Sh. Puran Chand son of late Sh. Tul Chand resident of village Dhamsu Post Office Karjan, Tehsil Manali, District Kullu, H.P.
…Complainant


V/S

Branch Manager , National Insurance Company Ltd Mandi town District Mandi, H.P..




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 complainant stated that he has purchased Maruti Alto LX BS –III car bearing temporary No. HP-33-9659 ( T), engine No.FBDN-3521412 for his self employment from the Competent Automobile Gutkar vide bill No.B-301-600127 on 16-4-2008 The said vehicle was insured with the opposite party vide comprehensive insurance policy No.4056832 in the sum of Rs.2,51,957/- with effect from 16-4-2008 to 15-4-2009 as per Annexure C-2 . The vehicle was financed by the Megma Shrachi Finance Limited as per sale certificate Annexure C-3. The complainant averred that he was busy in completing the codal formalities and could not apply for registration of the vehicle with the Motor Vehicle and Registration Authority. The complainant averred that he engaged Sh. Pawan Kumar son of Sh. Om Chand as driver of the vehicle who was duly authorized to drive the category of the vehicle as per driving license Annexure C-4. The complainant further averred that on 10-5-2008 when Sh. Pawan Kumar was driving the vehicle in question and was coming from his native village Sari alongwith his wife to Manali , it went out of the road and met with accident at about 5.30 AM. The driver of the vehicle died on the spot and his wife Smt. Kanchan Devi who was travelling in the vehicle sustained injuries and First Information Report No.220/2008 was registered in police station Mandi which is Annexure C-5. The complainant alleged that the vehicle in question badly got damaged i.e. total loss and was carried by the complainant on 12-5-2008 in Recovery van to Competent Automobiles by spending Rs.4000/- as per bill Annexure C-6 Due intimation of the accident was also given to the opposite party on 19-5-2008 and he had also supplied the relevant documents for settlement of the own damage claim. It has further been alleged that vide letter Annexure C-7 the opposite party had repudiated the claim illegally which amounts to deficiency in service and unfair trade practice as accident of the vehilce had occurred only after 25 days of its purchase and under the law, the complainant can register the vehicle within 30 days and as such there is no breach of the policy. The complainant had suffered loss of Rs.300/- per day as the vehicle was financed by Megma Finance Limited. With these allegations the complainant had sought direction to the opposite party to settle the claim on total loss basis , to pay the sum insured to the complainant , to pay the interest amount as claimed by Megma Sharchi Finance limited , to waive off the interest and penal interest after the accident of the financed vehicle, to pay Rs.25,000/- for harassment , Rs.20,000/- as litigation charges, and Rs.10,000/- as costs


2. The opposite party had filed reply wherein it had admitted that the vehicle was insured with the opposite party as passenger carrying vehicle under the policy and it met with an accident . It has been contended that the vehicle was put on road without registration , route permit and the same is complete violation as per section 66 of the M.V.Act. The opposite party had admitted that the vehicle was totally damaged and had placed on record report of Surveyor Annexure OP1. It has further been contended that as per the M.V. Act no owner of the vehicle shall use or permit to use of vehicle as a transport vehicle in any place whether or not such vehicle is actually carrying any passengers or goods and the insurer was right in repudiating the claim. The complaint had been sought to be dismissed.


3. The complainant had filed rejoinder reiterating the contents of the complainant and controvert those as made in the reply.


4. We have heard the ld. counsel for both the parties and have carefully gone through the record.. It has not been disputed by the opposite party that the vehicle in question was temporarily registered and was bearing registration number HP-33-9659 . It has also been admitted by the opposite party that the vehicle was duly insured with the opposite party with effect from 16-4-2008 to 15-4-2009 and during the currency of the insurance policy it met with an accident on 10-5-2008. The only ground on which the claim has been repudiated by the opposite party is that the vehicle was put on road without registration and route permit in violation of the section 66 of the Motor Vehicles Act. Now the only question which arises for determination before this Forum is as to whether the repudiation of the claim by the opposite party was justified on the aforesaid ground . The case of the complainant is that at the time of the accident i.e. on 10-5-2008 the vehicle was being driven by his driver Sh. Pawan Kumar and he was coming from his native village Sari alongwith his wife to Manali and on the way it met with an accident. The aforesaid fact is corroborated by the first information report No.220/2008 dated 10-5-2008, Police Station Sadar, District Mandi wherein it has been mentioned that the vehicle was being driven by Sh. Pawan Kumar who died on the spot and at the time of the accident his wife was also travelling in the vehicle in question. The vehicle was having temporary registration number. As per section 43 of the Motor vehicle Act, temporary certificate of registration is valid for a period of one month. As per sale certificate Annexure C-3 the vehicle was purchased by the complainant on 16-4-2008 . It met with an accident on 10-5-2008 i.e. within a period of one month from its sale. The opposite party had repudiated the claim of the complainant on the ground that at the time of accident driver alongwith his wife were travelling in the vehicle which is a breach of Section 66 of the Motor Vehicles Act and the complainant could not justify the plying of the vehicle on road without registration and route permit .At this juncture , it would be relevant to refer to the relevant portion of section 66 of the Motor Vehicles Act , 1988 which reads as under:-
“66. Necessity for permits (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or counter signed by a Regional or State Transport Authority or any prescribed authority authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used …….”



5. The perusal of aforesaid section of Motor vehicles Act, 1988 shows that no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place save in accordance with the permit granted by the competent authority. As per section 2(47) of the M.V. Act, “transport vehicle ” means a public service vehicle, a goods carriage , an educational institution bus or a private service vehicle . In the present case, the vehicle in question is neither a goods carriage nor an educational institution bus . As per sale certificate Annexure C-3 seating capacity of the vehicle including driver is five . Therefore, it cannot be said to be a private service vehicle . According to the opposite party, the vehicle in question was insured with it as a passengers carrying vehicle and the complainant has not denied this fact. Therefore , as per the admitted case of both the parties, it is a public service vehicle. As per section 2( 35) of the M.V. Act “public service vehicle” means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxi cab, a motor cab, contract carriage and stage carriage . Therefore, in these circumstances it was incumbent upon the opposite party to establish that the vehicle was carrying passengers for hire or reward at the time of the accident. However, as per the first information report and as per the repudiation letter of the opposite party dated 1-9-2008, at the time of the accident driver was travelling in the vehicle alongwith his wife . The opposite party has failed to prove that at the time of the accident , the vehicle was being used for carrying passengers for hire or reward. Therefore, it cannot be said that the vehicle was being used as a transport vehicle for hire or reward without the permit at the time of the accident . Hence , in our opinion there is no violation of section 66 of the M.V. Act as the vehicle was not being used as “transport vehicle” without permit or route permit .As per section 39 of the M.V. Act , no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter. In the present case, it is the admitted case of the opposite party that the vehicle was registered and was provided a temporary registration number . As per section 43 of the Motor Vehicles Act,1988 temporary registration is valid for a period of one month . Admittedly the vehicle in question met with an accident within a period of one month from the date of its purchase and was bearing temporary registration number . Therefore , it is clear that at the time of the accident neither the vehicle was being plied in contravention of the provisions of the Motor Vehicles Act nor in violation of the terms and conditions of the insurance policy. Hence we have no hesitation to conclude that the opposite party had repudiated the claim of the complainant illegally which amounts to deficiency in service and the complainant is entitled for compensation on this count .



6 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the vehicle . The complainant in his complaint had sought settlement of the claim of the vehicle on total loss basis . Be it stated that as per the certificate cum policy schedule Annexure C-2 , the insured declared value of the vehicle was Rs.2,51,957/-. The opposite party has adduced in evidence the photocopy of report of Surveyor Sh. Mohinder K Sharma dated 11-7-2008 who had assessed the Net Loss liability on total loss basis in the sum of Rs.2,41,957/- and after deducting the salvage value of Rs.85,000/-, net loss assessed is in the sum of Rs.1,56,957/- . 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 11-7-2008 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. 2,41,957/- subject to deposit of salvage , value of which had been assessed by the surveyor at Rs.85,000/-.



7 The complainant had claimed Rs.25,000 as compensation besides Rs.10,000/- as costs of litigation . As discussed above, since the claim of the complainant had been repudiated illegally by the opposite party and he had suffered harassment Therefore, in such circumstances , an amount of Rs.10,000/- will be sufficient to meet the end of justice on this score and Rs.2000 /- as costs of litigation.



8 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay to the complainant Rs.2,41,957/-. with interest at the rate of 9% p.a. from the date of filing of the complaint till realization subject to the deposit of salvage . In case, the complainant fails to deposit the salvage within a period of one month from today , the opposite party is at liberty to deduct Rs.85,000/- on account of salvage from Rs.2,41,957/- .The opposite party is further directed to pay Rs..10,000/- as compensation and Rs.2000/- as costs of litigation .

Ram Krishan son of Sh. Prem Dass resident of village Chowki, Post Office Olwa, Tehsil Anni, District Kullu, H.P.



…Complainant


V/S



1. National Insurance Company Ltd limited Branch Office

Main Market Tapri District Kinnour through its Branch

Manager.

