Surender Pal son of Sh,. Mohan Singh resident of House No.78/3 M.G. Road Mandi, District Mandi, H.P.

…Complainant


V/S

National Insurance Company Ltd , Mandi, District Mandi, H.P. through its Manager Moti Bazar Mandi, District Mandi, H.P.

…..Opposite party





For the complainant Sh. Bimal Sharma ,Advocate

For the opposite party Smt. Kiran Narula, Advocate.


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

ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he is registered owner of Matiz car No.HP-33-7732. The complainant got the vehicle duly insured with the opposite party with effect from 6-11-2006 to 5-11-2007.. The car in question met with an accident on 21-8-2007 at Chandigarh and huge loss was caused to the car . The complainant informed the opposite party who deputed its Surveyor to inspect the vehicle who inspected the car in a haste and submitted a wrong report to the opposite party by showing the loss to the tune of Rs.9,000/- whereas he had spent Rs.26,000/- on account of repair and also paid Rs. Rs.4000/- to the Surveyor . It has been averred that new parts of the car were not available in the market and ,therefore , old parts were purchased by the complainant and spent Rs.21,000/- due to which the bills could not be procured . It has also been alleged that a sum of Rs.5000/- were paid as labour charges . The complainant requested the opposite party to appoint second surveyor as he was not satisfied with the report of the said surveyor . It has been averred that the complainant was not compensated by the opposite party to the tune of loss suffered and was forced to accept the amount of Rs.9000/- which is negligible . It has further been averred that the production of Matiz car had come to an end as the company had been taken over bythe General Motors which is the cause of non availability of the new parts . It has further been averred that he had spent a sum of Rs.30,000/- in all and non payment of the same by the opposite party amounts to deficiency in service .With these averments , the complainant had sought a direction to the opposite party to pay Rs.30,000/- alongwith interest at the rate of 12% PA and also to pay Rs.10,000/- as litigation charges and Rs.5,000/- as cost.


2 The opposite party resisted the complaint by filing reply in which preliminary objections have been raised that the present complaint is not maintainable and the complainant is not a consumer within the ambit of the Act, that the complainant has not been able to substantiate and justify his assessment with genuine documents alongwith salvage of the alleged replaced parts despite ample opportunity afforded to him and even bills of spare parts had not been submitted and in this way no option was left to the opposite party except to close the file as “ No Claim” and that complex questions of law and facts are involved in the complaint which can be decided by the Civil Courts. On merits it has been denied that the Surveyor had inspected the impugned vehicle in haste, as alleged . It has been averred that the vehicle was inspected by the Surveyor in the presence of the complainant and assessed the loss of vehicle after due consideration of the estimates . It has been denied that the report of independent and duly licensed surveyor was wrong . It had been denied that a sum of Rs.28,000/- was spent for repair and Rs.4000/- was given to surveyor ,as alleged . It has also been denied that new parts of the vehicle were not available in the market as alleged by the complainant . It had further been denied that a sum of Rs.21,000/- was spent on account of purchase of old parts . Spending of Rs.5000/- as labour charges had also been denied . It has further been averred that the surveyor had assessed the loss as per actual damages . The complainant had not even fulfilled the codal formalities despite several reminders . The opposite party had denied that a sum of Rs.30,000/- has been spent by the complainant for repair . It has further been averred that the opposite party is ready to deposit the amount assessed by the surveyor before this Forum as full and final settlement of the claim as assessed by the surveyor subject to submission of the bills of the spare parts .The opposite party had prayed for dismissal of the complaint .



3. The complainant had filed rejoinder reiterating the averments made in the complaint and controverting the averments made in the reply by the opposite parties.


4. We have heard the ld. counsel for the parties and have carefully gone through the entire record. The case of the complainant is that he is registered owner of vehicle bearing No. HP-33-7732 which met with an accident at Chandigarh on 21-8-2007 during the currency of the insurance policy and he spent a sum of Rs.26,000/- on account of purchase of old parts as well as repair of the vehicle . Further, case of the complainant is that he had paid Rs.4000/- to the Surveyor for conducting survey but the surveyor had assessed the loss to the tune of Rs.9000/- which is not acceptable to him. On the other hand, the case of the opposite party is that on receipt of the information of accident, it had deputed Surveyor for conducting survey and he had assessed the loss of the vehicle thoroughly after due consideration of the estimates and the competitive prices of the spare parts with the concerned dealer. The opposite party had denied that the complainant had spent Rs.26000/- for repairs and paid Rs.4,000/- to the surveyor . The opposite party had also denied that the complainant had purchased old parts of the vehicle worth Rs.21,000/- as new parts were not available in the market . The opposite party had further contended that since salvage and bills of replaced parts had not been submitted despite several requests, assessed amount was not paid to the complainant. The onus was upon the complainant to prove that he has spent Rs.21,000/- for purchase of old parts and Rs.5000/- as labour charges but he had not filed even a single document in support of his complaint. No cash memo / bill has been placed on record by the complainant regarding the purchase of the old parts of the vehicle. What to speak of evidence the complainant has not even adduced in evidence even certificate of dealer showing that new parts were not available in the market . In the absence of documentary evidence it is difficult to believe the version of the complainant that he had spent Rs.26000/- on account of repair. It is relevant to make mention here that , it is the own case of the complainant that since new parts of the vehicle were not available in the market he had purchased old parts worth Rs.21,000/- and could not procure the bills of the same as the same were old one . The opposite party in its reply had denied in toto that new parts of the vehicle were not available in the market Therefore, it was for the complainant to prove that the new parts of the vehicle were not available in the market but no material has been placed on record in this respect. Since it is the admitted case of the complainant that the bills of parts were not available it is difficult to believe that this much amount has been spent by him for purchase of the vehicle . The complainant has also not filed any receipt with regard to payment of Rs.4000/- to the Surveyor . On the other hand , the opposite party had placed on record the report of Sh. Inder Pal Singh ,Surveyor and Loss Assessor which shows that he assessed the indemnity at Rs.9091.38 paisa and after deduction of Rs.2500/- as less imposed excess, he assessed net payable amount at Rs.6591.38 paise . It is settled law that the report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons. The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kirana Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor dated 30-9-2007 duly supported by the affidavit of Surveyor and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle is Rs.6591/-.



5 In the light of above discussion, the complaint is partly allowed and the opposite party is directed to pay Rs.6591 /- with interest at the rate of 9% p.a. from the date of filing of the complaint till realization and also to pay Rs.2000/- as damages for harassment and Rs..1000/- as costs of litigation

1. Smt. Kunta Devi
2. Shri Jagfdish Chand
3. Shri Mohan Dutt
All Resident of Village Sheenaghat, P.O. Kujji, Tehsil Pachhad, District Sirmour, H.P.

… Complainants.
Versus

The National Insurance Company Limited, The Mall Solan, through its Branch Manager.

…Opposite Party.

Coram

Shri Pritam Singh (District Judge) President.
Ms. Vanita Singh, Member (Female)
Shri Satish Kumar Gupta, Member (Male)
…………………………………………………………………………
For the complainant: Mr. M.Iqbal, Advocate.
For the Opposite Party: Mr. V.R. Chauhan, Advocate.

O R D E R
Pritam Singh (District Judge) President:- This order shall dispose of complaint filed under section 12 of the Consumer Protection Act, 1986. It is alleged that the predecessor in interest of the complainants was the registered owner of the tractor bearing registration No.HP-16-0393, which was duly insured with the OP-Company vide insurance policy bearing No.31-247379 effective from 13.12.2004 to 12.12.2005. That on 10.01.2005, the aforesaid tractor was parked by its driver and on 11.01.2005 they noticed that the said tractor on account of damage/collapse of retaining wall has met with accident and gone off the road and sustained damages. That the factum of accident was brought to the notice of the OP-Company. The insurance claim was preferred and documents were submitted for settlement of the insurance claim. But, the OP-Company instead of settling the insurance claim, dilly-dallied the same on one pretext or other. Hence, feeling dissatisfied and aggrieved by the act of the OP-Company, the complainant perforce filed this complaint against the OP-Company.



2. The complaint is resisted by OP-Company who while filing reply took some preliminary objections regarding maintainability of the complaint and validity of the driving licence of the driver. On merits, they alleged that the tractor was being driven by one Shri Vinod Kumar who did not possess valid and effective driving licence. That the claim preferred by complainant was highly exaggerated without any basis as the surveyor after conducting survey assessed net loss to the tune of Rs.15,547/-. Thus, there being no deficiency in service, the complaint is sought to be dismissed.



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



4. It may be stated that there is no dispute regarding issuance of insurance policy of vehicle in question in favour of the predecessor-in-interest of the complainants late Shyam Dutt as is evident from the copy of the insurance policy Annexure –A/OP-1 placed on record by parties. As per this policy, the tractor in question was insured for a sum of Rs.1,96,750/- valid from 13.12.2004 to 12.12.2005. The factum of rolling down of tractor from the place where it was parked by its driver is also not disputed. However, the case of the OP-Company is that the driver Shri Vinod Kumar did not possess valid and effective driving licence to drive the tractor in question and as such they were well within their right to decline the claim of the complainant.



5. However, as per the report of the surveyor dated 01.03.2005 Annexure OP-3 he reported that as per FIR the vehicle was parked and due to sudden collapse of dangga, it rolled down to a deep khud and sustained damages. This fact is also evident from the copy of rapat No.4 dated 15.01.2005 lodged at Police Station Pachhad. Thus, when the tractor was parked on the road side and due to sudden collapse of danga, it fell into deep khud and sustained damages, it is not understood as how the OP-Company came to the conclusion that the driver of the tractor Shri Vinod Kumar was not having valid and effective driving licence to drive the same, who in fact was not driving it when it rolled down to nearby khud. Therefore, the defence of the OP-Company that the driver of the tractor Shri Vinod Kumar was not having valid and effective driving licence to drive the tractor in question, does not appear just ground to deny the genuine insurance claim of the complainant and the repudiation of the insurance claim of the complainants on this illegal ground is not tenable.



5. According to the complainant he spent Rs.39,562/- on repair of tractor to make it road worthy. He also placed on record the photo copies of the bills in support of his claim. But he did not file the affidavit of the person from whom the vehicle was got repaired and obtained receipts regarding actual payment of repairs. On the other hand, the OP-Company has placed on record and relied upon the report of the surveyor dated 01.03.2005 Annexure OP-3 vide which he has recommended net loss of Rs.15,547/- to be paid to the complainant. The surveyor being independent person and his report remained unrebutted, we are of the considered view that the complainant is entitled to be indemnified by the OP-Company to the extent of Rs.15,547/- together with interest.



6. For the foregoing reasons, we allow this complaint and direct the OP-Company to indemnify the complainants to the extent of Rs.15,547/- along with interest at the rate of 9% per annum from the date of filing of the complaint, which happens to be filed on 06.07.2006, till making full payment of aforesaid amount. In addition to this, the OP-Company shall also pay Rs.2,000/- as costs of litigation 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.

Smt. Kanta Kaushal W/O Shri Surinder Kumar Kaushal R/O V.P.O. and Sub Tehsil Ramshahar, District Solan, H.P.

… Complainant
Versus

National Insurance Company Limited
S.C.O. 133-135, Second Floor Sector 17-C,
Chandigarh, U.T. through its Branch Manager.


