadapa. Hence, the point is answered accordingly.

8. Point No. 2 In the result, the complaint is dismissed without costs.



Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open forum, this the 18th January 2010

C.C.No.93/2009
Between
1. Putta. Rajasekhar Reddy,

S/o. P. Krishna Reddy,

Hindu, aged 45 years,

1-567, Kadapa Road,

Piler,

Chittoor District.

2. Subbireddigari Ravindranath Reddy,

S/o. S. Bhaskar Reddy,

Hindu, aged 34 years

1-45, Mudupulavemulavaripalli,

Yarraguntalapalli,

Piler,

Chittoor District. … Complainants

And

Branch Manager,

National Insurance Company Ltd.,

PVN Complex, 2nd floor, Seshapeeran Street,

Chittoor. … Opposite party

This complaint coming on before us for final hearing on 12.01.10 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.G.Ramaiah Pillai, counsel for the complainants and Sri.G.Gajendra, counsel for the opposite party, and having stood over till this day for consideration, the Forum made the following:-

ORDER

DELIVERED BY SRI. G.V.RAGHAVULU, PRESIDENT
ON BEHALF OF THE BENCH

This complaint is filed under Sections-12 and 14 of Consumer Protection Act 1986, to pass an order directing the opposite party to pay Rs.2,50,000/- towards damages of the vehicle, to pay Rs.2,00,000/- towards compensation for causing mental agony and to pay Rs.2,000/- towards litigation expenses to complainant No.2.

2. The averments of the complaint in brief are :- The 1st complainant was the original registered owner of TATA Indica vehicle bearing previous registration No.AP26MTR 4327 and present registration No.AP03AD 3399. The vehicle was insured with opposite party under insurance policy bearing No.550904/31/08/6100000782 for the period from 02.12.2008 to 01.12.2009. The said vehicle was purchased by 2nd complainant on 17.03.2009 for his own use from 1st complainant. The 1st complainant paid life tax of Rs.34,440/- valid up to 19.12.2022, and the vehicle was registered as AP03 AD 3399 by the Registering Authority under Form No-24. On 05.04.2009 at about 3.30 p.m. while the said vehicle was proceeding from Tirupati to Piler, an accident took place near Nemaligundlu, near Bhakarapet, due to sudden burst of front tyre, on account of which, the vehicle was lost control, got down the road margin, hit the road side rock and rolled down, resulting heavy impact damages to the vehicle. The persons inside the vehicle Shaik Mubarak and Mohammad Ali and the driver Shaik Faooki sustained injuries. The injured were shifted to Piler Government hospital in 108 Ambulance and Mohammad Ali died later in the hospital. The accident was intimated to Bhakarapet police through hospital intimation No.135/GL dt:05.04.2009 from Piler Government hospital, and a case in crime No.29/2009 under Sections-337 and 279 IPC was registered and investigated into by Bhakarapet police on 06.04.2009. The accident was also duly informed to opposite party and the opposite party deputed insurance surveyor by name B.R.K.Reddy of Vijayawada, to assess the loss of the damaged vehicle and the surveyor submitted his report dt:30.04.2009. The surveyor assessed the net loss at Rs.2,50,000/- and pointed out that the vehicle was transferred from 1st complainant with effect from 17.03.2009 and ownership of transfer was not done in the policy as on the date of accident. The surveyor further pointed out that as per rules the transfer of ownership should be done before 15 days and since the transfer of ownership within the stipulated time was not done, the admissibility of the claim does not arise and it is left to the discretion of the insurers. The 2nd complainant, the present registered owner of the vehicle, submitted claim on 20.04.2009 for the estimated cost of Rs.4,75,386/-, but the opposite party repudiated the claim by letter dt:23.06.2009 addressed to 1st complainant. The 2nd complainant on 21.08.2009 got issued legal notice to the opposite party. The opposite party got issued reply notice dt:02.09.2009 stating that 2nd complainant is not having insurable interest as on the date of accident and there is no contract of insurance and the claim is not maintainable. Hence the complaint.

3. The opposite party resisted the complaint. In the objections filed on behalf of opposite party, while admitting that the TATA Indica vehicle bearing registration No.AP 03 AD 3399 was insured with the opposite party covering the period from 02.12.2008 to 01.12.2009 for the ID value of Rs.3,25,000/- and denying the remaining allegations made in the complaint, it is stated that 1st complainant insured his vehicle with opposite party under package policy for private purpose only. The opposite party does not aware that 2nd complainant purchased the vehicle from 1st complainant for valid consideration on 17.03.2009. Even if it is true, the 2nd complainant has to get the policy transferred to his name from complainant No.1. As per the M.V.Act the transferee shall apply for transfer of policy within 14 days from the date of transfer in the prescribed form to the insurer for making necessary changes in the Certificate of Insurance. The 2nd complainant has not followed such procedure and it amounts to violation of policy for which the opposite party is not liable to pay any compensation to the complainants as it is own damage claim. The opposite party rightly repudiate the claim by letter dt:23.06.2009. The 1st complainant has not issued any notice along with 2nd complainant claiming compensation. Adding 1st complainant is an after-thought. Even 1st complainant is not entitled to claim any compensation as he is not the owner of the ID vehicle as on the date of alleged accident. The complainants are not entitled to any damages and compensation and costs as there is no deficiency of service on the part of opposite party. The complaint is liable to be dismissed with costs.