2. National Insurance Company Ltd through Branch Manager,

Mandi

…..Opposite parties



For the complainant Sh. Partap Parmar ,Advocate

For the opposite party Sh. C.L.Sharma, 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 owner of vehicle No.HP-35-B-0128 which met with an accident on 5-8-2005 and sustained huge loss in the accident. The complainant paid premium of Rs.10,638/- for the insurance of the said vehicle. The complainant was issued policy on 16-9-2004 which was valid with effect from 16-9-2004 to 15-9-2005. The complainant averred that after the accident of the said vehicle, he completed all the formalities and applied for the payment of own damage claim before the opposite party, but the claim was illegally and wrongly repudiated by the opposite party vide letter dated 31-7-2006 which act on its part amounts to deficiency in service . The complainant has further averred that he had employed Sh. Gopi Chand as his driver who was holding a valid and effective driving license at the time of the accident. The complainant has further averred that the insurance value of the vehicle at the time of accident was to the tune of Rs.3,70,500/-. The complainant had served the opposite party with legal notice dated 8-9-2006 to make the payment of own damage claim but nothing has been done . Earlier the complainant filed complaint for redressal of his grievance before the Consumer Forum at Chandigarh which was withdrawn with liberty to file a fresh one as the said Forum was not having territorial jurisdiction to decide the matter. With these allegations, the complainant has sought a direction to the opposite parties to pay Rs.3,70,500/- plus interest at the rate of 24 % per annum , Rs.50,000/- on account of deficiency and mental agony and Rs.11,000, as litigation expenses.




2 The opposite parties resisted the complaint by filing reply and raised preliminary objections that there was no deficiency in service on the part of the opposite parties and as such the complaint is not maintainable , that the claim was duly processed, investigated and assessed and when the same was not found to be genuine the same was repudiated after due application of mind and decision in this regard was duly communicated to the complainant vide registered letter dated 31-7-2006, that the claim has been repudiated after due application of mind and as per the terms and conditions of the policy as the driver Sh. Gopi Chand was not competent and entitled to drive L TV vehicle on the date of accident , that the complainant has not come to this Forum with clean hands, that the disputed and complicated questions of fact and law involved in the case cannot be adjudicated by the Forum in a summary procedure and that the complaint is time barred. On merits ,the opposite parties have not denied the insurance of the vehicle in question and its accident . It has been averred that the complainant had informed the opposite party No.1 vide letter dated 18-8-2005 which was received on 29-8-2005 that the vehicle had met with an accident on 5-8-2005. It has further been averred that the complainant had informed that Sh. Gopi Chand alias Mahinder was the driver of the vehicle at the time of the accident . On receipt of the information, the opposite party No.1 wrote to the complainant vide letter dated 9-9-2005 Annexure R-3 to submit the estimate of repair and driving license of the driver The opposite party appointed Sh.R.S. Chandhoke as Surveyor and Loss Assessor to assess the loss . That the letters dated 21-12-2005 and 30-01-2006 Annexure R-4 and R-5. were written to the complainant to co-operate with the surveyor enabling the Surveyor to assess the loss Thereafter, the Surveyor had given interim survey report dated 23-2-2006 Annexure R-6. The opposite parties had further averred that the surveyor had submitted the final report annexure R-7 assessing the net liability to the tune of Rs.3,04,000/- on net of salvage value and the complainant had given his consent which is Annexure R-8. The complainant has submitted the driving license of Sh. Gopi Chand driver which on checking was found issued on 31-12-2001 and endorsed for motor cycle LMV, LTV and in the license against column of date of birth no date is written It has further been alleged that the first information report 61/2005 was lodged in Police Station Anni and a criminal case under section 279,337 and 338 IPC had been filed against Gopi Chand alias Mahinder and the driver had given his license No.892/ANNI issued by R.L.A Anni dated 13-9-2004 authorizing the holder to drive LMV ( Non transport) with effect from 13-9-2004 to 12-9-2007 and the date of birth in the said license was recorded as 18-7-1986 and the copy of the driving license is Annexure R-10 It has been alleged that since Gopi Chand was possessing two driving licenses , thus the same was in violation of the provisions of the Motor vehicle Act . Rest of the allegations have been denied being wrong. The opposite parties 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 also gone through the entire record. It is admitted case of the opposite parties that the vehicle in question was insured with them with effect from 16-9-2004 to 15-9-2005 and during the currency of the insurance policy , it met with an accident on 5-8-2005. It is also admitted case of the parties that Sh.Gopi Chand was driving the vehicle at the material time. However, the claim of the complainant has been repudiated on the ground that Sh.Gopi Chand was possessing two driving licenses i.e. one issued by Licensing Authority Transport Department Agra issued on 31-12-2002 valid from 27-10-2004 to 21-10-2007 authorizing to drive LTV and another one issued by Registering and Licensing Authority Anni on 13-9-2004 and valid up to 12-9-2007 to drive LMV ( Non transport ). According to the opposite parties holding of two driving licenses by the driver of the vehicle in question amounted to violation of the terms and conditions of the policy as well as section 6 of the Motor Vehicles Act, 1988 and therefore the claim of the complainant was rightly repudiated.



5 Now the question which arises for determination before this Forum is as to whether the opposite parties were justified in repudiating the claim of the complainant only on this ground . The opposite parties have placed on record photocopy of the driving license issued by Licensing Authority Transport Department , Agra Annexure R-9. The perusal of the same shows that the license of Sh. Gopi Chand was issued on 31-12-2002 and was endorsed for driving LTV on 22-10-2004 and was valid with effect from 22-10-2004 to 21-10-2007. The opposite parties have also placed on record driving license Annexure R-12 issued by Registering and Licensing Authority, Anni . The perusal of the driving license Annexure R-12 shows that it was issued in favour of Sh.Gopi Chand on 13-9-2004 and was valid for driving LMV ( Non transport) with effect from 13-9-2004 to 12-9-2007. Annexure R-10 is the certificate issued by Registering and licensing Authority Anni, District Kullu, H.P. certifying that the driving licence No.892/Anni dated 13-9-2004 was issued by their office and valid up to 12-9-2007 for driving LMV The onus was upon the opposite parties to prove and establish that the vehicle was being driven in contravention of the terms and conditions of the insurance policy as well as the Motor Vehicles Act,1988 and in order to succeed in their case, in our opinion, the opposite parties were required to have established by placing on record concrete material showing that the owner / insured was negligent and was well aware of the fact that Sh. Gopi Chand driver was holding two different driving licenses and he still engaged him as driver. However, no material has been placed on record by the opposite parties to hold that there was any negligence on the part of the complainant/ owner in handing over the vehicle for being driven by his driver Sh. Gopi Chand despite the fact that he was holding two different driving licenses issued by the two different authorities . The perusal of the final survey report dated 25-3-2006 Annexure R-7 shows that the owner has handed over the driving license of Sh.Gopi Chand issued by RLA Agra which was valid for driving LTV with effect from 22-10-2004 to 21-10-2007 and in our opinion there was no reason for the owner to suspect that there were two driving licenses being held by the driver .Moreover there is no evidence on record to suggest that aforesaid driving license issued by Licensing Authority .Transport Department Agra is invalid . Even the opposite parties have not uttered a single word in the reply that the license issued by the Licensing Authority Transport Department Agra in favour of driver Sh.Gopi Chand for driving LTV is fake or invalid . In the case titled National Insurance Company Ltd Swaran Singh and others AIR 2004 Supreme Court 1531 it has been held by the Hon’ble Apex court that mere absence , fake or invalid driving licence or disqualification of the driver for driving at the relevant time are not in themselves defenses available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.



6 In the present case also, no sufficient material has been placed on record by the opposite parties to show that there was any negligence on the part of the owner and he has failed to exercise reasonable care by engaging Sh.Gopi Chand as driver. Moreover there is nothing on record to suggest that the owner / insured was aware of the fact that Sh.Gopi Chand was having two driving licenses and despite that he engaged him as driver. Therefore it cannot be said that the complainant / owner had violated the terms and conditions of the insurance policy or the Motor vehicles Act,1988 in handing over the vehicle for being driven by driver Sh. Gopi Chand . In nut shell , we hold that the repudiation of the insurance claim by the opposite parties on the aforesaid ground alone is illegal and not sustainable and it amounts to deficiency in service .



7 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the vehicle. The complainant in his complaint had claimed the assessment of the loss on total loss basis On the other hand ,the opposite party has stated that the surveyor has recommended the loss at Rs.3,04,000/- on net of salvage basis after deducting Rs.40,000/- on account of salvage value with registration certificate and Rs.1000/- on less policy clause. The report of surveyor is dated 25-3-2006 Annexure R-7 Be it stated that the opposite party had also placed on record the consent of the complainant vide letter dated 24-3-2006 Annexure R-8 whereby he agreed to receive Rs.3,04,000/- in full and final settlement of the claim on net of salvages basis The complainant had not adduced any evidence contrary to the report of Surveyor and even not disputed his consent .Moreover 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 Kiran 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 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 at Rs.3,04,000/ on net of salvage basis.



8 The complainant had claimed Rs.50,000/- as compensation on account of harassment and mental tension, due to deficiency in service on the part of the opposite party. As discussed above the opposite party has been deficient in providing service to the complainant , therefore he is entitled to some reasonable compensation on this score . Hence , It would be in the interest of justice ,if we award a sum of Rs.10,000/- as compensation.


9 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay a sum of Rs.3,04,000/ on net of salvages basis alongwith interest at



the rate of 9% p.a. from the date of filing of the complaint till realization to the complainant The opposite party is further directed to pay Rs.10,000/- as compensation on account of harassment and Rs. 2500/- as costs of litigation.