…Opposite Party

Coram

Shri Pritam Singh (District Judge) President.
Mr. Varinder Thakur, Member (Male)
Ms. Aruna Sharma, Member (Female)
………………………………………………………………………

For the complainant: Mr. J.S. Parmar, Advocate.
For the Opposite Party Mr. Ravinder Tiku, Advocate.


O R D E R:
Pritam Singh (District Judge) President:-


1. This order shall dispose of the complaint filed under section 12 of the Consumer Protection Act, 1986. It is alleged by the complainant that she is owner of vehicle Modal Tata Spacio Euro-II car bearing temporary registration No. CH-01T-0710 which wasduly insured with the OP-Company vide insurance policy bearing No.GG31/400509160952 dated 10th January 2007 effective from 10.01.2007 to 09.01.2008. That on 16th January 2007, she sent her vehicle for installation of the accessories from Ramshehar to Hind Motors Limited Chandigarh and when the vehicle was on its way to Chandigarh and reached at place near Amb Pani at about 8.30 AM, suddenly the stray cow came on the road and the driver who wanted to save stray cow could not control vehicle, which met with a fatal accident and sustained extensive damage. That she reported the matter to the police of Police Station Ramshehar and intimation in this behalf was also sent to the OP-Company. It is alleged by her that she spent Rs.2,62,122/- on the repairs of the vehicle to make it road worthy, and thereafter, preferred the insurance claim with the OP-Company. But the OP-Company instead of settling her genuine insurance claim, repudiated the same on frivolous ground. Hence, feeling dissatisfied and aggrieved by the act of the OP-Company, the complainant perforce filed this complaint against the OP-Company.



2. The OP-Company while filing reply resisted the complaint and took some preliminary objections regarding maintainability of the complaint, and status of the complainant as a consumer etc. On merits, they alleged that the complainant had not obtained the route permit from the competent authority to ply vehicle at the relevant time, therefore, it being breach of terms and conditions of the insurance policy, the insurance claim of the complainant was rightly repudiated by them. Hence, there being no deficiency in service, the complaint is sought to be dismissed. Thereafter the parties led oral and documentary evidence in support of their claim/counter claim.



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



4. It may be stated that undisputedly, the vehicle Modal Tata Spacio Euro-II bearing temporary registration No.CH-01T-0710 owned by the complainant was duly insured with the OP-Company vide insurance policy bearing No.GG31/400509160952 dated 10th January 2007 effective from 10.01.2007 to 09.01.2008 against payment of premium of Rs.16,148/-. Admittedly, the insurance policy had been taken by the complainant for using the aforesaid vehicle as a taxi. It is the case of the complainant that on 16.01.2007, she sent her vehicle from Ramshehar to Hind Motors Limited, Chandigarh for installation of the accessories and when the vehicle was on its way to Chandigarh and it reached at place Amb Pani at about 8.30 AM, suddenly stray cow came on the road and the driver who wanted to save the stray cow could not control vehicle and met with fatal accident and sustained extensive damages. Undisputedly, the insurance claim was also lodged by complainant, and the OP-Company appointed surveyor and loss assessor to ascertain the cause of accident and assess the loss sustained to the vehicle in this accident who also after conducting survey assessed the net loss and submitted his report. But, the OP-Company instead of settling the genuine insurance claim repudiated it on the ground that the complainant was not having valid route permit at relevant time when this accident took place.



5. The OP-Company in their reply also specifically alleged that as the insured had not obtained the route permit from the competent authority, therefore, it being breach of terms and conditions of the insurance policy, the insurance claim of the complainant was rightly repudiated by them.


6. But, as already stated above, the vehicle in question had not yet been registered by RLA and the temporary number had been issued to the aforesaid vehicle at the time when it was purchased by complainant. However, this vehicle was duly insured with the OP-Company as is evident from the insurance cover note Annexures R-5 & D placed on record by the parties. The complainant, had admittedly applied to the Licensing & Registration Authority for issuing regular registration certificate of the vehicle in question as temporary registration number was issued to her by vendor, as is evident from the copy of form Under Rule 4.13 (4) of the Motor Vehicle Rules Annexure-B. Undoubtedly, the complainant intended to use the vehicle as a taxi as & when it was registered by RLA.



7. No doubt, as per the contents of the rapat Annexure-E lodged with the Police at Police Station Ramshehar, two other person were also present in the vehicle at the time of the accident. According to OP-Company these persons were passenger in fact being carried by the driver in the vehicle, it being taxi. But this allegation has been specifically denied by the complainant Smt. Kanta Kaushal in her affidavit filed in support of her complaint.



8. But, the vehicle in question had not yet been registered by the competent Registering and Licensing Authority, therefore, the question of obtaining the route permit by the complainant before getting it registered, does not arise. Thus, in the circumstances the sole illegal ground taken by the OP-Company for repudiating the genuine insurance claim of the complainant is not legally tenable.



9. Admittedly, when the insurance claim was preferred by the complainant, the OP-Company appointed Er. Vinod Kumar Sharma, Surveyor & Loss Assessor to conduct the survey and to assess the loss caused in this accident who submitted his report Annexure R-1 dated 28.03.2007 placed on record by the OP-Company. As per this report, the net loss caused to the vehicle in the accident was assessed to the tune of Rs.2,25,328.13 which amount was recommended to be paid to the complainant by the OP-Company. However, according to the complainant, a sum of Rs.2,62,122/- was spent by her for getting this vehicle repaired to make it road worthy. The complainant also placed on record the copies of bills Annexure-F & G in this behalf. In support of the aforesaid bills, she also filed the affidavit of one Shri Ashok Thakur, Authorized Signatory, Hind Motors, India Limited who alleged in this affidavit that the vehicle aforesaid was repaired and total sum of Rs.2,62,122/- was charged from the complainant through the two computerized bills amounting to Rs.49,681/- and Rs.2,12,461/- totaling Rs.2,62, 122/- . However, the independent surveyor and loss assessor after associating the complainant conducted survey of spot and assessed the net loss to the tune of Rs.2,25,328/- . Therefore, we find no reason to discard this report issued by independent surveyor and loss assessor to determine the quantum of loss caused to vehicle in question in the accident.



10. For the foregoing reasons and discussions, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of insured sum of Rs.2,25,328/- along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 19.07.2007, till making full payment of the aforesaid amounts. The litigation cost is quantified at Rs.2,000/- payable 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.

Jai Guru Dev Gram Udyog Samiti Regd. Dodhal Road, Malaud Distt. Ludhiana through its Secy. Ravinder Singh.
(Complainant)
Vs.

1- National Insurance Company Limited, having its Branch Office, Opp. Grain Market, G.T. Road, Khanna through its Branch Manager.
2- Bank of India, Maloud branch Distt. Ludhiana through its Manager.

(Opposite parties)

Complaint under section 12 of the Consumer Protection Act, 1986.
….
Quorum:
Sh. T.N. Vaidya, President.
Sh. Rajesh Kumar, Member.
Present:
Sh. G.S. Pahwa Advocate for the complainant.
Sh. Rajnish Garg Advocate for opposite party no.1.
Sh. Dheeraj Sood Adv. for opposite party no.2.

O R D E R
T.N. VAIDYA, PRESIDENT:

1- Complainant running a rice Sheller, got insured stocks vide cover note no.57503 and 57504 dated 15.10.2004 from opposite party on. On 28.6.2005, due to thunder flash/lightening, stock of husk lying in the premises of the complainant, valuing Rs.9,10,000/- got burnt. Claim was lodged with opposite party no.1 and intimation was given to opposite party no.2, through whom policy was taken. Police report was also made. Opposite party no.1 engaged M/s J.L. & Co. surveyor to assess loss. Complainant submitted entire information sought by the surveyor. But they failed to settle the claim. Hence, wrote letters to opposite party no.1. Subsequently, opposite party no.1 vide letter dated 17.4.2006, repudiated the claim, on ground that it was not payable under terms and conditions of the policy. Such repudiation is claimed to be null, void and illegal, by filing the present complaint u/s 12 of the Consumer Protection Act, 1986. It is alleged by the complainant that fire took place, due to lightening. Hence, entitled for Rs.9,10,000/- as loss suffered by him in the fire along with Rs.1 lac compensation and Rs.20000/- as litigation costs.


2- Opposite party no.1 in reply, claimed that this Fora has no jurisdiction, to try the complaint, as there is no deficiency in service. They obtained admitted obtaining insurance policy by the complainant and lodging claim, as alleged. Engaging surveyor M/s J. Lal & Co. is admitted. Averred that after receiving report of surveyor and investigator, claim has been rightly repudiated as no claim vide letter dated 17.4.2006. Because it wasn’t payable under terms of the policy. The claim was duly entertained, got appointed investigator. Reported claim was false and fraudulent. As per report of the surveyor, loss to the rice husk is not covered under the policy, as the oxidation of rice husk is a natural phenomenon due to oxidation of fatty acids present in the paddy rice husk and is inherent vice which is beyond the scope of the policy. As such, complaint is not maintainable and complaint not entitled to any relief.



3- Opposite party no.2 in reply pleaded that complaint is not maintainable, complaint is bad for misjoinder of necessary parties, as opposite party no.2 is not a necessary party. Admitted that complainant informed them about fire, which they informed to opposite party no.1.



4- Parties, in support of their pleadings, produced affidavits and documents in evidence and stood heard through their respective counsels.



5- Repudiation of the claim was made vide letter Ex.C1(Ex.R6) dated 17.4.2006 of the opposite party. This repudiation is based upon reports of M/s J. Lall & Co. surveyor.



6- M/s J. Lal & Co. surveyor was engaged by opposite party, to look into claim of the complainant. He had submitted report Ex.R7 dated 29th May, 2006 and in support, filed his own affidavit. He concluded after conducting investigation that no such type of incident of lightening has occurred in the area of insured’s firm and that paddy husk got affected due to inherent vice i.e. its natural properties due to oxidation of the rice husk lying in open which caused smoldering and damage to the husk. Hence, he opined that such loss wasn’t covered under terms and conditions of the insurance policy.



8- Whereas, on behalf of complainant, it has been pointed that wrong and false reports by the surveyor and investigator of opposite party, stand submitted. Because, complainant through evidence produced, has been able to prove that husk got burnt, due to lightening in thunder flash. In this behalf, reference was made to affidavits of Sh. Ravinder Singh secy. of complainant firm, Harbans Singh Lamberdar, Jarnail Singh Ex.Sarpanch and Sant Ram Chowkidar of complainant’s mill. According to them, husk got burnt in thunder flash/lightening.



9- At this stage, we may venture to record that as per report of the surveyor Ex.R7, husk of the complainant firm, was lying along with husk of another rice Sheller in the name of Shri Guru Dev Amrit Rice Mill, who had taken insurance of its stock from Oriental Insurance Co. At this stage, we may add that Shri Guru Dev Amrit Rice Mill, have filed separate claim against Oriental Ins. Co. Ltd., qua damage to the husk due to lightening. In that case, Oriental Insurance Co. had engaged surveyor Sh. Chander Shekhar and investigator Sh.Harjit Singh, who had also filed their reports in that case. That surveyor as well the investigator had also opined that no incident like thunder flash and lightening, as alleged, had happened, nor it had caused fire to the rice husk and that it got affected, due to inherent vice i.e. its natural properties due to oxidation.