4. In support of the averments made in the complaint, both the complainants filed their affidavits and got marked Exs.A1 to A11. Ex.A1 is xerox copy of Certificate of Insurance of Private Car bearing No.AP 03 AD 3399 for ID value of Rs.3,25,000/- for the period from 02.12.2008 to 01.12.2009 issued by the opposite party in the name of the 1st complainant. Ex.A2 is xerox copy of Form.24 – B.Register of Motor Vehicle No.AP 03 AD 3399 issued by the Registering Authority, Chittoor, in the name of 1st complainant. Ex.A3 is xerox copy of Certificate of Registration issued by the Additional Registering Authority, Chittoor, in the name of the 2nd complainant for the vehicle bearing registration No.AP03 AD 3399. Ex.A4 is xerox copy of F.I.R No.29/2009 dt:08.04.2009 under Sections-304(A), 337 and 279 IPC of Bhakarapet Police Station. Ex.A5 is xerox copy of Accident Report from Motor Vehicle’s Inspector, Piler, dt:07.04.2009. Ex.A6 is xerox copy of estimation for the repairs of TATA Indica DLS dt:16.04.2009 issued by M.G.Brothers Automobiles Pvt. Ltd., in the name of 2nd complainant. Ex.A7 is xerox copy of Motor Claim Form dt:20.04.2009 submitted by 2nd complainant to the opposite party. Ex.A8 is xerox copy of Motor Final Survey Report dt:30.04.2009 submitted by the surveyor to the opposite party. Ex.A9 is letter dt:23-0-2009 addressed to 1st complainant by the opposite party. Ex.A10 is office copy of legal notice dt:21.08.2009 got issued by the 2nd complainant to the opposite party. Ex.A11 is reply notice dt:02.09.2009 got issued by the opposite party to the advocate for complainant.

5. In support of the case set up in the objections, the opposite party filed his affidavit and got marked the original policy copy issued in favour of 1st complainant as Ex.B1.

6. On behalf of the complainants and opposite party written arguments were filed and we have heard the oral arguments of counsel of both sides.

7. On the basis of pleadings of both sides, the points that arise for determination are:-

(i) Whether there is any deficiency in service on the part of the opposite party towards the complainant No.2?

(ii) Whether the complainant No.2 is entitled to the reliefs as prayed? If so, to what extent?

(iii) To what result?

8. Point No.(i):- The facts which are not in dispute are :- The TATA Indica vehicle bearing registration No.AP 03 AD 3399 registered in the name of 1st complainant was comprehensively insured by the opposite party covering the risk thereof from 02.12.2008 to 01.12.2009 under Ex.B1 policy. During the currency of the said policy, the vehicle met with accident on 05.04.2009 near Nemaligundlu and got damaged. The 2nd complainant gave intimation to the opposite party, and the opposite party deputed surveyor to assess the loss of the damaged vehicle. The accident was also intimated to Bhakarapet police and police registered case in crime No.29/2009 under Sections-337 and 279 IPC. When one of the injured in the accident succumbed to injuries, police altered the Section of Law from 337 and 279 to 304(A), 337 and 279 IPC and issued altered F.I.R. The surveyor submitted the original of Ex.A8 final report assessing the net loss at Rs.2,50,000/-. The surveyor in his report stated that vehicle was transferred from 1st complainant, the original owner, with effect from 17.03.2009, that the ownership of transfer was not done in the policy as on the date of accident and that as per rules the transfer of ownership should be done before 15 days. The 2nd complainant, who purchased the vehicle from 1st complainant on 17.03.2009 got the vehicle registered in his name. The Registering Authority, Chittoor, issued Ex.A2 Form No.24 and Ex.A3 Certificate of Registration in the name of 2nd complainant. The 2nd complainant submitted the original of Ex.A7 Motor Claim Form claiming damages at the estimated cost of Rs.4,75,386/- as per estimation for repairs given by M.G.Brothers Automobiles Private Limited. The opposite party repudiated the claim by addressing Ex.A9 letter to 1st complainant. The 2nd complainant got issued the original of Ex.A10 legal notice to the opposite party calling upon to consider the claim as recommended by the surveyor for payment. The opposite party got issued Ex.A11 reply notice stating that the 2nd complainant is not having insurable interest on the date of accident and since there is no contract of insurance with him for the said vehicle, his claim is not maintainable and there is no relationship of insurer and insured. The complainant then filed the present complaint on 19.10.2009.