Mohi Ram Padam Singh

Fruits,Vegetabe, Commission agents and order suppliers Shop No.3 New Subzi Mandi, By Pass Road Solan, H.P.

through Shri Padam Singh Pundeer.



…. Complainant.


Versus



National Insurance Company

Through its Branch Manager

The Mall Solan, H.P.



…Opposite Party.

**************____________________________________ ______________




For the complainant: Mr. Pavit Garg, Advocate.

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



O R D E R:


This complaint under section 12 of the Consumer Protection Act, 1986 has been filed by complainant against OP-Company. The brief facts of case as set out in the complaint are that the complainant procured insurance policy from the OP-company vide which he insured currency of Rs.20,000/- in safe with the OP-Company. That this insurance policy was effective from 13.05.2005 to 12.05.2006. It is alleged that on the night of 13th November, 2005 during the currency of the aforesaid insurance policy, theft was committed in the shop of the complainant by breaking ventilator of shop and the currency note of Rs.26,000/- were allegedly removed by the thief from the chest kept in shop. Hence, the complainant reported the matter to the police by lodging FIR at Police Station Solan as is evident from the copy of FIR Annexure-B placed on record by the complainant. Thereafter, the insurance claim was preferred by the complainant with the OP-Company, but it was admittedly treated as no claim as the complainant allegedly failed to submit the untraced report of police to the OP-Company.


2. But it may be stated that there is no contractual obligation vide which the complainant can be called upon to furnish the untraced report of police. The learned counsel for OP-Company did not lay his hand on any term of insurance policy where it is specifically provided that insured has to submit untraced report at the time of submitting his insurance claim to OP-Company. Therefore, the OP-Company cannot compel the complainant to furnish untraced report of police for settlement of his insurance claim.



3. Undisputedly, on receipt of intimation from the complainant, the OP-Company deputed surveyor & loss assessor to conduct survey and assess net loss caused to complainant due to theft of money insured. The copy of the survey report dated 11.03.2006 is placed on record by OP-Company vide which the surveyor assessed the net loss at Rs.19,395/- recommended to be paid to the complainant. Hence, this report of surveyor can be safely acted upon to determine the loss suffered by complainant due to this theft.



4. Resultantly, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of Rs.19,395/- along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 30.10.2007 till making full payment of the aforesaid amount. The litigation cost is quantified at Rs.1000/- payable by the OP-Company to the complainant. This order shall be complied with by the OP-Company within a period of forty five days after the date of receipt of copy of this order. The learned counsel for the parties have undertaken to collect the certified copy of this order from the office, free of cost, as per rules.

Mrs. Santosh Sharma wife of

Shri Tara Dutt Sharma, Main Bazar Rajgarh, District Sirmour, H.P.



… Complainant

Versus



National Insurance Company Limited

The Mall, Solan,

Through its Branch Manager.





…Opposite Party


For the complainant: Mr. Anirudh Sharma, Advocate vice Mr. Sudhir Thakur, 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 Santro Xing bearing registration No. HP-16A-7500 which was duly insured with the OP-Company vide insurance policy bearing No.610000746/06, effective from 27.05.2006 to 26.05.2007. That the aforesaid vehicle met with accident twice in the month of October & December, 2006 and it sustained extensive damage. That she reported the matter to the police and intimation in this behalf was also sent to the OP-Company. It is alleged by her that she spent Rs.6,106/- and Rs.12,037/- respectively on 19.10.2006 and 06.12.2006 respectively for repairing 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 earlier insured the vehicle with Oriental Insurance Company Ltd. Panchkula, which expired on 26.05.2006. But, at the time of insuring the vehicle with them, she made a false declaration that she had not taken any claim under the previous insurance policy from Oriental Insurance Company Panchkula and claimed benefit of no claim bonus @ 20% amounting to Rs.1,968/- from them. That under section 1 of the policy, the complainant was not entitled to claim any benefit because she had fraudulently obtained the NCB from them as she had also obtained the payment of one claim under insurance policy from previous insurance company which fact was concealed by her from them. As such, the insurance claim, preferred by the complainant, was rightly repudiated by them, and 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 Santro Xing bearing registration No.HP16A-7500 owned by the complainant was duly insured with the OP-Company vide insurance policy bearing No.610000746/06, effective from 27.05.2006 to 26.05.2007. The complainant alleged that the OP-Company wrongly and illegally repudiated her genuine insurance claims. However, the OP-Company took specific objection that the complainant had earlier insured her vehicle with Oriental Insurance Company and had obtained one claim for previous year from Oriental Insurance Company which fact was concealed by her and fraudulently claimed N.C.B. from them. As such, the OP-Company was well within its right to repudiate the claim of the complainant.



5. But, it may be stated that the OP-Company did not place on record copy of previous claim form preferred by the complainant with the previous insurance company, i.e. Oriental Insurance Company in support of their plea that she had preferred claim earlier which fact was concealed by her. The OP-Company has relied upon letter dated 08.07.2007 Annexure R-14 written by OP-Company to Oriental Insurance Company vide which cheque No. and date of payment and amount paid was called for, but then nothing is brought on record by OP-Company whether the previous insurance company submitted requisite information to OP-Company or not in response to this letter. The OP-Company rather wrote letter dated 21.12.2006 Annexure R-11 to complainant and asked her to get the N.C.B. confirmed from previous insurer. Whereas, it was for the OP-Company to get this fact confirmed from previous insurer. Hence, without cogent documentary evidence led on record by OP-Company, it cannot be held by us that the complainant had earlier preferred insurance claim with her previous insurer which fact was concealed by her from present OP-Company at the time of getting her vehicle insured with OP-Company. Hence, this ground taken by the OP-Company to repudiate the insurance claim of complainant appears illegal unjustified and not tenable.



6. Needless to state that the complainant has claimed sum of Rs.6,106/- in respect of the accident allegedly took place in the month of October, 2006 and claim for sum of Rs.12,037/- in respecter of the accident took place in the month of December, 2006. She also placed on record the cash memo/invoice in this behalf. But, the affidavit of the repairer who carried out repairs & charged the aforesaid sum has been filed by the complainant. The OP-Company has however placed on record survey reports dated 27.10.2006 Annexure R-5 prepared by Er. Kuljedet Singh Baweja and dated 06.12.2006 Annexure R-10 prepared by Shri Vinod Bhardwaj vide which amounts of Rs.4,955/- and Rs.9,968/- respectively have been recommended to be paid to the complainant. These reports prepared by independent surveyors can be safely acted upon to determine the loss sustained by complainant.



7. For the foregoing reasons and discussions, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of Rs.14,923/- (Rs.4955/- plus Rs.9,968/-) along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 04.01.2007, till making full payment of the aforesaid amounts. The litigation cost is quantified at Rs.1500/- 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.

Shri Sujata Kumari



… Complainant.

Versus



The National Insurance Company Ltd.



…Opposite Party.

O R D E R:



Arguments partly heard. At this stage the learned counsel for the OP-Company submitted before us that the OP-Company has not yet repudiated the insurance claim preferred by the complainant, as they treated it as no claim as the complainant did not furnish the fitness certificate and original bills regarding the expenses incurred by him for effecting repair of the damaged vehicle. He further submitted that if the aforesaid documents are supplied to OP-Company by the complainant within time frame, the OP-Company shall process the insurance claim of the complainant and its final out come will be conveyed to the complainant within the period to be fixed by this Forum.



2. In view of this, the learned counsel for the complainant submitted that the complainant is ready to supply the fitness certificate of the vehicle and the original repair bills of vehicle to the OP-Company within the time frame to be fixed by this Forum.



3. In view of above stated position the complaint is finally disposed of. Accordingly, it is ordered that the complainant shall supply aforesaid documents, i.e. fitness certificate of the vehicle as on the date of accident, i.e. 1307.2004 along with original repair bills to the OP-Company within a period of 30 days from today and thereafter, the OP-Company shall process the insurance claim of the complainant expeditiously and will intimate its final out come to the complainant within 60 days thereafter.

Shri Dharam Singh Saini S/O Sh. Kirpa Singh Saini, Resident of Village Ranguwal, P.O. Rajpura, Tehsil Nalagarh, District Solan, H.P.



… Complainant

Versus



1. National Insurance Company Limited

Ropar (Punjab) through its Branch Manager.