10- Complainant in support qua weather conditions, at that time, has placed Ex.C24 copy of The Tribune dated June 27, 2005, Ex.C25 of June 28, 2005 and Ex.C26 of June 29, 2005.



11- Ex.C26 of The Tribune dated 29th June, 2005, containing weather report, only speaks of rain/thunder showers reported from the region Punjab, Haryana, Himachal Pradesh, UP, bus such rain and thunder as per report, were restricted to Patiala in Punjab. The weather reports spell of thunder showers and rains. There is no report that any lightening also occurred in Ludhiana area on 28.6.2005, on which date, complainant claimed that his husk was damaged, due to lightening.



12- Ex.R11 is copy of the policy, covering insurance against fire. But the policy excludes destruction or damage caused to the property insured, by its own fermentation, natural heating or spontaneous combustion.



13- Still further, it is pertinent to not that qua fire, police report was lodged on 9.7.2005, copy of which is Ex.C16. Whereas, fire is alleged to have taken placed on 28.6.2005. So, this report lodged after a gap of 11 days, would be of no consequence.



14- On behalf of complainant, on the strength of case reported in M/s Taj Sugar Works Vs Punjab National Bank & Anr. I(2000)CPJ-448(UP State Commission), it was argued that burning due to spontaneous combustion stands covered under the definition of fire, when policy taken was of fire, no additional premium, as required to be paid for spontaneous combustion. Hence, opposite was liable to pay damages, assessed by the surveyor, along with interest.



11- In the present case, as such, there is a serious dispute between the parties qua the cause of fire whether it was due to lightening in thunder storm or it happened on account of oxidation and consequently, was spontaneous combustion, for which no extra premium was paid. Hence, claim is excusable or exempted under the policy.


12- In view of conflicting material on the record, we may stay that complainant subsequently, has not been able to prove that husk got damaged or burnt, due to spontaneous combustion, or due to lightening. Because such matter needs to be gone through thoroughly, requiring quantum of evidence, providing opportunity of cross examination of witnesses produced by the parties. Furthermore, in the present case, it has come from the report of the surveyor Ex.R7 that husk of the complainant as well as of another party titled as Shri Guru Dev Amrit Rice Mill, was lying side by side and the total loss was combined of both the units. As such, it is not possible for us even if we have to allow the complaint, to decide to what extent was damage to the husk of the complainant and to what extent of Shri Guru Dev Amrit Rice Mill. To decide such matter, it elaborate evidence requires to be led by parties. Hence, we can not go into such matter, as required to be decided in a detailed inquiry before a civil court. In coming to such conclusion, we stand fortified from a case reported in Sheel Kumar, Narendera Paper Products & Anr. Vs National Insurance Co. Ltd. 2008(3)CLT-643((NC).



13- In similar circumstances like this, in another authority reported as Champalal Verma Vs The Oriental Insurance Co. Ltd. 2008(3)CPR-22(NC), it was held that report of surveyor is to be given due weightage and since the case involved quantum dispute, Consumer Fora can not go into such question, as it involved a detailed investigation. This can not be dealt in summary proceedings.


14- Furthermore, in J.K. Corp. Limited Vs National Insurance Co. Ltd. 2008(3) CLT-624(NC), it was held that burden of proof to establish that contemplated peril occurred, is on the insured. Simply stating that damage occurred won’t be sufficient to establish the peril.


15- In these circumstances, we feel that when allegations of catching fire of the husk of complainant due to lightening, are not established and that investigator had found damage due to spontaneous combustion, so it is necessary that matter be probed thoroughly, by detailed inquiry, which is not possible in the present case. Furthermore, husk of the complainant as well as of another party, was lying in the same premises side by side and damage was suffered by both of them. Out of it, how much loss was suffered by complainant and how much by the other party, who has also filed a separate complaint, it would be impossible in the absence of detailed evidence, to decide. Therefore, having regard to these facts, we refrain from deciding the matter and leave it to be decided by a competent court of civil jurisdiction. Complainant if so advised may seek his remedy before the proper authority.

C.C. No. 08 /2009


Between


Smt.G.Santhamma, aged about 50 Years,
W/o Late G.Jayachandra, Hindu,
residing at D.No.10/154 A, Ankichetty Street,
Old Pet, Palamaner Town and Mandal,
Chittoor District.

… Complainant.


And

1)The Divisional Manager,
National Insurance Company Limited,
Chennai Division, V AD-1, II Avenue,
Annanagar, Chennai – 600 040.

2)The Manager,
Road Safety Club Private Limited,
2 A, 2nd Floor, Prakasam Road,
T.Nagar, Chennai – 600 017.

3)The Manager,
Sri Ram Chits Limited,
Palamaner Branch,
Palamaner, Chittoor District.

4)The Branch Manager,
National Insurance Company Limited,
Chittoor.


… Opposite parties.

This complaint coming on before us for final hearing on 16.04.2009 and upon perusing the complaint, written versions, affidavits, material documents and on hearing Sri G.Sambasivudu & Sri N.Harikrishna Reddy, counsels for the complainant and Sri S.Vijayabhaskar Rao, counsel for the Opposite parties No. 1 & 4 and Sri K.Madhava Naidu, counsel for the 2nd opposite party and Sri K.Suresh, Counsel for the 3rd opposite party and having stood over till this day for consideration, the Forum made the following:-

ORDER

DELIVERED BY KUM.S.R.SUMATHI, B.A., B.L., FEMALE MEMBER

ON BEHALF OF THE BENCH


This is a complaint filed by the complainant U/Sec. 12 of Consumer Protection Act to direct the Opposite Parties to settle the Accidental Insurance risk of Rs.3,00,000/- at 12% P.A. and Rs.10,000/- towards compensation, Rs.10,000/- towards mental agony and Rs.5,000/- towards cost of the complaint.

The brief facts of the complaint are that the husband of the complainant during his lifetime has taken membership from the 2nd opposite party dated 21.01.2003 through 3rd opposite party. The 2nd opposite party has taken certificate of Insurance of Group Personal Accident Master Policy from the 1st opposite party for her husband valid for the period from 21.01.2005 to 20.01.2006. If any accidental death takes place there is an Insurance coverage for Rs.3,00,000/- for the members. The husband of the complainant while taking membership from the 2nd opposite party her name was shown as nominee. The husband of the complainant G.Jayachandra died in a road accident on 13.11.2005 at about 4.00 p.m. on Palamaner – Bangalore NH4 Road near Koundinya River Bridge Cattle Farm and the Palamaner Police Registered a Crime No.200/2005. On 13.11.2005 the said fact was informed to the 1st opposite party through telegram. Later on 22.12.2005 she submitted the claim forms to the 1st opposite party enclosing all necessary documents. The claim was not settled about 6 months. On 14.10.2006, 22.11.2006 and 16.12.2006 the complainant sent representations to the 1st opposite party with a request to settle the claim but in vain. On 18.01.2007 the complainant issued legal notice to the opposite parties requesting them to settle the claim by paying Rs.3,00,000/-. For the legal notice the 2nd opposite party sent a letter dated 24.01.2007 to the counsel for the complainant directing the complainant to meet the 1st opposite party and accordingly she met the 1st opposite party and requested them to settle the claim. Whenever the complainant approaches the 1st opposite party, the 1st opposite party is assuring that they are concentrating on T.P.Claims and the claim of the complainant to claim under the T.P.Claim and they will settle the claim. The opposite parties though assured since 3 years they have not settled the claim nor repudiated the claim. Therefore there is deficiency of service on the part of opposite parties to the complainant. Hence this complaint is filed against the opposite parties to settle the Accidental Insurance risk of Rs.3,00,000/- with 12% interest and compensation of Rs.10,000/- and Rs.10,000/- towards mental agony and Rs.5,000/- towards cost of the complaint and the complaint may be allowed.

The 1st opposite party filed written version on 26.02.2009. The brief facts of the written version of 1st opposite party are that the complainant has not furnished the required documents for settlement of the claim. She submitted only the Xerox copy of the affidavit stating that the list of legal heirs and Xerox copies of no objection letters on receipt of the claim this opposite party sent a letter to the complainant requesting her to sent the original documents but no response from the complainant. The Insured/deceased had obtained another accidental benefit policy for a sum of Rs.5,00,000/- from this opposite party Company, Divisional Office, Kolkata, through Golden trust Financial Services and the complainant filed Complaint before this Hon’ble Forum in C.C.No.19/08 and the same was allowed by this Hon’ble Forum on 16/12/2008. The insured suppressed the facts and obtained two polices for the same benefit hence the complainant is not entitled to claim amount under this policy. As per the policy condition “if the insured shall at any time during the continuance of the policy be insured against similar Insurance Policy with one or more insurers than the maximum liability of the insurers irrespective of the number of such policies in force with one or more insurer shall be limited to a maximum sum insured”.

Therefore there is no deficiency in service or negligence on the part of the 1st opposite party and the complaint is liable to be dismissed.

The 2nd opposite party filed written version on 06.03.2009. The brief facts of the written version are that the complainant is not a consumer of this opposite party as defined under Section 2 (1) (d) of C.P.Act and she has no legal status to file this complaint against this opposite party. This Forum has no Jurisdiction to determine the issues involved in this case on the ground that there is specific stipulations regarding arbitration and Jurisdiction clauses in the terms and conditions which was duly agreed by the complainant. The Jurisdiction aspect reads as any dispute in relation to this will be subject to Jurisdiction of Chennai Courts only. In view of the specific arbitration clause provided in terms and conditions of the Road Safety Club the complaint before this Consumer Forum is not maintainable. It is true this opposite party issued membership certificate to the husband of the complainant along with each membership certificate a separate certificate of insurance is issued relating to Insurance Company. As per this scheme the 2nd opposite party would only mediate between the Insurance Company and its members and Insurance Company would provide the Insurance cover. And the Insurance cover provided will be available to the member only as per the terms of the insurance policy in force. This opposite party has extended all the service in a suitable manner. Therefore there is no deficiency in service on the part of this opposite party and the complaint is liable to be dismissed.

The 3rd opposite party filed written version on 26.03.2009 denying all the material particulars stated in the complaint and stated that this opposite party is nothing to do with the claim of the complainant. As per complainant, her husband is member of the 2nd opposite party. It is not a case of the complainant that she has informed about the death of her husband to this opposite party and that she submitted a claim farm to this opposite party. There is no cause of action against this opposite party for filing the above complaint and this opposite party is not liable to pay any compensation to the complainant. Therefore the complaint may be dismissed with costs.

The 4th opposite party filed adoption memo adopting the written version filed by the 1st opposite party in all material particulars. Both parties have filed their written arguments.

The complainant filed her affidavit and the same is marked as Pw.1 and filed 13 documents which are marked as Ex.A1 to A13. The 1st opposite party filed its affidavit and the same is marked as Rw.1. The 2nd opposite party filed its affidavit and the same is marked as Rw.2, the 3rd opposite party filed its affidavit and the same is marked as Rw.3. The opposite parties 1 to 3 have not filed any documents.

Basing on the pleadings and material available on record the point that arise for consideration are:

1) Whether the complainant is entitled to the Accidental Insurance risk
of Rs.3,00,000/- with interest at 12% P.A.?
2) Whether there is any deficiency in service on the part of Opposite
Party?

3)Whether the complainant is entitled compensation of Rs.10,000/-
towards non settling the matter and Rs.10,000/- towards mental agony
and Rs.5,000/- towards cost of the complaint?

4)To what result?