9. The contention of the opposite party is that insurance policy was issued in favour of 1st complainant, the original owner, and though 2nd complainant purchased the vehicle, he did not intimate the transfer of the vehicle in his favour for making necessary changes in the Certificate of Insurance and since there is no valid contract of insurance with 2nd complainant on the date of accident for the said vehicle, the claim is not maintainable and they have rightly repudiated the claim. On the other hand, the contention of the complainant’s counsel is that the transfer of policy in favour of 2nd complainant should be treated as automatic as the insurance was for the vehicle and not person. In this connection, he placed reliance in the decisions reported in III(2006) CPJ 273 and II (2004) CPJ 412. In Ajimuddin Vs. New India Insurance Co. Ltd., reported in III(2006) CPJ 273, the Hon’ble Chhattisgarh State Consumer Disputes Redressal Commission held that in view of specific instructions of GIC recommending settlement of claim of transferee owner, notwithstanding non-transfer of policy in his name he is entitled to get compensation under the policy. In Santokh Singh Vs. Oriental Insurance Company Limited reported in II(2004) CPJ 412, the Hon’ble Union Territory Consumer Disputes Redressal Commission, Chandigarh, held that transferee of vehicle and the policy entitled to claim benefit of policy as per circular issued by controlling office of opposite party. In the above decisions, the Hon’ble State Commissions referred circular issued by Tariff Advisory Committee. As per GR-10 of Indian Motor Tariff incorporated by the Tariff Advisory Committee, Mumbai, on transfer of a vehicle, the benefits under the policy in force on the date of transfer shall automatically accrue to the new owner. In the decision reported in II(2004) CPJ 412, the Hon’ble Union Territory Consumer Disputes Redressal Commission, Chandigarh, extracted GR-10. In view of the above decisions, the 2nd complainant is entitled to claim benefit of Ex.B1 policy. The opposite party is bound by the circular issued by GIC. There is absolutely no justification on the part of opposite party to repudiate the claim made by 2nd complainant.

10. For the above reasons, we find that there is deficiency in service on the part of the opposite party towards the 2nd complainant. This point is accordingly answered in favour of the 2nd complainant.

11. Point No.(ii):- In view of our finding on point No.1, the 2nd complainant is entitled to Rs.2,50,000/- towards damages of the vehicle, being the net loss assessed by the surveyor with interest at the present bank rate of 9% from the date of repudiation i.e. 23.06.2009. The 2nd complainant claimed Rs.2,00,000/- towards compensation for causing mental agony to him. In our view, the 2nd complainant is not entitled to any separate amount towards compensation since interest is awarded on the amount of damages from the date of repudiation of the claim. The 2nd complainant is, however, entitled to Rs.2,000/- towards litigation expenses as prayed. Hence, we find that the 2nd complainant is entitled for damages of Rs.2,50,000/- with interest at 9% per annum from 23.06.2009, till the date of realization and Rs.2,000/- towards litigation expenses. This point is accordingly answered.

12. Point No.(iii):- In the result, the complaint is allowed in part directing the opposite party to pay damages of Rs.2,50,000/- (Rupees two lakhs fifty thousands only) with interest at 9% per annum from 23.06.2009, till the date of realization and to pay Rs.2,000/- (Rupess two thousands only) towards costs of the complaint to the complainant No.2 within six weeks from the date of receipt of copy of order.

Typed to dictation by the Stenographer, corrected by me and pronounced in the open Forum this the 28th day of January, 2010.

consumer case(CC) No. CC/09/15
Krishnan.K.
...........Appellant(s)
Vs.

The Branch Manager
...........Respondent(s)


BEFORE:
1. K.T.Sidhiq
2. P.P.Shymaladevi
3. P.Ramadevi


Complainant(s)/Appellant(s):
1. Krishnan.K.


OppositeParty/Respondent(s):
1. The Branch Manager

OppositeParty/Respondent(s):
1. Jayalekha.T.

OppositeParty/Respondent(s):

ORDER
Date of filing :22-01-2009

Date of order :05-01-2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

CC. No. 15/09

Dated this, the 5th day of January 2010.

PRESENT

SRI.K.T.SIDHIQ : PRESIDENT

SMT.P.RAMADEVI : MEMBER

SMT.P.P.SHYMALADEVI : MEMBER



Krishnan.K,

R/at Vaisakh, Thulicheri, } Complainant

Po.Manikoth, Kanhangad.

(Adv. Jayalekha.T, Kasaragod)

The Branch Manager,

National Insurance Co.Ltd, Ganesh } Opposite party

Building, 1st floor, Bantwal Cross Road,

D.K, Karnataka. 574219.