2. Apex Motors, 45 Industrial Area-II, Chandigarh (UT) through its General Manager/Managing Director.





…Opposite Parties


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 he is owner of car (Tata Indica) bearing registration No. HP-12A-0066 which was duly insured with the OP-Company vide insurance policy bearing No.0124753 dated 17.12.2003 effective from 18.12.2003 to 17.12.2004. That on 30.08.2004 the aforesaid car met with accident at about 11.30 AM and sustained extensive loss. That he reported the matter to the police and intimation in this behalf was also sent to the OP-Company. It is alleged by him that he spent Rs.93,609/- on the repairs of the vehicle to make it road worthy at the advice of surveyor deputed by OP-Company to spot survey and thereafter, preferred the insurance claim with the OP-Company. But the OP-Company instead of settling his genuine insurance claim closed 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 suppressed material fact while procuring the insurance policy from them as he was not entitled to no claim bonus as he had earlier filed claim under the previous insurance policy obtained from New India Assurance Company Branch Office Kalka but concealed this material fact from them, and fraudulently obtained NCB facility to the extent of 20% from them. As such due to the non-disclousre of the material facts, the claim of the complainant was treated as no claim and conveyed vide letter dated 31.03.2005. 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. Undisputedly, the complainant being owner of car bearing registration No. HP-12A-0066 had duly insured it with the OP-Company vide insurance policy bearing No.0124753 dated 17.12.2003 effective from 18.12.2003 to 17.12.2004. Undisputed facts are that on 30.08.2004, the aforesaid car owned by the complainant met with accident and it sustained extensive loss. The complainant immediately sent intimation about this accident to the OP-Company and the OP-Company deputed surveyor to conduct survey to ascertain the cause of accident and assess the loss sustained by the car in question in this accident. The complainant alleged that at the advice of the surveyor deputed by the OP-Company to spot survey, he got estimate of the damaged car prepared to the tune of Rs.93,609/- and incurred expenses to this extent to make it road worthy and preferred the insurance claim with the with the OP-Company. But, it was not settled by the OP-Company and treated it as no claim.



5. However, according to the OP-Company the complainant suppressed material facts while procuring insurance policy from them because he was not entitled to no claim bonus as he had earlier filed insurance claim under the previous policy obtained from New India Assurance Company, branch office Kalka. But, he concealed this fact material and fraudulently obtained no claim bonus facility to the extent of 20% from them at the time of insuring the vehicle. As such, due to the non-disclosure of the material facts, the claim of the complainant was treated as no claim and he was accordingly informed vide letter dated 31.03.2005.


6. Undoubtedly, at the time of procuring the insurance policy from the OP-Company on 17.12.2003, vide insurance cover note Annexure-A the complainant was given rebate in the premium by giving NCB benefit to the tune of Rs.830/- and net premium of Rs.3315/- was charged from the complainant at the time of issuing this insurance policy. The OP-Company, no doubt alleged that the complainant had earlier procured the insurance policy from New India Assurance Company and had also filed claim under the previous policy, but the OP-Company did not place on record the copy of the previous insurance policy which was allegedly obtained by him previous insurance company, i.e., New India Assurance Company. The OP-Company only placed on record the copy of letter Annexure R-4. In this letter it is written that the NCB will be available within three years from 17.12.2003. There is nothing in this letter to hold that the complainant had earlier preferred insurance claim under this previous policy with the New India Assurance Company. Thus without cogent documentary evidence led on record by the OP-Company, it is not possible for us to hold that the complainant fraudulently claimed NCB at the time of procuring the insurance policy Annexure-A, from them for insuring his vehicle. In these given circumstances, the OP-Company was not legally justified to treat the claim of the complainant as no claim.



7. According to the complainant, at the advice of the surveyor deputed by the OP-Company to spot to spot of accident, he procured the estimate to the tune of Rs.93,609/- for carrying the repair of the aforesaid damaged vehicle and incurred expenses to this extent to make car road worthy and he preferred the claim with the OP-Company. He has also placed on record the estimate bills Annexure-B & C. But from the perusal of copies of repair bills Annexure B & C, it is not clearly made out as to whether the expenses of repairs spent were to the tune of Rs.93,609/-. It may be stated that the OP-Company had deputed one Shri Gulzar Singh (Retd.) Sqn. Ldr., as surveyor and loss assessor to conduct survey and to assess the loss caused to the vehicle in this accident who after conducting survey and assessing loss recommended loss to the tune of Rs.64,252.95 say Rs.64253/- to be paid to the complainant as is evident from the copy of Survey report Annexure R-2 dated 31.08.2004. As this report has been issued by the independent surveyor, therefore, there is no reason to discard this report Annexure R-2 prepared and submitted by the aforesaid independent surveyor and loss assessor. Accordingly, we hold that the complainant is certainly entitled to be indemnified to the extent of Rs.64,253/- by OP-Company.



8. For the foregoing reason, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of insured sum of Rs.64,253/- along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 14.08.2006, 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.

Shri Jagat Singh Negi

S/O Shri Tobgya Ram Negi,

Village and P.O. Pangi, Tehsil Kalpa, District Kinnaur, H.P. Through his SPA

Shri Laxmi Parkaesh Rathor S/O Shri A.R. Rathor, R/O Village Chebri Tehsil Kumarsain, District Shimla, H.P.



… Complainant.

Versus


The National Insurance Company Ltd.,

Through its Divisional Manager, Himland Hotel, Shimla, H.P.

…Opposite Party


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 by Shri Jagat Singh Negi through his Special Attorney Shri laxmi Parkash Rathor. The brief facts of case as set out in the complaint are that the complainant purchased vehicle bearing registration No.HP-25-1100 from original owner Shri Jagat Singh Negi on 18.10.2003 and the possession of the aforesaid


vehicle was handed over to him on same date. That the aforesaid vehicle was insured with the OP-Company vide policy No.0056421 for Rs.1,75,000/- which was effective from 07.11.2003 to 06.11.2004. That the registration of the of the aforesaid vehicle was yet to be transferred in the name of vendee-transferee Shri Laxmi Parkesh Rathor, but in the mean time the vehicle was stolen from Sanjauli in the intervening night of 23rd/24th February, 2004. Therefore, insurance claim was lodged with the OP-Company. But, the OP-Company instead of settling the insurance claim repudiated the same and conveyed vide letter dated 28th June, 2006. Hence, feeling dissatisfied and aggrieved by the act of the OP-Company, the complainant perforce filed this complaint against OP-Company.



2. The OP-Company while filing reply of complaint took some preliminary objections regarding maintainability of complaint, jurisdiction of Forum and status of the complainant as consumer etc. On merits, they alleged that Shri Jagat Singh Negi has no locus standi to authorize Shri Laxmi Parkash Rathor to file and maintain the present complaint because he has already sold the vehicle in question on 18.10.2003 after receiving full sale consideration. As such, he is no more owner of the vehicle. That subsequent -transferee Shri Laxmi Parkash Rathor did not get the insurance policy transferred in his name as per the provisions of Motor Vehicle Act. Hence, the insurance claim was rightly repudiated by them. As such, there being no deficiency in service on their part, 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 case.



4. It may be stated at the very out set that this complaint has been filed by original owner of vehicle Shri Jagat Singh Negi through his Special Attorney Shri Laxmi Parkash Rathor. However, in para 2 of the complaint, it has been alleged that the vehicle bearing registration No.HP-25-1100 was purchased by the complainant from Shri Jagat Singh Negi son of Shri Tobgya Ram Negi. Therefore, in this para Special Attorney of complainant namely Shri Laxmi Parkesh Rathor has shown himself as the owner of the vehicle. It is the case of the complainant that the registration certificate of the aforesaid vehicle was yet to be transferred in the name of transferee, but in the mean time, the vehicle in question during the intervening period of 23rd/24th February, 2004 was stolen from Sanjauli wherein it was parked. As such the insurance claim was preferred with the OP-Company because the vehicle in question was duly insured with OP-Company for a sum of Rs.1,75,000/-.



5. However, according to the OP-Company, the vehicle in question was insured by the original owner Shri Jagat Singh Negi as is evident from the copy of insurance cover Annexure C-1 vide which it was insured w.e.f. 07.11.2003 to 06.11.2004. Therefore, on the date, of theft i.e. 24.02.2004, it was insured in the name of Shri Jagat Singh Negi, the original R.C. holder of the vehicle. Whereas according to the transferee Shri Laxmi Parkesh Rathor it had been sold to him by original owner Shri Jagat Singh Negi in October, 2003 after receiving the full sale consideration and the possession of the vehicle was also delivered to him on 18.10.2003. This fact is evident from the copy of the affidavit Annexure P-1 placed on record by the complainant. The complainant also placed on record the copy of other affidavit Annexure R-2 which is affidavit of transferee Shri Laxmi Parkash Rathor wherein it has been alleged that he had purchased the vehicle from the original owner Shri Jagat Singh Negi on 18.10.2003 as this affidavit was sworn in by vendee Sh. Laxmi Prakash Rathor on 18.10.2003 and possession of vehicle was delivered to vendee Shri Laxmi Parkash Rathor on 18.10.2003, whereas the insurance policy was renewed in the name of the original owner on 07.11.2003 up to 06.11.2004 when the transferee Shri Laxmi Singh Rathor had already purchased the aforesaid vehicle in question from the original owner Shri Jagat Singh Negi on 18.10.2003 after making payment of the entire sale consideration and its possession was with him. Thus, it is not understood as to how the vehicle in question instead of insuring it in the name of the transferee, it was again insured in the name of the original owner Shri Jagat Singh Negi.



6. As such, manifestly the privity of the contract regarding insurance of the vehicle in question was between Shri Jagat Singh Negi and the OP-Company and not between vendee-transferee Shri Laxmi Parkash Rathore and the OP-Company. However, the transferee Shri Laxmi Parkash Rathor was legally required to intimate the insurance company regarding the transfer of the vehicle in question in his name requesting the insurance company to transfer the insurance policy in his name. As such, if the insurance policy is not transferred in the name of the subsequent transferee and the vehicle is damaged in accident or it is stolen during the currency of the insurance policy, the transferee is not entitled to be indemnified by the insurer, i.e. insurance company because the insurance policy is a privity of contract between the insurer and the insured and in case of any loss of the insured vehicle, the insured only is entitled to be indemnified by the insurer i.e. insurance company and not the subsequent transferee, if the insurance policy is not transferred in his name. On this point, we are supported by the case law authority as reported in 1996 ACJ 65 Supreme Court of India in case Complete Insulations (P) Ltd. Versus New India Assurance Co. Ltd., as relied upon by the learned counsel for the OP-Company. As there being no privity of contract between the subsequent transferee Shri Laxmi Parkesh Rathor and the OP-Company, therefore, the OP-Company is not legally bound to indemnify him, i.e. subsequent transferee for the loss of the vehicle and as such the insurance claim preferred by the subsequent transferee was rightly repudiated by the OP-Company vide letter Annexure-3.