Points 1 to 3 :-

The undisputed facts are that the husband of the complainant G.Jayachandra was member of the 2nd opposite party under Ex.A1 and he obtained Group Personal Accident Policy through 2nd respondent under Ex.A2 covering accidental risk valid for the period from 21.01.2005 to 20.01.2006 and the name of the complainant was shown as nominee. Further the husband of the complainant died on road accident on 13.11.2005 at 4.00 p.m. on Palamaner – Bangalore NH4 Road near Koundinya River Bridge. Ex.A3 is the Xerox copy of death certificate.

The case of the complaint is that after the death of her husband she intimated the said fact to the 1st opposite party and submitted claim farms to the 1st opposite party and opposite parties have not settled the claim since 3 years from the date of submission of the claim farms. The complainant as Pw.1 in her Chief Affidavit deposed in spite of her personal approaches and in spite of sending requisition letters Ex.A8 to A11, the 1st opposite party has not settled the claim on 18.01.2007 she issued legal notice to the opposite parties. In spite of legal notice also the 1st opposite party has not settled the claim. Therefore there is deficiency in service on the part of opposite parties and she is entitled to the claim amount of Rs.3,00,000/-.

The learned counsel for opposite parties 1 & 4 contends that the complainant has not submitted relevant documents, she sent only Xerox copies of Affidavits. He also contends that as per policy condition when the insured have 2 or more policies covering the accidental risks the liability of insurer shall be limited to maximum sum assured. The husband of the complainant had obtained another accidental policy for a sum of Rs.5,00,000/- from the 1st opposite party Divisional Office, Kolkata through Golden trust Financial Services and the complainant filed the complaint C.C.No.19/08 before this Forum and the same was allowed by this Forum. Therefore the complainant is not entitled to any amount in this policy.
The counsel for 2nd opposite party contends that the Insurance cover proceeds will be available to member only as per the terms of the relevant insurance policy in force. The counsel for 3rd opposite party contends that it is only a formal party and the complainant is not entitled any relief against the 3rd opposite party.

After hearing both the parties the point for consideration is whether the complainant is entitled to Rs.3,00,000/- under Group Personal Accidental Policy?

Rw-1 stated that the insured/ deceased obtained Accidental benefit policy for a sum of Rs. 5,00,000/- from their Divisional Office, Kolkata through Golden Trust Financial Services and the complainant herein filed complaint before this Forum in C.C.No. 19/08 and the same was allowed by this Forum on 16.12.2008. He further stated that “..if the insured shall at any time during the continuance of the policy be insured against similar Insurance Policy with one or more insurers than the maximum liability of the insurers irrespective of the number of such policies in force with one or more insurer shall be limited to a maximum sum insured”.

This Affidavit of RW-1 is not rebutted by the complainant. The complainant as PW-1 did not say anything about his obtaining another accidental policy for Rs.5,00,000/- from the opposite parties, but in Ex.A2 Insurance policy she mentioned that she obtained insurance policy bearing No. 10030/47/01/9600022/03/96/30369 through National Insurance Company Limited, Kolkata. PW-1 did not say that the claim in C.C.No. 19/2008 on the file of this Forum was not in respect of the same accident against the same insurance Company under which she is now claiming the Insurance amount under the present policy. When the complainant has not denied the affidavit of RW-1 regarding allowing the complaint in C.C.No. 19/08 on the file of this Forum for Rs. 5,00,000/-. The complainant has also not denied the affidavit of RW-1 that the opposite parties are same in this complaint and C.C.No. 19/08, it amounts admitting the said facts. Further the complainant has not denied the affidavit of RW-1 regarding condition, if the insured shall at any time during the continuation of policy be insured against similar insurance policy with one or more insurers, in respect of number of such policies in force with one or more insurer shall be entitled to maximum sum insured. The present complaint is for Rs. 3,00,000/- by the same complainant under the group personal accident policy obtained from National Insurance Company Limited, Chennai through Road Safety Club for the same accident.

The object of the policy is to provide Insurance benefits of the policy holder in case of his death or permanent disability in Road Accident. In view of the contention of the opposite parties that the complainant was awarded maximum amount of Rs. 5,00,000/- in C.C.No. 19/08, which is not denied by complainant in her complaint averments as well as in her Chief Affidavit, the complainant can not claim the Insurance amount of Rs. 3,00,000/- in this Policy in the same accident. Therefore she is not entitled to the Insurance amount of Rs. 3,00,000/-. Hence there is no deficiency in service on the part of opposite parties in non settling the claim of the complainant.
Point 4:-
In the result the complaint is dismissed without costs.

CONSUMER complaint NO. 93 OF 2008

Between:
1. Thokala Odamma, W/o. Late Kattamallu, age 45 years
2. Thokala Thirupathi, S/o. Late Kattamallu, age 27 years
3. Madam Renuka, D/o. Late Katamallu, age 25 years,
All are R/o. Pedda Papaiah pally village of Huzurabad mandal of Karimnagar district.

…Complainants

AND

Divisional Manager, National Insurance company Limited, Karimnagar Division, First Floor, 2-6-103, Near Municipal Office, Karimnagar district – 505 001.

…Opposite Party

This complaint is coming up before us for final hearing on 8-4-2009, in the presence of Sri K. Srinivas Reddy, Advocate for complainant and Sri Ch. Venkateshwar Rao, Advocate for opposite party, and on perusing the material papers on record, and having stood over for consideration till this day, the Forum passed the following:

::ORDER::

1. The averments in brief of the complaint are that the complainants are the legal heirs of one Thokala Kattamallu who is the member of Shathavahana Purushula Podupu Sangam, Huzurabad which is registered association bearing no.AMC/ANR/DCO/98/59. It has taken up Group Insurance Policy (Jeevan Pramada Bheema) No.9600000706 for assured sum of Rs.50,000/- apart from Grameena Podupu Bheema bearing policy no. 3800000707 assured amount of Rs.10,000/- from National Insurance Company Ltd Karimnagar division. During the policies are in force by the date of death of Kattamallu. On 8.11.2006 deceased died as he was slipped from current pole. On the next day the complaint was given to Police, Huzurabad and the same was registered the case in Crime No. 202 of 2006 U/s.174 Cr.P.C. since the death is accidental and it is not intentional they have made a claim before the opposite party for sum of Rs.10,000/- under Jeevan Pramada Bheema Scheme and also for Group policy of Rs.50,000/-. But the claim was rejected by the opposite party on the ground that deceased died because climbing electric pole which is not his duty. And he violated the conditions of the policy. Since the death of deceased is accidental refusing the claim by the opposite party amounts to deficiency of service, hence the complaint.

2. The opposite party filed the counter alleging that the complainant is not a consumer within the meaning of Section 2 (1) (d) of Consumer Protection Act 1986 they have not entitled to any agreement and not issued policy in favour of the complainant or the deceased and they are not consumers with them. There is no privity of contract between the parties. Hence the complaint is not maintainable. It is further alleged that the opposite party had issued 2 Group Janatha Personal Accidental Insurance Policies in favour of Shathavahana Purushula Podupu Samithi, Huzurabad covering the risk of their members as per terms and conditions of the policies. The said Shathavahana Purushula Podupu Samithi, Huzurabad was not made party to the proceedings. Therefore, the complaint is also not maintainable.

3. Both parties have filed their proof of affidavits reiterating the contents of the complaint and counter. The documents filed by the complaint are marked as Ex.A1 to A9 and the documents filed by the opposite party are marked as Ex.B1 to B4.

4. Ex.A1 & A2 are the original receipts of premium nos.0273613, 0273614 Dt: 11.11.2005. Ex.A3 is the attested copy of F.I.R. along with complaint Dt: 9.11.2006. Ex.A4 is the attested copy of P.M.E. report Dt: 9.11.2006. Ex.A5 is the attested copy of Inquest report. Ex.A6 is the attested copy of Final Report Dt: 23.12.2006. Ex.A7 is the original letter from opposite party's office Dt: 10.10.2007 addressed to Sathavahana Purushula Podupu Samithi, Huzurabad. Ex.A8 is the Xerox copy of Family Member Certificate Dt: 11.7.2007. Ex.A9 is the Xerox copy of Death Certificate Dt: 22.11.2006.

5. Ex.B1 is the original copy of Insurance Policy bearing no. 551300/47/05/9600000706 issued in the name of Sathavahana Purushula Podupu Samithi, Huzurabad. Ex.B2 is the original copy of policy schedule of opposite party. Ex.B3 is the original copy of Insurance Policy bearing no.551300/47/05/3800000707 issued in the name of Sathavahana Purushula Podupu Samithi, Huzurabad. Ex.B4 is the original copy of policy schedule of opposite party.

6. The point for consideration is whether there is any deficiency of service on the part of opposite party, if so, to what relief the complainant is entitled?

7. It is contended by the counsel for the opposite party the deceased climbed the electric pole and fell down got injuries and died in the hospital. He climbed the pole without any authority and without the permission of the Electricity Department and he is no way concern with the said work which is illegal act. Therefore, as per policy conditions the complainants are not entitled for any compensation. It is also further alleged the claimants also submitted relevant record after due delay and the rejection of the claim of the complainants is not illegal and prayed to dismiss the complaint.

8. As seen from the above referred fact there is no dispute that deceased Kattamallu was member of Shathavahana Purushula Podupu Samithi, Huzurabad which is registered association bearing no.AMC/ANR/DCO/98/59. The said Samithi had also taken Group Insurance Policy under Jeevan Podupu Bheema for its members by policy no.9600000706 for a sum of Rs.15,000/- apart from Jeevan Podupu Bheema bearing no.3800000707 for a sum of Rs.10,000/- from National Insurance Company, Karimnagar Division as evident under Ex.B2 and B4 policies. It is also not in dispute that deceased died on 8.11.2006 by falling from a current pole situated at Huzurabad. The main contention of the opposite party is that the complainant is not consumer within the meaning of Section 2 (1) (d) of Consumer Protection Act 1986 and there is no privity of contract between opposite party and complainants/deceased. Section 2 (1) (d) postulates as follows:

Consumer means any person who-
Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user for such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose, or
(hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose). The service rendered by the opposite party by way of contract with the Podupu Sangam comes under the deceased is consumer within the meaning of Section 2 (1) (d) of the Act since the complainants who are LRs of deceased steped into the shoes of Katta Mallu they must be deemed as consumers. Though there is no direct contract between deceased and the opposite party it has entered into contract with Podupu Samithi registered association where in the deceased is member and the said agreement is triplicate agreement and binding on the opposite party, therefore, the contention of the opposite party that there is no privity of contract is not tenable. If we come to the payment of compensation the learned counsel for the opposite party vehemently contended that the deceased died while he was slipped from the electric pole and by sustaining injuries. In fact he is not authorized to climb the electric pole which belongs to electric department. As such the death of deceased cannot be said as accidental since there is violation of terms of policy and they are not entitled for claim. Interalia the learned counsel for the complainant contended that though the deceased not authorized to climb the electric pole from the circumstances it is to be gatheredthere was no criminal intention on the part of deceased in causing the incident. At request of his neighbors he climbed up the pole to correct the defect as there was no power at that time but unfortunately even before doing correction of the line he fell down from the pole and sustained injuries and it cannot be said any violation on the part of deceased.