(Adv. U.S. Balan, Kasaragod)

O R D E R

SRI.K.T.SIDHIQ, PRESIDENT

The nutshell the case of the complainant Krishnan is that his stage carriage vehicle bearing Reg.No.KL14/F 4599 insured with opposite party on 22-02-2008 at 8.10 AM hit on electric posts (double posts) belongs to the K.S.E.B and the posts damaged due to accident. The complainant intimated the nature of accident and submitted claim with opposite party along with a certificate issued by S.I. of Police, Rajapuram. The complainant also intimated the accident in the office of the K.S.E.B and their officials visited the spot and a job card was prepared for damages occurred to the electric posts. Since there were no injury to the third party, as per the instruction of police the complainant paid Rs.15,135/- towards the damages caused to the electric posts to K.S.E.B and obtained receipt. The payment was made after due consultation and intimation to opposite party on the basis of the job card prepared by the officials of K.S.E.B. But on submission of the claim with opposite party for the indemnification of said damages, the opposite party repudiated the claim stating that the claim cannot entertained since the ‘survey’ was not conducted before the repairs of the damaged vehicle was carried out and also that for the Third Party Property Damage (TPPD) claim a case has to be filed at the court and only after they receive summons the matter will be further considered. Hence the complaint for a direction to opposite party to pay the sum of Rs.15,135/- with interest, compensation and costs.

2. Opposite party contended that complaint is not maintainable and Motor Vehicles Act provides a separate Forum for redressing the grievance for violation of the contractual obligations. It is further contended that the job card prepared by the K.S.E.B and the certificate issued by S.I. of Police, Rajapuram was not within the knowledge of the opposite party and the same was prepared behind the back and hence not binding on opposite party. Further there is no contractual obligation between K.S.E.B and the opposite party. It also contended that the insurance policy is an Act only policy and as per the policy conditions no liability is cast on the insurance company to pay damages caused by the electric post of the K.S.E.B. At the time of accident the stage carriage was overloaded and hence there is breach of terms of policy. The opposite party later on filed a separate application to amend the version and it was further contended that as per Sec.11 of the policy only a third party can file a case against insurance company for the loss or damage to the life or property and claim preferred by the insured is not sustainable and insured has no right to settle or compromise voluntarily on his own and further seeks reimbursement plus expenses from the company and the third party K.S.E.B, did not file a case before M.A.C.T for the damages caused to their property and the insured compromised the matter without the consent of opposite party. Hence the insured has got no cause of action to file these proceedings either before this Forum or before M.A.C.T and the jurisdiction of this Forum is ousted and the insured had failed to submit the vehicle documents before the opposite party such as driving license of the driver, RC, Fitness Certificate, load challan and the permit. Hence opposite party is not liable to indemnify the damages and pay the amount claimed.

3. On the side of the complainant Exts A1 to A5 marked and Ext.B1 marked on the side of opposite party.

4. The only issue to be settled in this case is whether the opposite party is liable to indemnify the insured/complainant for the payments made by insured to the K.S.E.B towards the damages caused to their electric posts on account of the accident or not?

5. Ext.A1 is the copy of the Insurance Policy. Ext.A2 is the Data sheet prepared by the K.S.E.B estimating the damages caused to the electric posts. As per Ext.A2. Rs.15,135/- is seen calculated towards the replacement of damaged electric posts. Ext.A3 is the receipt issued by K.S.E.B from the Electrical Section Office of Rajapuram to the complainant towards the receipt of Rs.15,135/-. Ext.A4 is the certificate issued by Rajapuram Police with respect to the accident caused to the electric posts by the vehicle bearing Reg.No.KL-14F/ 4599. Ext.A5 is the claim repudiation letter dated 24-03-2008 issued by opposite party to the complainant.

6. Ext.B1 is the copy of the policy including the terms and conditions.

7. The contentions that the jurisdiction of the Forum is ousted and only the M.A.C.T is competent to deal with this case is not sustainable since this complaint is preferred not by any third party but by the insured himself. Hence the complaint is maintainable before Forum. Further in Ext.A5 repudiation letter the opposite party has stated that for the TPPD claim (Third Party Property Damage) claim a case has to be filed at the court, and only after receiving summons the matter will be considered. Except this no other specific reason is stated not to honour the claim. The complainant also had the case that the settled he settled the payment made to K.S.E.B towards the damages caused to the electric posts after due consultation and intimation to opposite party.