7. For the foregoing reason and discussion, we are of the considered opinion that there is no substance in the complaint. As such, it being merit less and vexatious, is liable to be dismissed.

Sohan Lal Prop. M/s Screen Printing situated at 804, Baba Gajja Jain Colony, Moti Nagar, Ludhiana.

….Complainant.

Versus



National Insurance Company Limited through its Divisional Officer, Divn. No.4, Chowk Kesar Ganj, Ludhiana.

….Opposite party.


O R D E R

1- Insured Maruti car bearing no.PB-10AM-9372 vide insurance policy no.404500/31/06/610002668, valid from 1.3.2007 to 29.2.2008, was stolen on 19/20th March, 2007. Qua such theft, police report was made in P.S. Focal Point, Ludhiana. Police subsequently, recovered the vehicle from the thieves, who are facing trail before the Judicial Magistrate, Ludhiana. At the time of recovery of the vehicle, it was in damaged condition, qua which, reported was made to opposite party, who got surveyor Sukhvir Singh appointed. He after inspection, submitted report that at the time visit of surveyor, alleged LPG gas kit was found fitted in the vehicle, which act was pointed to the surveyor, while taking delivery of the vehicle from the police. But LPG gas kit was never installed by the complainant in his car. It was an unauthorized act done by thieves, by getting LPG gas kit installed in the car. Therefore, rejection of the claim vide letter dated 19.12.2007 by opposite party, on ground that LPG gas kit was fitted in the vehicle, is arbitrary and wrong, amounting to deficiency in service. Hence, this complaint u/s 12 of the Consumer Protection Act, 1986, seeking total amount of Rs.42000/- for damages and Rs.50000/- for harassment.


2- Opposite party admitted obtaining insurance policy qua his car from them by the complainant. They have justified repudiation of the claim, on ground that surveyor found the LPG gas kit fitted in the car. He had as such changed mode of fuel of vehicle from petrol to gas kit, without permission of Motor Registration Authority. Nor, had disclosed this fact to the insurance company, while purchasing the policy. He would have been required to pay difference of road permit of use of both the fuels and changed use of fuel, without paying premium for use of gas kit. As such, he has concealed material facts. So, the claim was rightly repudiated. Averred that complainant has concocted false story qua putting LPG gas kit by thieves, after theft of the car. He has levelled false and frivolous allegations qua it. Further averred that complainant is doing commercial activities, so not entitled to any claim. There is no deficiency ins service on their part and complaint deserves dismissal.


3- Both parties adduced evidence in support of their claims and stood heard through their respective counsels.


4- The undisputed and proved aspects on the record, are that the complainant got insured his car with opposite party, under insurance certificate Ex.C1. Complainant lodged FIR Ex.C2 about theft of the insured car, on the inventing night of 19/20th March, 2007. This car was recovered by the police from thieves on 29.3.2007. Complainant thereafter, took possession of the car from the policy and found it in damage condition, qua which, lodged insurance claim with opposite party, who consequently, vide letter Ex.C7(Ex.R3), repudiated the same. Repudiation is based on the ground that while obtaining insurance policy, had not disclosed installation of LPG gas kit in the car. When complainant obtained the insurance policy, qua the car, the same was not fitted with LPG gas kit. Rather, it was a petrol car, as recorded in RC Ex.R11. On recovery of car from thieves, when found it damaged, lodged claim with opposite party, by filling claim form Ex.C3 and sending letter Ex.C4. Then opposite party vide communication Ex.C5 dated 27.11.2007, intimated complainant that the car was fitted with LPG gas kit, which fact was not disclosed at the time of purchasing the policy. Hence, sought clarification from him. Complainant then, vide reply Ex.C6, intimated opposite party that he had no knowledge regarding gas kit fitted in the vehicle and that gas kit wasn’t installed by him. He took delivery of the vehicle from policy on 29.3.2007 only. LPG gas kit might have been installed by the thieves.


5- This reply of the complainant was not digested by the opposite party, who vide communication Ex.C7 dated 19.12.2007, repudiated the claim. It is contended in these circumstances on behalf of opposite party that had complainant disclosed while purchasing the policy that LPG gas kit was also fitted in the car, extra premium would have been claimed from him, before issuing the policy. So, he suppressed material information, to save few chips. Therefore, under contract of insurance policy Ex.R2, they were justified in repudiating the claim, for not disclosing clearly, all material aspects of the case.


6- It is in such scenario, for us, to decide whether LPG gas kit was fitted in the car by the complainant or it was the job of the thieves, who had stolen the car and this they did without knowledge, sent or approval of the complainant. Though car was taken possession by the complainant from the policy on 29.3.2007 and intimation qua damage was given by him to opposite party vide communication Ex.C4 dated 3.4.2007. In this letter, there is no reference of car having LPG gas kit, in addition to petrol tank. The complainant put such theory that LPG gas kit was not in the car originally and might have been installed by the thieves, saw light of the day for the first time, under communication dated 3.12.2007 Ex.C6, sent to opposite party, in reply to their letter Ex.C5 dated 27.11.2007.


7- In this summary enquiry, it is not possible for us, to decide whether LPG gas kit was fitted in the car by the complainant, after purchase of the car without permission of the Licensing Authority. Because it is not a factory LPG kit fitted in the car. Had been so, RC would have reflected it as DUO car. So, it means at the time of purchase of the car, there was no LPG gas kit and there is nothing on record that it was fitted subsequently.


8- Argued on behalf of opposite party that thieves would have gained nothing much, by adding additional fuel mode to the vehicle, by spending any amount on vehicle, for acquiring of which, spent nothing from their own pocket. Such aspect required further investigation, inquiry, by recording detailed evidence, providing opportunity of cross examination of witnesses of each other. Only then and then, truth would come out. In summary inquiry, we are unable to decide this point, in the absence of any material on the record.


9- Therefore, we relegate the complainant to get such controversy decided from a civil court, whether it was he, who got the LPG gas kit installed in the vehicle unauthorisedly or such act was done by thieves. If decision on this controversy, comes through court of appropriate jurisdiction, in favour of the complainant, then in that event, opposite party would be liable to settle claim of the complainant, in terms and conditions of the policy.

1. The facts in this case are as follows :-

The complainant availed a hospitalisation and domiciliary hospitalisation benefit policy from the 1st opposite party. Mediclaim for Rs. 10,331.82 was made to the opposite parties for the treatment of her mother. No action has been taken by the opposite parties and hence caused a lawyer notice to them, for which they replied that the ailment of the applicant was existing prior to the inception of the policy. Thereby the complainant is before us seeking reliefs against the opposite parties to pay the insurance claim together with compensation.


2. The 1st opposite party filed version raising the following the contentions :-

i) The complainant's mother have undergone treatment for Lumbar Spondylosis from 11-06-07 to 12-08-07 at Indira Gandhi Co-operative Hospital, Ernakulam.

ii) On perusal of the claim papers, it was found that she had undergone treatment for the same ailment during 08-04-2002 - 19-04-2002 prior to the inception of the 1st policy on 24-06-03.

iii) Since the ailment was pre-existing the claim papers were returned to the complainant.

iv) The 1st opposite party requests to dismiss the complaint.


3. Though notice of this complaint was received from this Forum, the 2nd opposite party was absent during the proceedings. The complainant was examined as PW1, Exts. A1 to A5 were marked from her side. No oral evidence was adduced by the 1st opposite party Exts. B1 to B5 were marked from their side. Argument note was filed by the 1st opposite party, the respective counsel were heard.


4. The points considered by us :-

i) Whether the complainant is entitled for
the mediclaim?

ii) Compensation and cost?


5. Point Nos. i) and ii) :- It is not in dispute that the complainant has been holding valid policy issued by the 1st opposite party since 24-06-03. It is also not in dispute that the claim of the complainant was repudiated by the 1st opposite party by Ext. B4 letter dated 26-12-07 stating that the ailment was pre-existing. Ext. B3 discharge summary issued from Ernakulam Medical Centre would show that the mother of the complainant had undergone treatment for the period from 08-04-2002 to 19-04-2002. Her disease was diagnosed as “Lumbar Canal Stenosis with L5-SI Disc Prolapse.” On 16-04-02 the operation was conducted on her. The complainant claims mediclaim of her mother for the treatment availed from 11-06-07 to 14-06-07 at Indira Gandhi Co-operative Hospital, Kochi and as per Ext. A3 certificate her disease was diagnosed as “Lumbar Spondilosis, VBI worsened by anxiety”. In Ext. B3 discharge certificate the condition of the patient at the time of discharge was as follows :-
“Afebrile, ambulant
No radicular pain, no new deficits
Bowel/bladder functions-Normal”


It show that the patient was discharged as perfectly alright condition on 25-04-2002. There is no evidence before us either documentary or oral to prove that the ailment as mentioned in Ext. B3 and the present ailment as pointed in Ext. A3 have direct nexus between each other. The 1st opposite party is not supposed to reject the claim of the complainant stating that both the diseases were diagnosed as Lumbar Spontilosis. The second treatment was taken by the patient after more than 5 years. Hence we are of the view that there is no merit in the contention raised by the 1st opposite party that the disease was pre-existing. Hence the repudiation amounts to deficiency in service. Considering the facts and circumstances of the case, we are not ordering compensation and cost.