9. Ex.A3 is complaint given by wife of deceased Dt: 9.11.2006 where as it is alleged one of his neighbors one Gattaiah requested the deceased that there is no power and on that the deceased climbed electric pole and accidentally he slipped from the said pole and sustained head injuries. Ex.A5 is PME report discloses that he has died due to head injuries. Ex. A6 is the report submitted by S.I. of Police, Huzurabad to Thahsildar, Huzurabad indicating that their investigation established the deceased climbed the current pole and while checking the current supply, all of sudden he fell down due to slip of pole and his death is accidental and requested to issue proceedings accordingly. These documents are clearly proving that the deceased died on the date of accident while he was slipped from the electric pole. As per clause 4 of Ex.B2 Jeevan Pramada Accidental Insurance Policy, "thus the section clearly indicating if any death arising or resulting from insured committing any breech of law with a criminal intention. From the circumstances of the case though it can be accepted to the extent that deceased climbed electric pole without any authority which amounts to breech of law it cannot be said that he did that act with any criminal intention". As no prudent man will face the risk of his life with any intention or knowledge knowing fully well such act will cause his death. Therefore, the contention of the counsel for the opposite party that as per the clause the complainants are not entitled for the amount is not tenable. As absolutely there was no criminal intention on the part of deceased to cause any such accident. Hence, the rejection of the claim by the opposite party amounts to deficiency of service and it is liable to pay the amounts as prayed for.

10. In the result the complaint is allowed directing the opposite party to pay assured sum of Rs.50,000/- apart from Grameena Podupu Bheema bearing policy no. 3800000707 assured amount of Rs.10,000/- with 7.5% per annum from the date of filing the petition i.e. 10.7.2008 and costs of Rs.500/- within one month from the date of receipt of this order.

C.C.No. 98 / 2008


BETWEEN:

Thammineni Annapurna, W/o.Satyanarayana, aged 60 years, Hindu,
House Hold duties, Door No.4-3-35, Pujaripeta Street, Amadalavalasa
Town and Mandal, Srikakulam District. A.P. ...Complainant.

AND:

01)M/s. National Insurance Co., Ltd., rep.by its Divisional Manager, Division III, 8 India Exchange Place (Ground Floor) Kolkatta, West Bengal – 700 001.
02)Golden Trust Financial Services, rep.by its Manager, 16 RN Mukharjee Road, Kolkatta – 700 001 West Bengal.
03)Golden Trust Financial Service, rep.by its Branch Manager, New Colony, Srikakulam. A.P. …opposite parties.

This complaint coming on 05-03-2008 for final hearing before us in the presence of Sri S.Thaviti Naidu, Advocate for complainant and Sri M.Janardhana Rao, Advocate for opposite party No.1 and Sri B.Rama Mohana Rao, Advocate for Opposite party Nos. 2 and 3 and having stood over to this day for consideration, this Forum made the following:
O R D E R
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 and facts of the case briefly are as follows:
Son of the complainant by name T.V.Ramana obtained Janata Personal Accident Policy for Rs.1,00,000/- covering the risk for the period from 23-9-2002 to 22-9-2014 from opposite party NO.1 through opposite party NO.3. Opposite party No.2 is head office of opposite party NO.3. Insured met with accident on 10-7-2007 and died on 28-7-2007. Complainant is mother of the insured and also nominee under the insurance policy. Complainant intimated the same to opposite party NO.3 and


submitted claim for the insurance amount. Complainant issued notice to opposite parties on 14-7-2008 demanding the insurance amount. No reply was received from the opposite parties. Hence complaint is filed for a direction to the opposite parties to pay Rs.1,00,000/- with interest at the rate of 24% per annum from the date of death of the insured and to pay damages of Rs.1,00,000/- and costs.
2) Opposite party No.1 filed counter stating that the claim of the complainant was not rejected. It is further stated that the death of the insured was not intimated within specified time i.e, within 90 days from the date of accident. It is further stated that the complainant had not submitted necessary supporting documents within time.
3) Opposite party Nos.2 and 3 filed counter starting that the deceased insured T.V.Ramana obtained Janata Personal Accident Insurance coverage from National Insurance Company Limited, Kolkata under a group insurance scheme through the facilitation of Golden Multi Services Club of GTFS. The said group Janata Personal Accident Insurance Policy was issued by National Insurance Company Limited, Kolkata in favour of Golden Multi Services Club of GTFS covering the deceased T.V.Ramana for the period from 23-9-2002 to 22-9-2014 for Rs.1,00,000/-. Complainant is mother of the deceased. The claim of the complainant was forwarded to the National Insurance Company Limited, Kolkata.
4) Both parties filed affidavits. Exs.A1 to A14 are marked on behalf of the complainant. Exs.B1 and B2 are marked on behalf of opposite party No.1.

Heard both parties.

Point for consideration is:
Whether there is deficiency in service on the part of the opposite parties?

5) Point:
Opposite party Nos.2 and 3 filed counter stating that the claim of the complainant was forwarded to opposite party NO.1. Opposite party No.1 filed counter stating that the claim was not submitted within 90 days from the date of accident and this Forum has no jurisdiction. Complainant obtained insurance policy through opposite party No.1 at Srikakulam. Cause of action had arisen at Srikakulam. Hence, this Forum has got jurisdiction to entertain this complaint.


6) Ex.B1 is letter dated 19-12-2007 addressed by opposite party No.1 to the complainant stating that some documents are necessary for settling the claim i.e, 1) Attested photo copy of Ration Card, Voter Identity Card; 2) Photo copy of bank Pass-book of nominee; and 3) local Panchayat or Municipal Certificate regarding incident and status of nominee. Ex.B2 is Notary attested agreement between opposite party Nos.1 and 2. Jurisdiction of this Forum cannot be ousted by an agreement between the parties.
7) Opposite party No.1 filed affidavit stating that the claim was not repudiated. It appears that the claim was not settled because the claim was not submitted within 90 days from the date of accident. But opposite party No.1 has not stated in the counter when they received claim from the complainant or opposite party No.2. In the absence of specific allegation that the claim was received on a particular date, it cannot be believed that the claim was not submitted within time. The claim was not rejected. The death of the insured in accident is not disputed. Ex.A5 is letter dated 22-10-2007 addressed by opposite party No.2 to opposite party No.1 insurance company stating that the complainant had lodged a claim for the death of her son in accident along with claim form, original policy certificate, original death certificate, attested copy of FIR, photo copy of charge-sheet and photo copy of Post-mortem Report and they were forwarded the opposite party No.1 for settlement of the claim. The insured met with accident on 10-7-2007 and died on 28-7-2007. Ex.B5 letter shows that the claim was forwarded to opposite party No.1 within three months of the death of the insured. Ex.A8 is copy of FIR. Ex.A9 is copy of Charge-sheet filed under Section 304A, Section 338 and Section 337 I.P.C. Ex.A7 is letter and Post-mortem Certificate. There is no doubt about the death of the insured. Opposite party No.1 insurance company has not denied the death of the insured in road accident. There is no denial of claim of the complainant for the death of the insured. Objection as to the jurisdiction of this Forum is not tenable. Objection on the ground of delay in submitting claim is also not tenable. We therefore hold that there is deficiency in service on the part of opposite party No.1 insurance company. Hence, we answer the point accordingly.


In the result, complaint is allowed. Opposite party No.1 Insurance Company shall pay an amount of Rs.1,00,000/- (Rupees one lakh only) to the complainant with interest at the rate of 12% per annum from the date of filing the complaint i.e., 6-8-2008 till the date of payment and costs of Rs.1,000/- (Rupees one thousand only). Advocate’s fee is fixed at Rs.1,000/- (Rupees one thousand only).

ORDER
Date of filing : 28-10-2008
Date of order : 02-04-2009
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.218/08
Dated this, the 2nd day of April 2009
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.P.SHYMALADEVI : MEMBER

1. T.A. Jayasree
2. Neerja (Rep.by 1st complainant)
3. Bharathi
(All are R/at Thimiri analakkat Illam, Kunhippara, } Complainants
Po.Kodakkad, Hosdurg Taluk, Kasaragod.Dt)
(Adv. M.Purushothaman, Hosdurg)

The National Insurance Company Ltd,
Rep.by it’s Branch Manager, Branch olffice, } Opposite party
V.V.Road, Mandya
(Exparte)

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

The complainants 1 to 3 are the legal heirs of deceased Narayanan Nambooiri who was an insured under the Janatha Personal Accident Policy issued by the opposite party. The policy descriptions are as follows:
Policy No. : 602401/47/98/9603467
Period of insurance : 9-2-1999 to 8-2-2011
Premium : Rs.300/-
Sum assured : Rs.1,00,000/- (Rupees one lakh only)
2. While the policy was active, Sri.Narayanan Namboodiri expired on 1-4-02 in a railway accident. Though a claim with all the relevant documents was preferred by the complainants it was not honoured. Alleging deficiency in service on opposite party this complaint is filed claiming the sum insured i.e. Rs.1,00,000/-with interest and cost.
3. The opposite party National Insurance Co.Ltd and appeared through counsel and sought time for version, later not turned up or filed version. Complainants have not adduced any oral evidence. The documents produced by the complainants were marked as Exts A1 to A9. The counsel for the complainant heard.
4. Ext.A1 is the copy of certificate of death issued in respect of the death of the insured Narayanan Namboodiri. Ext.A2 is the copy of the Janatha Personal Accident Policy. Ext.A3 is the lawyer notice issued to opposite party No.2 calling upon the opposite party to settle the claim of the complainants. Exts A8 and A9 are the letters issued by opposite party to the Ist complainant asking her to produce documents to process the claim.
5. It is the case of the complainants that even after submission of all the records demanded by the opposite party the claim in respect of the death claim benefits of the insured is kept in abeyance without assigning any reason.
6. As held by our Hon’ble Apex Court the non-settlement of an insurance claim within 2 months of the submission of the claim itself is a deficiency in service. In this case there is no contra evidence is forthcoming to prove that the claim processing is attained its finality. Hence it cannot be considered that the complaint is barred by limitation also. The settled position of law is that the limitation in respect of an insurance claim runs from the date of rejection/repudiation of claim. As the claim is neither repudiated or rejected this complaint is well within the period of limitation and hence the complaint is maintainable.
7. The non settlement of the insurance claim of the complainants in respect of the death of Narayanan Namboodiri is a deficiency in service of the opposite party and therefore the opposite party is liable to pay the sum assured to the complainants.
8. As per the Janatha Personal Accident policy if the insured sustain any bodily injury resulting solely and directly from accident caused by outward violent visible means thus the company shall pay to the insured.

If such injury shall within 12 calendar months of its occurrence be the sole and direct cause of the death of the insured the capital sum insured stated in the schedule the amount payable under this clause shall be paid to the Nominee shown in the schedule.

9. The capital sum shown in the schedule is Rs.1,00,000/- as per Ext.A2 policy. The nominee of the deceased insured is the complainant No.1.
Therefore the complaint is allowed and the opposite party is directed to pay Rs. 1,00,000/- (Rupees one lakh only) to the Ist complainant being the nominee of the insured, towards the settlement of claim arising out of the Janatha Personal Accident Policy issued by the opposite party with interest @ 9% from the date of complaint till payment. Opposite party further directed to pay Rs.2000/- towards the cost of these proceedings. Time for compliance 30 days from the date of receipt of copy of order.