8. Opposite party advanced a further contention that if at all they are liable to pay any damages, then their liability is limited to Rs.6000/- in view of Sec 147 (2)(b) of Motor Vehicles Act. The counsel for opposite party relied on the following decisions to support his contention United India Insurance Co. Ltd. V. K. Raveendran Nair & Others reported in 2003 ACJ 2159, of United India Insurance Co. Ltd V. R. Narayana Reddy & another 2001 ACJ 1920, etc. The said contention is also not acceptable since the policy under which the claim is preferred by the complainant /insured is a comprehensive/package policy and it’s limits of liability under Section II (i) in respect of any one claim or series of claims arising out of one event is Rs.7,50,000/-. Moreover no evidence is brought before us to showing any violation of policy conditions to exonerate or limit, the liability of opposite party.

9. The Ext.A3 is the official receipt issued by K.S.E.B for receipt of Rs.15,135/- towards the expenses for the replacement the electric posts as calculated in Ext.A2 estimate. We do not find any reason to disbelieve those documents. The Hon’ble Kerala State Consumer Disputes Redressal Commission had an occasion to consider similar issue in (Appeal No.409/2002). New India Assurance Co. Ltd V. P.B. Raghunath decided on 8-4-08 (confonet). In the said appeal the Hon’ble State Commission directed the insurer to pay the amount paid by the insured to K.S.E.B for the electric post damaged in the accident.

In view of the above discussion we allow the complaint and direct the opposite party to pay Rs.15,135/-to the complainant along with a cost of Rs.3000/-. Time for compliance is limited to 30 days from the date of receipt of copy of the order. Failing which the above Rs.15,135/- will carry interest @ 12% per annum from the date of complaint till payment.

CC.No.97/2009

Dated of this 19th day of January 2010

Present:

Sri.K.M.Thammaiah President

Sri.D.Shivamahadevaiah Member

Smt.Girija Lady Member

Between:

J.V.Nagaraj s/o. Venkataramaiah,

Aged about years Complainant

R/o. Jaladagere, Yediyur post,

Kunigal taluk

(By Sri.N.C.Gangadhar Shastry, Advocate)
AND
National Insurance Company Ltd,

Behind Krishna Talkies,

Abutting to Krishna Choultry, Opposite party

M.G.Road, Tumkur

Insurance policy No.3665201/603900

Policy valid from 18-3-2008 to 17-03-2009

(By Sri.M.S.Chandrashekharaiah, Advocate)


ORDER

This is a complaint filed Under Section 12 of the Consumer Protection Act, 1986 (hereinafter called as Act for short)

2. Through this complaint, the complainant prays for an order against the Opposite Party (hereinafter called as the OP for short) to award a compensation of Rs.75,000/- towards loss of income for 5 months; to reimburse a sum of Rs.53,250/- towards damages and deficiency of service caused to him. The total claim of the complainant is Rs.1,28,200/-.

3. The facts given rise to institute the complaint may be summarized as thus:

It is claimed that he is the RC owner of Maruthi Omni vehicle bearing Reg.No.KA-06-B 2102, with chassis No.830077 and Engine No.3749604. He had insured the said vehicle with the OP and the policy was valid from 18-3-2008 to 17-3-2009.


4. It is further contended that, on 3-3-2009, at about 5 AM, one Venkatesh was driving the said vehicle and it was proceeding towards Yediyur from Bangalore. When the said vehicle reached near Lupitha Daba infront of Mariyappa Garden on NH-48, on account of the rash and negligent driving of the driver, it dashed against the road side stone. Due to the accident, the said vehicle was capsized and fell into a ditch (Halla) and driver/Venkatesh had sustained minor injuries. However, the said vehicle was severally and completely damaged.

5. It is further contended that, the said accident was intimated to the OP and a complaint was lodged. The same was registered as C.R.No.72/2009. After investigation a final report was filed by the Kunigal police station. It is further contended that, after the accident, he has approached the OP with the policy records and sought for settlement of claim. The said policy covered all types of risks. The OP dodged the matter to settle the claim on flimsy reason and finally a sum of Rs.1,18,000/- was assessed towards complete damages of the vehicle. Out of the said assessment, the OP has disbursed only Rs.85,500/- to the dealer M/s. Saketh Automobiles, Tumkur. The said M/s. Saketh automobiles was not ready to hand over and deliver the repaired vehicle to him as the balance amount of Rs.53,250/- had to be paid either by the OP or the complainant. Accordingly, the said balance amount was paid by the complainant to the M/s. Saketh Automobiles and then only the repaired vehicle was delivered to him. Inspite of repeated requests and demands made to the OP to pay the difference amount of Rs.53,250/- it was turned down orally by the OP.

6. It is further contended that, the OP authorities have visited the spot and conducted the survey. The complainant had left the damaged vehicle to M/s. Saketh Automobiles at Tumkur for repairs. The said automobiles had issued a service estimation/quotation for repairs of Rs.1,18,000/- and the said vehicle was repaired. Instead of paying full repaired amount of Rs.1,18,000/-, only Rs.88,500/- was disbursed to the said automobiles. The complainant had also submitted the claim form alongwith RC, FC, TC, DL of the driver and policy. The OP has partly settled the claim of Rs.88,500/-.