6. Accordingly, we allow the complaint and direct that

I) the 1st opposite party shall pay Rs. 10,332/- by way of mediclaim to the complainant.

ii) the amount shall carry 12% interest p.a. from the date fixed from compliance of this order till realisation.

K. Annadurai,

s/o late Karuppannan

Kathapalli Post,

Sellappampatti Via.,

Namakkal Taluk and District. .. Complainant



/versus/



1. Golden Trust Financial Services,

6/16, Vysnavi Complex, 2nd Floor,

Rangakonar Street,

Kattoor, Coimbatore.



2. The Senior Divisional Manager,

National Insurance Co. Ltd., Division.III,

8, Indian Exchange Place(Gr. Floor),

Kolkatta 700 001. … Opposite parties

ORDER

1. The crux of the complaint is : -

The complainant had taken Janatha Personal Accident claim policy of the second opposite party, the principal insured being the first opposite party vide policy No. 100300/47/01/9600022/03/96/30169 for the period covering 15.8.2003 to 14.8.2008 for Rs.2,00,000/-. On 1.10.2003 at about 5.30P.M.,, when the complainant was engaged in fitting fire gun in Vinayaga Fire Equipment Shop at KAR Complex Building, Salem Road, Namakkal due to gas leak from the fire


extinguisher cylinder the complainant suffered burn injuries in his left eye as result of which the complainant lost his left eye sight. The complainant had undergone treatment for fitting artificial eye and enucleating was done on 13.10.2003 in Aravind Eye Hospital, Coimbatore. The complainant submitted all the necessary original documents on 12.1.2004 to the first opposite party. The 1st opposite party had forwarded the same to the 2nd opposite party on 16.7.2004. But the claim has not been settled. The complainant issued lawyer notice on 4.9.2007 and the first opposite party replied on 11.9.2007 stating that the policy was issued by the 2nd opposite party. The claim was not settled and the complainant is entitled for 50% of the sum insured since he has lost his one eye vision. The complainant has alleged deficiency in service and has lodged this claim to direct the opposite parties to settle the claim, pay compensation, cost etc.



2. Eventhough the first opposite party has appeared through their counsel, they have not filed any written version. The second opposite party has chosen to set Exparte.

3.

3. The point for consideration is whether there is any deficiency in service on the part of the opposite parties and if so what relief the complainants are entitled for?



4. POINT : The complainant to prove his case has filed proof affidavit along with 15 documents and the same has been marked as Exhibits A1 and A15.



5. The complainant had taken Janatha Personal Accident claim policy of the second opposite party vide policy No. 100300/47/01/9600022/03/96/30169 for the period covering 15.8.2003 to 14.8.2008 for Rs.2,00,000/-. The principal insured being the first opposite party. The copy of the policy has been produced and marked as Exhibit A1 by the complainant. On 1.10.2003 at about 5.30P.M. when the complainant was engaged in fitting fire gun in Vinayaga Fire Equipment Shop at KAR Complex Building, Salem Road, Namakkal due to gas leak from the fire extinguisher cylinder the complainant suffered burn injuries in his left eye as result of which the complainant lost his left eye sight.

The Namakkal Police has filed d criminal case u/s 285, 336, 338 IPC in Crime No. 1703/2003 and the copy of the said FIR has been produced and placed before us as Ex.A2 to substantiate the accident/occurrence. The complainant had undergone treatment for fitting artificial eye and enucleating was done on 13.10.2003 in Aravind Eye Hospital, Coimbatore. Exhibit A7 to A10 speaks about the injury nature of treatment provided and the disability. The complainant submitted all the necessary original documents on 12.1.2004 to the first opposite party. The copy of the said letter has been produced and marked as Exhibit A5 by the complainant. The 1st opposite party had forwarded the same to the 2nd opposite party on 16.7.2004. A copy of the same has been produced and placed before us as Exhibit A11.

But the claim has not been settled. The complainant issued lawyer notice on 4.9.2007 and the first opposite party replied on 11.9.2007 stating that the policy was issued by the 2nd opposite party. The copy of the lawyer notice and reply received from the first opposite party has been produced and placed before us as Exhibits A12 and A13. The second opposite party has neither settled the claim nor repudiated the claim but has been sitting over the same for over five years without taking any action. The second opposite party has not even bothered to reply to the complainant. The act of the second opposite party definitely amounts to gross deficiency in service coupled with negligence. The principal insured i.e. first opposite party has forwarded the claim papers in time to the second opposite party and has also sent reminders to the insurance company and has done their duty and therefore, we are not inclined to fasten any liability on the first opposite party.

On perusal of the documentary evidences placed before us and in view of the above discussions we have no hesitation to hold the act of the second opposite party as deficiency in service. The deficiency in service would have definitely resulted in mental agony, paid and anguish to the complainant and hence the complainant is entitled for compensation for mental agony. In view of the above discussions. We hold that the second opposite party is liable to settle the claim amount of Rs.1,00,000/- to the complainant along with interest at the rate of 9% per annum from the date of the accident, i.e., from 1.10.2003 till the date of payment. The second opposite party is further directed to pay Rs.5,000/- as compensation for mental agony and Rs.1,500/- as cost of the complaint to the complainant. Point is answered according.



6. In the result, the complaint is allowed and the second opposite party is directed to settle the claim amount of Rs.1,00,000/- to the complainant along with interest at the rate of 9% per annum from the date of the accident, i.e., from 1.10.2003 till the date of payment. The second opposite party is further directed to pay Rs.5,000/-(Rupees five thousand only) as compensation for mental agony and Rs.1,500/-(Rupees one thousand and five hundred only) as cost of the complaint to the complainant. The complaint as against the first opposite party is dismissed. Time for payment one month from the date of this order.

1. E.Tamilarasi,



2. Minor Ganeshkumar aged 15years

Rep. by his mother E.Tamilarasi,



3. Pappayee Ammal



4. Kandasamy

all are residing at Malaikkoviloor,

Moolappatti Post, Aravakurichi TK,

Karur District. … Complainants



-versus-



M/s. National Insurance Co., Limited

by its Branch Manager,

63, West Pradakshnam Road,

Karur 639 001. … Opposite Party

ORDER



1. The crux of the complaint is : -

The 1st complainant is the wife, 2nd complainant is the son, 3rd complainant is the mother and 4th complainant is the father of deceased K.Elangovan. The said K.Elangovan is the owner of Bajaj 307 van bearing Reg. No. TN 37 L 5154. The said van was insured with the opposite party vide policy No. 651501/31/04/6708219 for the period covering 10.03.2005 to 09.03.2006. On 18.10.2005 at about 10.30P.M. in Karur-Dindigul Road while the said K.Elangovan was driving his empty van TN 37 L 5154 for his personal use a lorry bearing No. TN 69-K 6336 coming from opposite side dashed against the van and the said Elangovan sustained multiple injuries and died in the spot. The Aravakurichi Police has registered a case in Cr.No. 285/2005. The complainants are the dependants and legal heirs of deceased Elangovan and as per the policy they are entitled to Rs. 2 lakhs. Inspite of the requests the opposite party has not issued the claim form. The complainants have sent a lawyer notice. The complainant alleges deficiency in service and lodged this complaint to direct the opposite party to settle the claim of Rs. 2 lakhs, compensation, cost etc.,



2. The crux of the contentions of the opposite party in the written version is :

The opposite party has denied every averments made in the complaint. The opposite party after having informed about the accident and the death of the insured requested the complainants to submit claim form with necessary documents such as FIR, RC book, driving license, post mortem certificate etc. as required in the policy and the complainant instead of producing the same has filed this complaint. If at all the complainants produced the required documents, the opposite party might have processed the claim expeditiously and hence there is no deficiency in service on their part and hence the complaint has to be dismissed.



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



4. The complainant to prove his case has filed proof affidavit along with 10 documents and the same has been marked as Exhibit A1 to A10. The opposite party to prove their case has filed proof affidavit along with one document and the same has been marked as Exhibit B1.



5. The 1st complainant is the wife, 2nd complainant is the son, 3rd complainant is the mother and 4th complainant is the father of deceased K.Elanagovan. The copy of the legal heir certificate has been produced and placed before us as Exhibit A4. The said K.Elangovan is the owner of Bajaj 307 van bearing Reg. No. TN 37 L 5154. The RC of the vehicle has been produced and marked as Exhibit A8 by the complainant. The said van was insured with the opposite party vide Policy No. 651501/31/04/6708219 for the period covering 10.03.2005 to 09.03.2006. The copy of the policy has been produced and marked as Exhibit A10 by the complainant and as Exhibit B1 by the opposite party. On 18.10.2005 at about 10.30P.M. in Karur-Dindigul Road while the said K.Elangovan was driving his empty van TN 37 L 5154 for his personal use a lorry bearing No. TN 69 K 6336 coming from opposite side dashed against the van and the said Elangovan sustained multiple injuries and died in the spot.