ORDER By G.Yadunadhan, President:

The case of the complainant is that complainant had visited the Amusement park owned by opposite party-1 and the complainant sustained grievous injuries when he got in Sky Train. Complainant alleges the unscientific handling of the system caused the accident. For this complainant filed this complaint for getting compensation of Rs.3,00,000/-.

Opposite party entered in appearance and filed and disputed the territorial jurisdiction of this Forum. Hence Forum frames the issue of jurisdiction to entertain the complaint.

Both parties heard. Admittedly the incident taken place at Chalakkudy in Trissur District and opposite party-1 is also conducting business at Trissur District. Hence complainant is directed to present this complaint before the appropriate Forum that is Consumer Disputes Redressal Forum at Trissur. Therefore we are of the opinion due to the lack of territorial jurisdiction the complaint is return to the complainant and also is directed to re-present the complaint before the appropriate Forum. The time taken to conduct the matter before this Forum shall be excluded for the purpose of limitation under Article 14 of the Limitation Act.

ORDER

SMT. BEENAKUMARI .A : MEMBER


The complainant is a member of 2nd opposite party as per membership No. 23652. The complainant availed a loan of Rs. 12000/- under IRDP scheme from the 2nd opposite party as per loan No. DDI 48/95 and BL 10/95 in the year 1995 for purchasing two cows. The complainant purchased two milk cows by fully utilising the loan amount as per the conditions stipulated by the 2nd opposite party. The above said cows were duly insured with the 1st opposite party through the 2nd opposite party in the name of complainant under policy No. 570201/47/94/00524/94 as per the cattle insurance policy certificate bearing No. 003639 dated 10th March 1995 for a period of five years. Thus the policy period extends from 11.03.1995 to 10.03.2000. The complainant was repaying the loan amount in instalments from the income derived from the sale of milk of the above said cows purchased out of the loan amount. While so, the above said cows died due to disease and post-mortem was conducted by the Veterinary surgeon. Complainant requested the 2nd opposite party to take steps to claim insurance benefit from 1st opposite party for and on behalf of the complainant. The complainant submitted all connected documents before the 2nd opposite to forward the same to the 1st opposite party for considering insurance claim. The 2nd opposite party had not taken effective steps to claim or attain insurance benefit. Instead, the 2nd opposite party was sending repeated notice to the complainant for the repayment of loan amount. There is negligence and deficiency of service on the part of 2nd opposite party to the complainant. Now revenue recovery proceedings are initiated by the 2nd opposite party against this complainant. The 1st opposite party denied the insurance claim of the complainant inspite of repeated requests. The 1st opposite party violated the policy conditions and caused much severe mental agony and economic loss to the complainant. The complainant approached the 1st opposite party several times demanding the insured amount of the deceased cattle. Their attitude is also unsatisfactory. There is deficiency of service to the complainant on the part of the 1st opposite party since they were not ready to hear the grievance of the complainant.

1st opposite party National Insurance Co. Ltd filed their version contending that the complaint is barred by limitation. The opposite party had repudiated the claim submitted by the complainant on 27.01.1998 and the complainant filed this complaint after the lapse of two years i.e, on 22.08.2001. On that sole ground the complaint is liable to be dismissed. They also contended that the cause of death as per the report of the veterinary surgeon was debility. That is not covered under the policy issued to the complainant. Death due to disease alone is covered under the policy. And also they stated that they have not violated the policy conditions and no loss has been caused to the complainant by the 1st opposite party. Hence they prayed for dismissal of the claim.


The 2nd opposite party Trivandrum Co-operative Agricultural and Rural Development Bank also filed their version. The 2nd opposite party admitted the loan transaction of the complainant with the 2nd opposite party. They stated that the complainant has not remitted the loan amount as per the conditions of the loan agreement. The complainant is a wilful defaulter and need not repay the loan amount as per schedule. The 2nd opposite party stated that the insurance amount includes the loan amount. The 2nd opposite party denied the statement of the complainant that the 2nd opposite party had not taken effective steps to claim or attain insurance benefit. The 2nd opposite party has complied with all the requirements of the complainant and the complainant was directed to contact the insurance office. The 2nd opposite party is not in a position to say the denial of the insurance claim. The 2nd opposite party has not received the insurance claim till date. The complainant filed the complaint before this Forum only after receiving the notice of the sale officer on 14.06.2000. The 2nd opposite party stated that this complaint against the 2nd opposite party is not maintainable and also they stated that the suit is bad for non issuance of Sec. 80 notice as per Civil Procedure Code.


In this case complainant and opposite parties filed proof affidavits. From the complainant's side insurance policy certificate was marked as Ext. P1 and the 1st opposite party produced 4 documents and that were marked as Exts. D1 to D4.


Points that would arise for consideration are:-

1. 1. 1. 1. Whether the complaint is barred by limitation?
         2. Whether there is deficiency in service or unfair trade practice from the side of opposite parties?

1. 1. 1. 1. Whether the complainant is entitled to get the reliefs?

Points (i) to (iii):- In this case the complainant argued that as per the insurance policy he is entitled to get the benefit of his insured cows which died within the policy period. In this case there is no dispute regarding the existence of policy. As per the post-mortem report the cause of death was 'debility'. As per the 1st opposite party this is not covered under the policy conditions. As per Ext. P1 policy certificate the insured should die due to accident or diseases (including Rinderpest, Blackquarter, Haemorrhagic Septicaemia, Anthrax Foot and mouth disease and Theilariasis). As per Ext. D1 document the Veterinary certificate shows that the cause of death was debility. Debility is not a disease and does not come under the policy condition. Nowhere in the post-mortem report it is stated that the cause of debility is due to any diseases. Normally the cause of debility is due to insufficient food to maintain its life or debility due to disease. Moreover the condition of the carcass is stated as emaciated in Ext. D1. From the above, there is no evidence before us to conclude that the cows in dispute were suffering from any diseases to be covered under the policy conditions. The complainant has miserably failed to establish his complaint with sufficient evidence. Hence as per policy conditions the complainant is not entitled to get the benefit. The opposite party repudiated the claim on that ground and the repudiation made by the 1st opposite party is legal and valid. As per D3, the copy of repudiation letter, the repudiation was made on 27.01.1998. The complainant filed this complaint before this Forum only on 22.08.2001, i.e; after two years. The complainant has not produced any records or adduced any evidence to show that there was continuous cause of action. Hence the complaint is barred by limitation also.

In this case the complainant sought no relief against 2nd opposite party. Hence no need for further discussion. Hence the complaint is dismissed.

Mr,Mithun DevendraPalankar

...........Appellant(s)

Vs.

National InsurenceCo.Ltd

...........Respondent(s)

ORDER

ORDER DELIVERED BY Sri. R.G.PATIL, PRESIDENT



1)This is a complaint praying to direct the OP to pay to the complainant the insured amount of the vehicle, with interest.

2)Brief facts of the complaint are that the complainant is the owner of the Hero Honda Splendor Plus Motor Cycle No.KA-30/K-8227 and had insured it with the OP under Policy No. 602504/31/07/ 6200002370 from 31-08-07 to 30-08-08 for Rs.25,263-00. On 4-11--07 the vehicle was kept in the bus stand after locking the engine and went to Goa. When he returned at 5 PM it was missing. The complainant searched all the places and enquired with relatives and friends. He filed complaint before the Karwar Police Station on 5-11-07. He submitted claim with the OP but the OP refused to give the claim amount through its letter dated 1-12-08 which is deficiency of service. Hence this complaint.

3)The OP filed WS admitting the insurance policy and stated that the complainant by his letter dated 5-12-07 informed the OP that the insured motor cycle has been stolen from KSRTC Bus Stand on 4-11-07 and an FIR in this regard has been lodged. He submitted claim form on 6-3-08 with certain documents. The complainant himself has stated in the FIR that he had parked the vehicle and had not put the hand lock as it was not in good condition. The police have submitted ‘C’ Final Report. The complainant had not taken reasonable steps to safeguard his vehicle. According condition No.4 he shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient manner. The insured had committed breach of policy conditions. The repudiation of the claim is justifiable grounds. There is no deficiency of service on the part of the OP. He prays to dismiss the complaint with costs.

4)The complainant and the OP have filed their affidavits. The complainant has got marked Ex.C-1 to C-82.

5)The point that arise for our consideration is : Whether there is deficiency of service on the part of the OP” ?

6) It is the contention of the counsel for the complainant that the complainant. On 4-11--07 the complainant’s vehicle that was insured with the OP was kept in the bus stand after locking the engine and went to Goa. When he returned at 5 PM it was missing. The complainant searched all the places and enquired with relatives and friends. He filed complaint before the Karwar Police Station on 5-11-07. He submitted claim with the OP but the OP refused to honour the claim. It is deficiency of service on the part of the OP and it is liable.

7)The counsel for the OP vehemently urged that the complainant himself has stated in the FIR that he had parked the vehicle and had not put the hand lock as it was not in good condition. The police have submitted ‘C’ Final Report. The complainant did not take reasonable steps to safeguard his vehicle. Referring to II(2008)CPJ 182 NC he urged that according condition No.4 the complainant shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient manner. The insured has committed breach of policy conditions. The repudiation justified. There is no deficiency of service on the part of the OP and he is not liable.

8)It is the contention of the complainant that he had locked the engine but did not lock the handle, as it was not in good condition. The repudiation is on the ground that the complainant has not taken steps to safeguard the vehicle from loss or damage and to maintain it in efficient manner. The contents of FIR show that the engine was locked. In the citation referred by the counsel for the OP the driver left the ignition key in the lorry itself. In this case the complainant has locked the engine. The locking of engine itself is sufficient to hold that the complainant has applied reasonable grade of care to safeguard the vehicle from theft, etc. So we are of the opinion that the repudiation of the claim is unjustified. There is deficiency of service by the OP and he is liable. The complainant has claimed the insured amount from the OP. The incident took place within 6 months from taking policy. So the complainant is entitled for the insured value of Rs. 25,263-00 the vehicle with cost of Rs.1,000-00.
We pass the following order.

-: ORDER :-

The complaint is allowed. The OP is directed to pay to the complainant Rs.25,263-00 (Rs.Twenty Five thousand two hundred and sixty three only) with cost of Rs.1,000-00 (Rs.One thousand only)

Complainant:-Sri.G.Marappa,
S/o Sannagangappa,
Aged about 55 years,
R/o Hanumantha Rao Nagar,
Hiriyur Taluk.

V/s.

V/s

Opponents:- The National Insurance
Co. Ltd., represented by
its Branch Manager,
Branch Office,
P.B.No.94,
B.M.Complex,
Laxmi Bazar,
Chitradurga.

*******



ORDER BY Smt. SUHEELA NASREEN , Member

: ORDER :

The Complainant has filed above complaint under section 12 of Consumers Protection Act 1986.

The brief facts of the Complaint are as follows.

The Complainant is the owner of the Mahindra pickup Van bearing No. K.A.-16-A-1671. The said vehicle insured with the Opponent under policy No. 603703/31/07/630001534 which was in force from 14-8-2007 to 13-8-2008. On 15-11-2007 at about 4.45 p.m. the said vehicle met with accident near Yalladakere of Hiriyur Taluk. The vehicle was damage in the said accident. He informed about the accident to the Opponent. Opponent deputed surveyor Sri. H.S.Suryanarayana who conducted the survey. Thereafter complainant has got repaired the vehicle by spending Rs. 1,60,000/-. Complainant has submitted the claim form with all the documents like repair bills, police records, to the Opponent. On 5/12/2008, Opponent has repudiated the claim stating that at the time of accident vehicle was carried 7 people against the seating capacity of 2 + 1 and have submitted false bills. Thus complainant violated the terms and condition of policy.