7. It is further contended that, the OP denied the reimbursement claim and so far, the OP has not complied with the request of the complainant for remaining compensation/insurance claim. As such, the OP committed default in giving good service to the complainant and in the result, there is deficiency of service from the OP. The OP having protracted to settle the claims of the damaged vehicle, the said vehicle was kept idle without repairs the at M/s. Saketh Automobiles, Tumkur. The said vehicle was not used for his day to day earning.. After the accident of the said vehicle and for non issuance of damaged claims, the vehicle was exposed to sun, air, light dust for about 5 months and there was a loss of earning for 5 months to the tune of Rs.75,000/-. Hence, he claimed total compensation of Rs.1,28,200/-.


8. It is further contended that, inspite of the insurance coverage and valid policy as on the date of accident, the OP has repudiated the claim without genuine reasons. Hence, this complaint.

9. The OP who has been notified of the complaint put in their appearance trough their counsel and resisted by the same by filing his objections.

10. The gist of the OP objections is as follows:

In the objections filed by the OP, it is alleged that, the complaint is not maintainable in law or on facts and the same is liable to be dismissed. This OP while emphatically denying the complaint averments as false and untenable, interalia admitted the accident of the vehicle bearing Reg.No.KA-06-B-2102 on 3-3-2009; the estimate of the repairs produced by the dealer on 10-3-2009 and submitted to OP’s office on 13-3-2009, further contended that, on the same day surveyor was appointed by the company.

11. It is further submitted that, the insurance policy was valid as on the date of accident. The complainant willfully neglected the terms and conditions of the policy by carrying the load of news papers at the time of the accident. The complainant’s vehicle, as per the RC is a Luxury taxi and it is a passengers carrying vehicle. He used the vehicle against the terms and conditions of the policy.


12. It is further submitted that, the complainant has submitted the bills for total repairs to the vehicle to extent of Rs.1,41,445/-. From the date of registration of the vehicle and as per motor tarrif, the metal parts attract the depreciation of 10% and rubber parts attract a depreciation of 50% . Considering all these factor, the surveyor has assessed the loss to the vehicle due to the accident to be Rs.1,18,000/- and out of the total bill amount, the insured is required to pay the dealer after deducting the amounts towards depreciation and salvage.

13. It is further submitted that, in this case, passengers carrying vehicle was carrying goods at the time of accident and the claim was settled on non-standard basis at 75% of the amount payable and the company has paid Rs.88,500/- to the dealer. The OP approved the claim and subsequently paid the amount of Rs.88,500/- to the dealer. Thus, it is claimed that, there is no delay on the part of this OP to settle the claim or any deficiency in service. The complainant has used the vehicle against the terms and conditions of the policy. This fact was clearly narrated in the FIR and other relevant documents. Accordingly, he prays for dismissal of the complaint with exemplary costs.

14. In support of the case, the complainant and OP have filed their affidavits and the documents produced by the complainant and the OP came to be marked as Ex.P-1 to 5 and Ex-R-1. We have heard the learned counsel appearing for the parties. We have also examined the materials available on record.

15. The questions that arise for our considerations are:

1. Is there any deficiency of service by the OP?

2. Is the complainant entitled for the relief as prayed for?

16. Our findings on the above questions are here under:

Point No.1: Yes

Point No.2: As per order

REASONS

17. At the very threshold, we must point out that, as on the date of accident, the insurance coverage of the vehicle was in force and the complainant had informed the OP about the accident and the damages caused to the vehicle. The OP inturn appointed a surveyor to assess the loss. The survey who conducted the survey, assessed the loss of the vehicle at Rs.1,18,000/-. Out of this amount, the OP had paid a sum of Rs.88,500/- to the dealer and the remaining amount of Rs.53,250/- came to be repudiated. The contention of the OP is that, at the time of accident, the vehicle was carrying a load of news paper and it was against the terms of the policy. From the documents produced by the complainant, which was came to be marked as Ex.P-5, it is seen that, one K.N.Govinda, a contractor of the printers (Mysore Pvt. Ltd) Deccan herald had carried a load of new paper in this vehicle. Therefore, it cannot be said that, the vehicle was used against the terms of the policy. Admittedly, the vehicle was luxury taxi as per RC and if a person travels in that vehicle alongwith his language, it cannot be said that, there is a violation of terms of the policy. As against, the OP has not produced any iota of evidence to indicate that, the vehicle was used for commercial purpose and at the relevant point of time, the vehicle in question was carrying load of news paper against the terms and conditions of the policy. Admittedly, the vehicle in question was driven by the complainant’s driver Venkatesh and he had valid driving licence. Therefore, it cannot be said that, the complainant is guilty of violation of the terms and conditions of the policy.