The post mortem report has been produced and placed before us as Exhibit A2 by the complainant. The Aravakurichi Police has registered a case in Cr.No. 285/2005. The copy of the FIR has been produced and placed before us as Exhibit A1. A perusal of Exhibit A1 it can be noticed that the vehicle number has been wrongly mentioned as TN 37 L 5754. The complainant has stated that by mistake the vehicle number has been wrongly mentioned in the FIR but the name of the owner has been stated correctly and the other documents proves the accident that resulted in death of Elangovan. The complainant had issued a lawyer notice on 17.6.2006 along with FIR copy, post mortem report, policy, driving license, RC and the same has been received by the opposite party on 19.6.2006. The copy of the lawyer notice and the acknowledgement card has been produced and placed before us as Exhibits A5 and A7.

The opposite party even after receipt of the notice had not issued the claim form to the complainant to facilitate processing of claim nor had sent any reply to the complainant. This clearly establishes the grievances of the complainant. The inaction on the part of the opposite party; and the non-issuance of the claim form clearly amounts to negligence and gross deficiency in service. In view of the above discussion, we have no hesitation to hold the act of the opposite party as deficiency in service. The non-settlement of the claim would have definitely caused mental agony to the complainants and as such they are entitled for compensation. So, we are of the opinion that the opposite party is liable to settle the claim amount of Rs.2,00,000/- to the complainants along with interest at the rate of 7.5% per annum from the date of this complaint, i.e. 31.7.2007 till date of payment. Further the opposite party is also liable to pay Rs.2,000/- as compensation for mental agony and Rs.1,500/- as cost of the complaint to the complainants. Point is answered accordingly.



6. In the result, the complaint is allowed and the opposite party is directed to settle the claim amount of Rs.2,00,000/-(Rupees two lakhs only) to the complainants along with interest at the rate of 7.5% per annum from the date of this complaint, i.e. from 31.7.2007 till date of payment. Further the opposite party is also directed to pay Rs.2,000/-(Rupees two thousand only) as compensation for mental agony and Rs.1,500/- (Rupees one thousand and five hundred only) as cost of the complaint to the complainants. Time for payment one month from the date of this order.

1. Md. Yasin, s/o Late Ramjan Ali, village & P.O. Kotulpur, Cinematola,

Near State Bank of India, P.S. Kotulpur, Dist. Bankura. Dist. Bankura.



……………….Complainant.



V e r s u s

2(A) Branch Manager, National Insurance Co. Ltd., Bankura Branch,

Chandmaridanga, P.O., P.S, and Dist. Bankura.



(B) The Branch Manager, State Bank of India, Kotulpur Branch (A.D.B.)

P.O. & P.S. Kotulpur, Dist. Bankura.



……….…….Opposite Party.

The present case has been instituted by one Md. Yasin of village Kotulpur, P.O. & P.S. Kotulpur in the District of Bankura against the National Insurance Co. Ltd. as well as State Bank of India with an allegation of deficiency in service. The Petitioner prays for proper relief.



Case of the Petitioner / Complainant, in short, is that he runs a bedding-store in the locality called Cinematola in Kotulpur under the name and style HFG Bedding House. He is also a stockist of Cotton, Wool, Coir, etc.. To run such business the Complainant took loan from the O.P. No. 2(B), State Bank of India, Kotulpur Branch. The shop was insured with the O.P. No. 2(A) National Insurance Co., Bankura Branch at Chandmaridanga in Bankura under Shopers’ Insurance being Pilicy no. 150407/48/05/9800000883. The insurance coverage was to the tune of Rs.2 lacks only. The said policy was valid on and from 27.09.2005 to 21.09.2006. On 20.10.05 due to heavy downpour in the locality, where the shop of the Complainant is situated, was submerged under water and consequently, the rain water entered into the shop causing damage to the stock-in-trade and in the result, the Complainant suffered loss to the extent of Rs.60, 000/- only. The matter was informed to the

Kotulpur Police Station on 21.10.2005 and a G.D. Entry being no.777 date 21.10.2005 was made. Simultaneously, the O.P. no. 2(B) was also informed.



Thereafter on 08.11.05 “Claim Form” was submitted to the O.P. no. 2(A) demanding compensation to the tune of Rs.60, 000/- only. The Prodhan of Kotulpur Gram-panchayet and the Block Development Officer, issued certificate in support of the claim of the Complainant

/ Petitioner. On 12.11.05 the Assessor / Surveyor of the Insurance Co. went to the site and made survey. Certain documents were demanded by the Surveyor and the documents were submitted by the Complainant. The shop of the Complainant was hypothecated with the O.P. No. 2(B), State Bank of India, Kotulpur Branch. O.P. 2(A), National Insurance Co., sent one discharge voucher for Rs.3927/- only to the Bank for payment against insurance claim in favour of the Complainant. The same was communicated to the Complainant by the State Bank of India vide a letter. Complainant raised objection but no fruitful purpose was served. Hence, this case with prayer for proper compensation for damage with interest. He also prays for an order to pay Rs.40, 000/- only as compensation for harassment and mental agony suffered by him.





On receiving notice issued by this Forum the O.P. 2(A) entered appearance and contests the case by filing written version. Insurance Co. denies extent of damage, as shown by the Complainant. At the relevant time the sock-in-trade, as shown by the Complainant, was not true, correct and based on record. According to the O.P. 2(A) the claim, as raised by the Complainant, is inconsistent with the Bank statements. Damaged goods could not be shown by the Complainant to the contesting O.P.. He even failed to show any photograph of the same. Claim of the Complainant is not based on the evidence on record. Compensation given by the O.P. 2(A) was just and proper and in conformity with the loss and damage actually suffered by the Complainant. He is not entitled to get any further compensation and as such, the case is liable to be dismissed.



O.P. 2(B) did not appear in the case.



The main points for consideration are :- (1) If there is any deficiency in service from the side of the O.Ps. (2) Whether the compensation given by the O.P. 2(A) was just and proper and (3) Whether the Complainant is entitled to get any relief and if so, to what extent?



Decision with reasons.



Although opportunity was extended to both the parties, they preferred not to adduce any oral / verbal evidence by way of examination of witness. Parties wholly relied upon the documentary evidence.



Firstly, let us see whether the Complainant / Petitioner comes under the purview of section 2(d) of the Consumer Protection Act. It is to be seen if he can be treated as a “Consumer” as per the definition given in the Act itself. Although this point was not urged by the contesting O.P. we have, at our own, tried to examine this question. On perusal of documents on record we are sure that the Complainant is strictly a “Consumer” as per the meaning of the word envisaged in section 2(d) of the Act. He was an Insurance Policy Holder under O.P. no. 2(A) and that he paid required premium for that. This is the admitted position. He preferred a claim before the O.P. 2(A) by virtue of that Policy and according to him, there was deficiency in service. The Complainant be treated as a “Consumer” and he has got every right to highlight his grievance as such.



Another point was also not urged at the time of hearing. The point relates to the period of limitation. As per the provision of section 24(A) of the Consumer Protection Act, District Forum shall not admit any complaint unless it is filed within two-years from the date on which the cause of action has arisen. We have examined this question as well in the perspective of the available materials on record. Here too we have no doubt that the case was initiated within the period of limitation, as noted in section 24(A) of the Consumer Protection Act.



We now pass on to the incident in which the Complainant is stated to have suffered loss and injury. Incident reportedly took place on 20.10.2005 when there was heavey downpour in Kotulpur where the shop of the Complainant is located. The Insurance Policy was valid on and from 27.09.2005 to 21.09.2006. On the face of it, the date of incident falls well within this period. This is not challenged. Incident too was not challenged by the contesting O.P.. The vital and pivotal question relates to the extent of damage suffered by the Complainant. According to the Complainant, he suffered loss to the extent of Rs.60, 000/- only while according to the contesting O.P., the extent of damage was to the tune of Rs.3927/- only in terms of money and this amount was sent to the Complainant’s Banker in the shape of a discharged voucher in favour of the Complainant. Furthermore, O.P. has got to say that assessment of damage was correctly and properly done leaving no scope to make any assumption or presumption. Here lies is only dispute between the parties.



It is true that on the very next day the fact of damage reportedly sustained by the Complainant, was reported to P.S. Kotulpur in writing and one G.D. Entry bearing no. 777 dated 21.10.2005 was made.



In the record we find existence of a mass petition addressed to the O.P. no. 2(A) over the incident. This application was made on the very next day and the same was signed by as many as sixteen persons of the locality. This letter discloses that the Complainant suffered loss to a great extent since his shop was submerged under water due to heavy rainfall. It further appears that on the very same date the O.P. 2(B) was also duly informed by the Complainant in writing. What we mean to say is that the G.D. Entry in Kotulpur P.S., mass application to the O.P., Complainant’s letter to the O.P. 2(B) etc. cannot be a matter of afterthought. Simultaneously, these materials on record should not be viewed casually. All these were done soon after the occurrence. It may be that there was difference over the extent the damage in terms of money ; but such materials on record should not be totally thrown away.