2. The complainant has alleged that the accident occurred due to hit by another lorry bearing No.KA-01-B-5837 which was coming from backside of the Mahindra Van. Opponent has drag the matter and has taken more than 10 months time to repudiate the claim. Thus Opponent made deficiency in service and committed unfair trade practice.

3. Therefore complainant prays for a direction to the Opponent to pay Rs.1,60,000/- with 12% interest per annum from the date of accident till the date of realization and Rs.20,000/- towards mental shock and agony and Rs.5,000/- towards cost.

4. After service of notice from this forum Opponent appeared through counsel and filed version. Opponent admits the ownership and enforcement of its policy and further admit the place, date, timing and cause of the accident, but contended that policy issued was goods carrying concerned vehicle open policy ‘B’ package to the Light goods vehicle and the risk of the said vehicle (I.D.V.) is Rs.2,80,000/- and complainant has intimated the accident only after a gap of 13 days and not immediately. On 28-11-2007 Opponent appointed his surveyor by name H.R.Suryanarayana. He conducted survey in M/s. Himath Auto Engineerings Works and has assessed loss of Rs.53,560/- deducting Rs.500/- towards policy excess. Again insurance company has appointed one Himath Kedhar for re-inspection. On 27-3-2008 the surveyor re-inspected and filed report stating that the repair and replacement parts of the vehicle have been carried out in term of final survey and vehicle is in good running condition and road worthy. Again for scrutiny H.R.Suryanarayana has been appointed. He filed his scrutiny report and assessed insurer’s liability will be Rs.42,902/- only. After verifying all the records, it has been high lighted that on date of accident 9 people were traveling in the capacity of gratuitous passengers in the light goods vehicle. Carrying of passenger in a goods carriage is not stipulated in the Act. Thus complainant has violated the policy terms and condition. The policy does not cover (3) use for carrying passenger in the vehicles except employee not exceeding the members permitted in the document. The repair bills submitted are false. In view of all the reasons Opponent has repudiated the complainant’s claim. Therefore he prays for the dismissal of the complaint with exemplary cost.

5. Both the parties filed their chief examination by way of affidavit and produced documents and written arguments.

6. Heard the argument.

7. The Points that arise for our consideration are as follows:-


1)Whether there is deficiency in service on the
part of Opponent ?

2)Whether the complainant is entitled for relief
sought ?

3) What order ?

8. Our findings.

Point No.1 & 2 : Affirmative.
Point No.3 : As per final order.

:: REASONS ::

9. The Opponent admits that Sri.G.Marappa is the owner of the Mahindra Pickup Van bearing No. KA-16-A-1671 and the policy is in force on the date of accident. The Opponent also admits the date, time, place and cause of the accident, but the main contention raised by the Opponent is policy issued is to goods Carrying Commercial vehicle open policy ‘B’ package to the light goods vehicle and people were traveled in the capacity of gratuitous passenger, and thus violated the terms and conditions of the policy. The Opponent has produced certified copy of the F.I.R. and charge sheet which discloses that accident occurred due to a hit by another lorry No.KA-07-B-5837 which has come from backside of the Mahindra pickup Van No.KA-16-A-1671, at that time some members were sitting in cabin, the Opponents has not produced any other acceptable evidence to show gratuitous passengers were traveling in the vehicle at the time of accident. More over the F.I.R. and charge sheet are subjected to cross examination. Admittedly the driver of the vehicle coming behind the Mahindra pick up Van has rashly and negligently hit the van and has caused accident. Under these circumstances there is no direct nexus between the passengers carried in the vehicle and the accident taken place. Merely by carrying one or two persons extra by the driver without the knowledge of the owner could not said to be a fundamental breach of the rules and the owner should in all event be denied indemnification. Here the driver of the another lorry has hit the pick up van and has caused extensive damages. Under these circumstances the contention of the Opponent is not an acceptable one. The Hon’ ble Supreme Court in its judgment in B.V.Nagaraju V/s. M/s Oriental Insurance Co., Ltd., (1996 CPJ (11) Page 18(SC) has stated as follows:

“ Consumer Protection Act, 1986- Claim-Policy of insurance- Breach of carrying human in a goods
vehicle more than the number permitted in term
extra passenger-could not have contributed-
exclusive term must be read down- Indemnity
by the damage caused to the vehicle “.

The Hon’ble National Commission in its Judgement in National Insurance Company Ltd and Another Vs. HARDYAL ROHTA 2006 CPJ II page 17 (NC) as held as:

Liability of insurer- Gratuitous passengers- Damage to truck in accident

“ In our view, the contention is rightly rejected
by the District Forum and by the State Commission
on the ground that the Insurance Company failed
to establish that the driver of the truck was carrying
gratuitous passengers beyond the permissible limit
and that was the cause of the accident. It also
arrived at the conclusion that there was no material
on record to establish that the respondent was
responsible for the alleged violation of the terms and
conditions of the insurance policy willfully or knowingly.”

In view of this, carrying extra passengers do not contributed the accident. If the driver lifts one or two passengers in the middle of the journey without the knowledge of the owner the payment of compensation cannot be refused to the owner of the vehicle.

10. The complainant has also admits after the accident Opponent Company deputed their surveyor H.K.Suryanarana to conduct the survey. The surveyor has conducted survey and assessed the damages taken place at the time of accident to the tune of Rs.53,560/-. After final survey again Opponent has appointed one Himath Kedar for re-inspection, he has given re-inspection survey report on 27/3/2008 stating that the repair and replacement parts of the vehicle have been carried in terms of final survey and the vehicle is in good running condition. Again for scrutiny, surveyor has been appointed that surveyor has given scrutinized report for the tune of Rs.42,902/-. Complainant has not denied this scrutinized report. It is an admitted fact that complainant has submitted claim form with required documents and bills to Opponent for settlement of claim. The Opponent has not settled the claim and repudiated the claim, on the ground that the vehicle was a goods vehicle, carried unauthorized passengers amounts to violation of the policy terms and condition and bills submitted is a fake one. Admittedly Opponents Company surveyor has filed scrutiny reports and has assessed damage to the tune of Rs.43,902/-. Which was not challenged by the complainant, and also not produced bills or affidavit of the person who repaired the vehicle. Therefore we relay upon the loss assessment made in scrutiny report of the surveyor. Hence complainant is entitled for Rs.43,900 as per the scrutiny report of the surveyor. Opponent could have settled claim in accordance with the scrutiny report on that day itself. Hence Opponent is directed to pay this amount to the complainant. Since we are awarding interest on this amount, it is not necessary to award separate compensation for mental agony. Accordingly we answer point No.1 and 2 in affirmative and pass the following order.

:: ORDER ::

1)The complaint is partly allowed.

2) The Opponent is directed to pay a sum of
Rs.43,900/- to the complainant within one
months from the date of this order.

3)The Opponent is ordered to pay interest
at 9% P.A. on Rs.43,900/- from 27-4-2008
(i.e. one month after the date of submission
of scrutiny report) till the date of realization
of entire amount.

4)The Opponent is directed to pay Rs.500/-
towards costs of the complaint.

Date of Filing:17.09.2008 Date of Order:02.04.2009 BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20 Dated: 2ND DAY OF APRIL 2009 PRESENT Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President. Smt. D. LEELAVATHI, M.A.LL.B, Member. Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member. COMPLAINT NO: 2042 OF 2008 Putta Kempegowda, S/o Putta Veeregowda, R/at Dharani Chicken Centre, Sangama Road, Kanakapura Town, Bangalore Rural District. Complainant V/S National Insurance Co. Ltd., Divisional Office No.II, No. 64, Lalbagh Road, Bangalore 560 027, Represented by its Divisional Manager. Opposite Party

ORDER By the President Sri. S.S. Nagarale This is a complainant filed under Section 12 of the Consumer Protection Act, 1986 claiming damages of Rs.5,43,885/- and costs. The brief facts of the case are that, the complainant is the registered owner of the Goods Tempo bearing registration No. KA-42-1938 and the said vehicle is insured with the opposite party for a period from 14/3/2007 to 13/03/2008. The said vehicle met with an accident in front of the Doddamalur Milk Dairy, Channapattana Taluk on Bangalore-Mysore Road. In the said accident cleaner, loader and un-loader succumbed to injuries. The vehicle of the complainant was severely damaged and became totally unfit for plying on the road. The complainant put-forth his claim with the opposite party to make good the damages caused to the vehicle. The authorised dealer surveyed the damaged vehicle and submitted report and assessed the damages to the extent of Rs.5,43,885/-. The opposite party Insurance Company rejected the claim of the complainant on 19/12/2007 on the ground that the complainant has violated the terms and conditions of the policy and also the Motor Vehicles Act and treated the claim as “No Claim”. On the date of accident, the Insurance Policy was very much in force and the complainant being the registered owner of the vehicle put-forth his claim for damages and entitled to claim the damages. The ground on which the opposite party company repudiated the claim is totally illegal, arbitrary and unreasonable. The complainant even in spite of rejection of the claim by the opposite party approached personally and requested to honour his lawful claim. The officers f the opposite party did make oral promise that his claim will be considered and settled since the charge sheet filed by the police is very clear that the persons traveling in the vehicle on date of accident did not exceed the permitted limit. The opposite party in spite of repeated personal visits failed to satisfy the claim of the complainant till this day. Hence, the complaint.


2. Notice issued to opposite party. Opposite party put in appearance through Advocate and defence version filed stating that the vehicle bearing registration No. KA-42-1938 owned by the complainant is involved in an accident on 19/7/2007 resulting damages to the vehicle and in pursuance thereof the complainant has lodged the claim with the opposite parry insurance company. After the claim was submitted by the complainant, the Insurance Company has complied with required procedure and entrusted the matter to the Surveyor and the surveyor has submitted the report stating that the five persons were traveling in the goods vehicle in question as against the permitted seating capacity and as such the complainant insured has committed breach and violations of the terms and conditions of the policy. They have attended to the claim in a prompt and efficient manner by appointing surveyor to assess the loss and surveyor has assessed the loss at Rs.4,86,549.50. The opposite party Insurance company issued a letter on 19/12/2007 stating that there is breach and violation of the terms and conditions of the policy of the Insurance as to limitation as to use clause and violation of the provisions of the Motor Vehicle Act and as such Insurance Company has stated that they are not liable to pay the claim and treated the claim as “No Claim”. Copy of the policy of insurance together with the terms and conditions attached to the said policy is produced. The opposite party after due process of the claim in a prompt and efficient manner by complying with all the procedural requirements has repudiated the claim on merits and as such there is no deficiency of service and on this ground alone the complaint is liable to be dismissed.


3. Affidavit evidences of both the parties are filed. Arguments are heard.


4. The points for consideration are:- 1. Whether the repudiation of the claim is justified? 2. Whether the complainant is entitled to the claim amount?