18. It is pertinent to note that, the National Consumer Redressal Disputes Commission, New Delhi - in a decision reported in CTJ 2009 (NCDRC) 171 has held “The report of insurance surveyor is an important document and it cannot be wished aside without any compelling evidence to the contrary”. When the surveyor had assessed the damages at Rs.1,18,000/- and the OP had made part payment of Rs.88,500/- to the dealer of the vehicle, he should have shown valid reasons for repudiation of the claim of the complainant. The repudiation of the claim of the complainant by the OP as has observed above is proved to be flimsy and unrealistic. Therefore, the OP was not justified in repudiating the claim of the complainant.

19. In so far as, the claim of the complainant for loss of income is concerned, he has not placed any acceptable or worth mentioning evidence. In the absence of such material, it cannot be said that, he is entitled to an award for Rs.75,000/- towards loss of income.

20. The OP instead of honouring the genuine claim of the complainant without delay has repudiated the claim on flimsy and unreasonable grounds. This has caused mental agony and reasonable loss of income to the complainant. However, for the lapses of the part of the OP in not settling the claim without any unreasonable delay, we are of the opinion that, the OP is liable to be saddled with punitive damages. Under the circumstance of the case, we quantify the punitive damages at Rs.30,000/-.

21. Being that opinion, we proceed to pass the following:
ORDER

The complaint is allowed in part with costs, directing the OP to pay a sum of Rs.53,250/- towards damages of the vehicle and Rs.30,000/- as punitive damages to the complainant, within 8 weeks from the date of this order, failing which, the above said amount shall carry an interest at 6% per annum from the date of this complaint. The costs of the proceedings is quantified at Rs.1,000/-. It is furthered ordered that, out of punitive damages of Rs.30,000/- a sum of Rs.10,000/- shall be deposited in the “Consumer Legal Aid” account maintained by this office and remaining amount shall paid to the complainant.

Dictated to the stenographer, typed by him, corrected and pronounced on open forum this 19th day of January 2010.

COMPLAINT NO.2597 OF 2009

Malathi Saroj

W/o Anil Kumar,

No.90/101, 4th Main Road,

13th Cross, Malleswaram,

Bangalore – 560 003.

…. Complainant.

V/s



National Insurance Company Limited,

Division Office – IV, Code : 603900,

No.16, Kumara Krupa Road,

Near Shivananda Circle,

Bangalore – 560 001.

Represented by Divisional Manager,

…. Opposite Party



-: ORDER:-



This complaint is filed claiming Rs.1,50,000/- including Rs.71,471/- towards reimbursement of the medical expenses form the Opposite Party on the following grounds:-



The complainant has taken medi claim insurance policy from the Opposite Party in the year 2007 and under the policy it was covered for all types of medical ailments. A few months back during routine check ups at Manipal Northside Hospital, Malleswaram, Bangalore, the complainant was diagnosed with urinary tract infection with Emphysematous Pyelonephritis. She was admitted to the hospital and remained in ICU for about three days under medical supervision and thereafter shifted to the ward. She was in the hospital from 25/07/2009 and 03/08/2009. During the course of treatment it was also noticed that the complainant is a diabetic, but the urinary tract infection is not as a result of any prehistory of diabetes. During the stay in the hospital a claim form was submitted for a sum of Rs.71,471/- which is the amount incurred towards the treatment. All the relevant information was furnished for settlement of the claim. But the Opposite Party repudiated the claim on the ground that it is a complication of diabetes which is preexisting despite the Doctor clearly stating that the present illness or ailment is not due to any pre history of diabetes. The complainant immediately approached the treating Doctor seeking information and he stated that the present illness is not due to any prehistory of diabetes. In the discharge summary also there is a clear mention that the ailment is not due to any condition of the previous history of diabetes. The husband of the complainant also addressed a letter dated 05/10/2009 requesting the Opposite Party to settle the claim. But the O.P. gave on 22/10/2009 rejecting the claim. Though the complainant is a diabetic for about five years, the urinary tract infection and other complications are not as a result of pre existing history of diabetes. Due to the rejection of the claim, the complainant suffered mental, emotional and financial stress. Apart from the medical bill, she incurred several expenses totaling upto Rs.1,00,000/-. She also claims Rs.50,000/- as compensation towards mental agony. Hence, the complaint.