REASONS


5. It is an admitted case of the parties that the complainant had insured his goods tempo vehicle with opposite party. Certificate of Insurance has been produced. The effective date of insurance was from 14/03/0007 to mid night of 13/03/2008. On 19/07/2007 the vehicle met with an accident. A case in Crime No.180/2007 has been registered against the driver of the vehicle. The vehicle was completely damaged in the accident and it was totally unfit for plying on the road. The complainant put forth his claim for Rs.5,43,885/-. But the opposite party company repudiated the claim on 19/12/2007 on the ground that the complainant had violated the terms and conditions of the policy. The only defense taken by the opposite party is that as per the surveyor report five persons were traveling in the goods vehicle which is against the permitted seating capacity. As per the RC seating capacity of the vehicle was three in all (1+2). So the company rejected the claim put up by the complainant on the ground that the vehicle was carrying five persons. The rejection of the claim by the company is clearly illegal. The company cannot repudiate the claim on the ground that five persons were traveling in the vehicle. There is no nexus between the passengers and the accident. The defence taken by the opposite party to pay the claim amount to the complainant is nothing to do with the number of persons traveling in the vehicle. The opposite party company can take this type of defence in the claim petition filed by the injured or LRs of deceased under Motor Vehicle Act for claiming compensation. But this is a claim in respect of damage to the vehicle. Therefore, there is no connection of persons traveling in the vehicle with the accident in question. It is absolutely immaterial whether three persons traveling or five persons traveling in the vehicle. The facts remains that the vehicle met with an accident and it was completely damaged in the said accident and the complainant having insured the vehicle and taken comprehensive policy is entitled to the IDV amount as per the policy. The opposite party had relied upon on the FIR only to say that five persons were traveling. But in the charge sheet after investigation it has been mentioned that only three persons were traveling in the vehicle and two persons were standing to unload the goods. Therefore, as per the charge sheet only three persons were traveling. FIR is only sets the criminal law into motion. The Investigation Officer will take up the matter for investigation and after completing the investigation he submits the charge sheet/final report to the Court and that is the final document requires to be relied upon.

Therefore, the reason assigned by the opposite party for rejecting the claim is against law and same cannot be accepted at all. The Maharashtra State Commission in a case reported III 2007 CPJ page 306 between National Insurance Company Ltd., Vs. Sardar Lachhman Singh has held; burden lies on the opposite party to prove ground of repudiation of claim – No nexus between passengers and accident etc.,. In para 9 of the judgment it has been stated that even if it is assumed that the car was carrying fare paying passengers. There is no connection of passengers traveling in the car with the accident in question. There is no nexus between passengers and accident in that respect and the Hon’ble Commission had allowed claim of the complainant and the Insurance Company was directed to pay the amount with interest. The Hon’ble National Commission also in B.M. Rajashekaraiah Vs. Oriental Insurance Co. Ltd., has held in Revision Petition No.1690/2002 dated 18/03/2004 has held: “it is settled law that carrying of 4/5 passengers in lorry was not the cause of accident and repudiation illegal”.


6. So in view of the above authorities also and also on facts of the present case the repudiation of the claim by the opposite party in this case is illegal and unjustified. The opposite party himself has got the vehicle surveyed and as per their own survey report the loss assessed was Rs.4,86,549/- as per his estimation from Arvind Motor Private Ltd., the loss assessed is rs.5,43,885. As per the policy IDV is for Rs.4,95,924/-. As per the survey report of the opposite party company itself the opposite party is liable to pay Rs.4,86,549/-. There is not much difference between the survey report of the opposite party and the IDV. Therefore, without discussing much the survey report submitted by the opposite party is to be accepted and the opposite party shall be directed to pay the amount as per the assessment made by their own surveyor. The opposite party has made delay in allowing the claim. Therefore, the complainant is definitely entitled for the interest for the delayed payment. The survey report has been submitted to the opposite party by surveyor Mr. Shivashankarappa on 27/10/2007. So from that date the complainant is entitled interest. In the result, I proceed to pass the following:-


ORDER


7. The Complaint is allowed. The opposite party is directed to pay Rs.4,86,549/- to the complainant towards total loss of the vehicle. The opposite party is further directed to pay interest at 10% p.a. on the said amount from 27/10/2007 till payment/realisation.


8. The opposite party is directed to pay Rs.2,000/- towards costs of the present proceedings to the complainant.


9. The opposite party is directed to comply the order within 30 days from the date of this order.

Shri Prakash G. Rajadhyaksh,
S/o Gajanan G. Rajadhyaksh,
Major in age, married,
R/o House No.2117, Aaradhya,
Vassant Nagar, Sankhali, Goa.


Shri Siddharth P. Rajyadhyaksh,
S/o Prakash G. Rajyadyaksh,
Major in age, Bachelor,
R/o House No.2117, Aaradhya,
Vassant Nagar, Sankhali, Goa……………..…Complainants


V


The National Insurance Co. Ltd.
Having its office at TownCenter,
1st Floor, Bicholim, Goa. ....………...…..Opposite Party



Date: - 29/04/2009



O R D E R

(Per Smt. Shanti Maria Fonseca, Sr. Member)

Brief facts of the case:-

1.On 28.03.05, the Complainant No.1 transferred his Maruti car having chasis no.114539 to the Complainant No.2 who is his son. It is his case that the said car met with an accident on 18.09.05 at Pawai, Maharashtra. According to the Complainants the said car was repaired at `Pawai Auto Works’ and the Complainants paid Rs.9,229/- for the same. Receipt of the same has been produced by the Complainants before this Forum and the said has not been disputed by the Opposite Party.

2.The Complainants have also stated in their complaint before us that the second accident took place at Rajpur, Maharashtra on 24/09/05 and that they got the said car repaired at Bicholim at `Gurukrupa Automobiles’ being the authorized service station for Maruti cars.


3.The case of the Complainant is that since the said Maruti car was insured with the Opposite Party a claim against both the accidents for an amount of Rs.9,229/- and Rs.20,326/- respectively was filed before them. The grievance of the Complainant is that by letter dated 1/12/05 and 8/12/05 the Opposite Party has rejected both the claims of the Complainant informing them that the claims are not tenable as the Complainants have no insurable interest. The Complainants have therefore come before us aggrieved by the fact that the Opposite Party has failed to provide adequate service in not settling their claims.


4.The Opposite Party on the other hand has argued before us that the Maruti car bearing No.GA-01-C 6560 was owned by the Complainant No.2 at the time of the alleged accident and that the insurance stands in the name of Complainant No.1. The Opposite Party has extensively canvassed before this Court at all stages of the proceeding that the legal position and the rules of the insurance company does not permit the honouring of these claims.

OBSERVATIONS

We have gone through the complaint, affidavit, arguments, documents and all other evidence that has been placed before us and it is our considered opinion that there has been a deficiency in service on the part of the Opposite Party for the following reasons:

It has been established in the courts of law that “on transfer of a vehicle, the benefits under the policy in force automatically accrue to the new owner. The bonus/ malus already applicable for the policy would continue until expiry of the policy.” (Revision petition No.556 of 2002: Naryan Singh, New India Assurance Co. Ltd.). Hence we pass the following :





O R D E R
1.Opposite Party is hereby directed to pay to the Complainants the amount of Rs.9,229/- and Rs.20,326/- with interest @ 10% from the date of claim being made before the Opposite Party until the date of payment.

2.Cost of Rs.5,000/- granted to the Complainants towards cost for mental torture and legal expenses.

3.Parties to collect order from the Forum Office on any working day.

Madan Lal son of Shri Saran Dass resident of village Dharna, PO Tundi, Tehsil Bhatiyat, District Chamba (HP)

Complainant Versus

National Insurance Company Ltd. through its Branch Manager, Branch Office Kotwali Bazar Dharamshala, District Kangra (HP)
Opposite party

Complaint under section 12 of the Consumer
Protection Act, 1986

PRESIDENT: A.S.JASWAL
MEMBER: PABNA SHARMA & PARDEEP DOGRA

For the complainant: Sh. K.S.Jaryal, Advocate.
For O.Ps: Sh. Neeraj Bhatnagar, Advocate

ORDER
A.S.JASWAL, PRESIDENT (ORAL)

In nut-shell, the case of the complainant is that his car (hereinafter referred to as vehicle) had met with an accident, during the subsistence of the Policy, on 21.10.2005. The total damage caused, due to the said accident, had been assessed at Rs.23421/-. The grievance of the complainant is that after completing necessary formalities, he had submitted his claim before opposite party, but it did not settle the same and thereby committed deficiency in service.


2. The claim of the complainant has been resisted and contested by the opposite party by asserting that the opposite party has not received any intimation about the accident from the complainant. Since, the complainant had failed to intimate the opposite party within the stipulated period; it lost its right to get verified the genuineness of the loss. Since, the complainant has committed breach of terms and conditions of the Insurance Policy; the opposite party is not liable to indemnify him.


3. Both the parties adduced evidence by way of affidavits and annexures. After hearing the learned counsel for the party, the following points for determination:-
1. Whether O.P committed deficiency in service, as alleged? OPC
2. Final order

4. For the reasons to be recorded hereinafter while discussing points for determination, our findings on the aforesaid points are as under:-

Point No.1: No
Final order: The complaint is dismissed as per operative part of order

REASONS FOR FINDINGS
POITN No.1
5. .The learned counsel for the complainant has argued that the vehicle of the complainant had suffered damage of Rs.23421/- in the accident and that the opposite has failed to pay the claimed amount to the complainant and thus, committed deficiency in service.


7. On the other hand, learned counsel for the opposite party has argued that the complainant has not intimated the opposite party regarding the alleged accident and loss suffered by him within the stipulated period, as per terms and conditions of the Policy, and thus, the opposite party lost its right to get the vehicle surveyed. He further argued that since the complainant had not intimated the answering opposite party within the stipulated period, they are not liable to indemnify him.


8. To appreciate the arguments of the learned counsel for the party, the entire record available on the file was gone into in detail. The complainant has filed his affidavit, Ex.CW1, in which he has re-counted the averments as made in the complaint.


9. The case, as set up by the complainant, in his complainant as well affidavit, Ex.CW1, is that during the subsistence of the Insurance Policy, his vehicle had met with an accident and that when he submitted his claim before the opposite party, it refused to pay the same. To prove his case, the complainant, firstly, has to establish that after the accident, he had immediately intimated the insurance company about the accident in question. In the present case, the complainant has failed to prove, on record, that he, immediately, after the accident, had intimated the opposite party regarding the accident in question. No doubt, the complainant has deposed, on oath that he had lodged the F.I.R. with the concerned Policy station, but we are of the view that it was the primary duty of the complainant to have also intimated the opposite party regarding the accident, so as to enable it to verify the genuineness of the loss. We would like to observe that as per terms and conditions of the Policy, it was mandatory on the part of the complainant to have given notice in writing, to the opposite party, immediately, upon the occurrence of accident, but in the present case no such notice, in writing, had been given by the complainant to the Insurance Company. Thus, the complainant has violated terms and conditions of the Insurance Policy. We may mention that it was incumbent upon the complainant to have intimated the Insurance Company immediately after the accident. Had the complainant intimated the insurance company, immediately, after the occurrence, it could have got verified the claim of the complainant by appointing its independent Surveyor. Thus, the opposite party has lost its right to get verified the genuineness of the loss due to the lapse committed by the complainant. .


10. In view of the discussion made hereinabove, we hold that the complainant has failed to prove any deficiency in service on the part of the opposite party. Hence, point No.1 is answered in negative.


11. No other point argued or urged before us.


12. Final order


13. In view of our findings on point No.1 above, the complaint is dismissed