3. In the version the contention of the Opposite Party is as under:-

The policy was issued in favour of one Mr.A.N.Anil Kumar for the period from 15/09/2008 to 14/09/2009 and the liability of the Opposite Party if any is subject to the terms and conditions of the policy. The claim of the complainant for Rs.1,50,000/- is not maintainable either in law or on facts. The husband of the complainant has obtained medi-claim policy and the complainant was admitted in the Manipal North side Hospital at Bangalore on 25/07/2009 and she was discharged on 03/08/2009 with complaints of Urinary Tract Infection and major line of treatment which is known complication of diabetes. As per the discharge summary issued by the hospital, the complainant is suffering from diabetes and was under medication since 3-4 years. The complainant has submitted claim form to TPA declaring that she has been suffering from diabetes since six years. Therefore all the pre-existing diseases are excluded under the insurance policy and as such the Opposite Party is not liable under the policy of insurance. The discharge summary and the claim form clearly establish that the complainant was suffering from diabetes prior to inception of policy and had taken Ayurvedic treatment. The expenses for the said ailment, was excluded under the policy and therefore the claim of the complainant is not payable. As such the TPA has rightly repudiated the claim of the complainant on 03/09/2009. As per condition No-4.1 of the insurance policy, the benefits of pre-existing diseases will not be available for any conditions until 36 months of continuous coverage has elapsed since inception of the first policy. Therefore the present complaint is not maintainable.



4. In support of the respective contentions, both parties have filed affidavits and have produced copies of documents.



5. The points for consideration are:-



1. Whether the complainant has proved deficiency in service on the part of Opposite Party?

2. Whether the complainant entitled to the relief prayed for in the complaint?

6. Our findings are:-

Point No.(1) : In the Affirmative

Point No.(2) : As per final order,

for the following:-

-:REASONS:-

7. Admittedly under the Medi-claim policy obtained by the husband of the complainant, the complainant is also a member. From the copies of the insurance policy produced by the complainant it is seen that in the first instance the policy was obtained for the period 07/09/2007 to 06/09/2008 and the second policy is obtained covering the period from 15/09/2008 to 14/09/2009. The complainant was hospitalized between 25/07/2009 and 03/08/2009 during subsistence of the second insurance policy obtained by the husband of the complainant. In the discharge summary it is stated that the complainant is suffering from diabetes and HTL since 3-4 years and was under Ayurvedic treatment. The complainant also admits that she was suffering from diabetes prior to the inception of the policy. But her hospitalization between 25/07/2009 and 03/08/2009 was for treatment for Urinary Tract Infection. In the letter dated 30/09/2009 while rejecting the claim, the Opposite Party has stated that the patient is admitted mainly with complaints of Urinary Tract Infection and major line of treatment is also for the same ailment which is known complication of diabetes and which is pre-existing and therefore the claim is repudiated under the Clause 4.1 of the policy conditions. Therefore according to the Opposite Party, the Urinary Tract Infection is a complication of diabetes which is admittedly pre-existing. But in the medical certificate issued by the attending Doctor, in Column No-11 it is clearly stated that the present disease is not the complication of pre-existing disease. Column No.11 of the certificate issued by the attending Doctor is as under:-

“Is the present disease suffered connected to previous, disease or Diabetes, Hypertension (Blood Pressure), Surgery or other existing disease?:-.

Against the said Column, the Doctor has recorded the answer as “NO”, which means that the present ailment of the complainant was not connected to previous disease or diabetes or Hypertension. On the face of this certificate issued by the treating Doctor and in the absence of material, we are unable to uphold the contention of the Opposite Party that the Urinary Tract Infection suffered by the complainant is the complication arising out of diabetes with which the complainant was suffering from even prior to the inception of the policy. Except stating in the letter dated 30/09/2009 namely the repudiation letter that the Urinary Tract Infection is a known complication of diabetes, no other supporting material is produced by the Opposite Party. Therefore, we are not convinced that the Opposite Party has repudiated the claim of the complainant on valid reasons. As such in our opinion the repudiation of the claim is unjustified and this act of the Opposite Party amounts to deficiency in service. From the medical bills it is seen that the complainant has spent Rs.71,471/- towards treatment and therefore she is entitled to claim reimbursement of the said amount from the Opposite Party as per the terms of the medical policy. However, the complainant is not entitled to any compensation as claimed as the same is not covered under the policy. In the result, we pass the following:-



-:ORDER:-

1. The complaint is allowed in part.

2. The Opposite Party is directed to pay Rs.71,471/- to the complainant towards reimbursement of the medical expenses together with interest at 9% Per Annum from 30-09-2009 – the date of repudiation till the date of payment and also to pay costs of Rs.2,000/-.

3. Compliance of this order shall be made within eight weeks from the date of communication.

4. Send a copy of this order to both parties free of costs, immediately.

5. Pronounced in the Open Forum on this the 29th Day of JANUARY 2010.

sir,
I beg to state that I Anita Roy ,w/o - Late Dulal Roy, vill+ p.o- Nigamnagar,p.s- Dinhata,Dist- Cooch Behar my husband have a Body Insurance Police her police no- 100300/47/01/9600022/01/96/00428,Period of cover from- 01/02/2002 to 31/01/2017,serial no- 01293511/200102426494,Claim on -23/06/2008 but no result at a time