Besides, the Block Development Officer, Kotulpur issued a certificate on 13.12.2005 and substantiated the claim of the Complainant by making a declaration that he suffered loss due to an incident which took place on 20.10.2005 at Kotulpur. As per his estimation, the Complainant suffered loss to the extent of Rs.40, 000/- only. Of course, it is not clear how the B.D.O. arrived at such estimate. It is also true that this figure differs from the figures mentioned in the earlier noted letters the G.D. Entry. But one thing is very clear that the Complainant suffered damage and loss. This fact was further supported by the Prodhan, Kotulpur Gram-Panchayet. He too issued a certificate, of course without stating the extent of damage. In any view of the matter, all the above noted documents cannot be loosely looked into – they definitely carry some meaning.



While canvassing the O.P.’s case before us the Ld. Advocate referred to some vouchers showing purchase of different materials by the Complainant for commercial purpose. Ld. Advocate for the contesting O.P. also referred to the Stock & Purchase Registers of the shop of the Complainant. The documents were all filed by the Complainant himself. Referring to the aforesaid documents O.P. pointed out certain anomalies in entries of stock-in-trade and sale of goods during the relevant period and tried to impress upon us that stock of materials was much less than what has been shown by the Complainant. On the basis of that, the O.P. has got to say that the Complainant failed to establish his claim which appears to be fictitious and imaginary. We have carefully perused the purchase vouchers as well as the Registers referred to above. It is true that certain irregularities exist there in the Registers.

A few entries in the Register do not find documentary support. But in our considered opinion, it alone cannot wholly dislodge the case of the Complainant particularly when there are other evidences in the record, as mentioned earlier, which lead to believe that Complainant suffered loss more than what had been assessed by the Insurance Co.. Of course, it is equally true that Complainant failed to prove that the extent of damage was to the tune of Rs.60, 000/- only. Taking all the noted aspects together, we are of the view that Complainant is entitled to get compensation more than what has been offered by the Insurance Co., but definitely less than what has been claimed by him. With such view of the matter, we think that an amount of Rs.20, 000/- only may be good enough to compensate the loss and damage suffered by the Complainant including the mental agony. The case of the Complainant is established in part. Fee paid appears to be correct.


Accordingly, it is

ordered

that the case of the Complainant Md. Yasin is allowed in part on contest.


The Complainant is entitled to get Rs.20, 000/- (twenty thousand) only from the O.P. no. 2(A) for loss and damage suffered by him on 20.10.2005 against the claim made through Shopkeeper’s Insurance Policy bearing no. 150407/48/05/9800000883. The O.P. 2(A) is to make payment of the aforesaid amount of money to the Complainant within sixty days from the date of this order failing which interest @ 8% p.a. thereupon shall run from this date till the date of payment of money in full.

Sh. Chatter Singh, son of Shri Ali Ram, resident of village Ajog, PO Parthi, Tehsil Pangi, District Chamba (HP)

Complainant

Versus



The Oriental Insurance Company Limited, Akhara Bazar, Kullu, HP through Branch Manager, The Oriental Insurance Company Ltd. Palampur, District Kangra (HP)



Opposite party


The complainant, Sh. Chatter Singh, being owner of Tractor No.HP-45-0116(hereinafter referred to as vehicle) had got it insured with opposite party for a sum of Rs.2,20,000/- vide Policy No.001/00333 on dated 26.7.2005, valid upto 30.7.2006. It is alleged that the complainant was having a valid driving licence upto 22.8.2004 of Light Motor Vehicle. He was driving this tractor on 26.4.2006 near Seu-Nala and it had met with an accident due to its’s mechanical failure. It had gone 100 meters, away and had got totally damaged. F.I.R. No.3/06 was lodged in P.S. Pangi about this accident.. The complainant had submitted the claim papers for settlement of his claim with the opposite party, but they had rejected his claim vide their letter dated 23.1.2006 on two grounds; firstly; that the complainant was having driving licence of Light Motor Vehicle only and he did not possess the fitness certificate of this vehicle, which had met with an accident due to DRNG Link and due to break failure.

The complainant has contended that his vehicle is in the custody. He has claimed re-imbursement of the amount of the Insurance Policy to the tune of Rs.2,20,000/-, and has also claimed the maintenance charges to be paid @ Rs.1500/- per day w.e.f 26.4.2006 till it’s realization. He has contended that weight of the tractor was 1840 Kgs and Light Motor Vehicle is valid upto 7500 Kgs. Since the opposite party has been deficient in their services to re-imburse his Insurance Claim of Rs.2,20,000/-, so he has claimed interest @ 18% per annum from the date of accident till it’s actual realization, and has also claimed Rs.50,000/- as compensation on account of mental agony, inconvenience and harassment and has claimed litigation charges of this complaint.

2. The opposite party has contested this complaint by filing their reply on 3.9.2007 in which they have contended that this complaint is pre-mature, as the accidental vehicle has not been got repaired by the complainant, and he has concealed the material facts from this Forum. They have contended that the complainant did not have valid driving licence, and he did not possess fitness certificate of the vehicle (tractor), at the time of the accident. They have contended that they have verified from Registering and Licensing Authority, Killar(Pangi), District Chamba and came to know that the fitness of this vehicle was valid only upto 6.8.2005. They had got the mechanical examination of this accidental vehicle from the Mechanic/Incharge of HRTC Workshop at- Killar. It was revealed that the accident had occurred due to breaking of end of Drag Link and brusting of break pipe. They had also deputed independent Surveyor Sh. Garish Kumar, who had assessed the damage/loss of this vehicle to the tune of Rs.1,68,000/- only. They have contended that this amount of Rs.1,68,000/- was payable only, if there was no breach of terms and conditions of the Insurance policy. They have prayed for dismissal of this complaint.

3. The complainant has re-asserted the allegations of this complaint, in his rejoinder, filed on 2.11.2007. The following points were framed for determination by this Forum on 14.1.2008:-

1. Whether O.Ps committed deficiency in service, as alleged? OPC

2. Whether the complaint is not maintainable, as alleged? OPOPs

3. Relief

4. We have heard the arguments of learned counsel for both the parties and have carefully gone through the case file and evidence on record. For the reasons to be recorded hereinafter while discussing the points for determination, our findings on the aforesaid points are as under:-

Point No: 1: Yes

Point no.2: No

Relief The complaint is partly allowed as per operative part of the order

REASONS FOR FINDINGS

POINTS NO.1 AND 2

5. Since, points no.1 and 2 are inter-linked, so in order to avoid repetition of appreciation of facts/evidence and law point on the file, both these points are taken up together for the purpose of discussion.

6. Section 2(44) of the Motor Vehicle Act, defines “tractor” as under:-

“tractor” means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion), but excludes a road roller”

It is clear that tractor is not meant to carry any passenger or to carry any load. A Trailer has been defined in Section 2(46) as under:-

“Trailer” means any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle. When a trailer is attached to the tractor, the trailer can be used for carriage of goods.”

7. In the present case, only tractor was insured with the opposite party. It is not clear from this file that for which purpose, that tractor was got insured. There is no iota of evidence on the file that the complainant had violated any terms and conditions of the Insurance Policy.

8. Under the provisions of Motor Vehicle Act, 1988 “Motor Vehicle” is defined under section 2(28) A. Goods carriage and transport vehicles are defined in sections 2(14) and 2(47). From the perusal of aforesaid definitions, it is clear that the goods vehicle is a motor vehicle constructed or adapted for the use of carriage of goods. There can be no doubt that a trailer is constructed for carriage of goods, but when it is pulled by a tractor. Both together constituted a transport vehicle i.e. a ‘goods vehicle”. Though, tractor itself is not a goods carriage, but if it is used with trailer for business-purpose, this tractor/trailer would be goods carriage.

In the instant case, it is not specifically mentioned in the registration certificate that for what purpose, the HMT tractor was purchased by the complainant. There is no iota of evidence that complainant also possessed any trailer alongwith his tractor and moreover, admittedly the tractor alone was being driven by the complainant on the road, at the time accident, so it is crystal clear that the tractor is not to be treated as goods-carriage. It is only Light Motor vehicle because as per R.C., its un-laden weight is mentioned to be 1840 kilograms. Section 2(21) of the Motor Vehicle Act, 1988 deals with Light Motor Vehicle which means the transport vehicle weight of which does not exceed 7500 kilograms. Section 2(47) deals with transport vehicle which means a public service vehicle, a goods carriage or a private service vehicle.

A conjoint reading of the aforesaid, two sub sections, undoubtedly reveals that a goods vehicle can also be a transport vehicle and light motor vehicle at the same time, provided its un-laden weight does not exceed 7500 kgs. Since, in the instant case, it is specifically mentioned in the registration certificate of the vehicle to be only HMT Tractor, and it’s un-laden weight is mentioned to be 1840 Kgs, so it is to be treated as Light Motor Vehicle only and the complainant was having a valid driving licence of LMV, at the time of accident of the tractor alone. So, we can say with certainty that there was no breach of the conditions of the Insurance Policy by the complainant in the instant case.

8. As regards, certificate of fitness of the vehicle, involved in the accident is concerned; we would like to mention that the perusal of Section 56 of the Motor Vehicle Act, 1988 indicates that what has been made necessary is that a transport shall not be deemed to be validly registered unless it carries a certificate of fitness. In other words, absence of certificate of fitness would be a dis-qualification for its registration, and by no stretch of imagination can it be deemed to be such a flaw so as to render the claim for indemnification against the Insurance Company to be in-valid. Section 56 of the Motor Vehicle Act, read with terms and conditions of the Insurance Policy makes it obligatory for a commercial vehicle to be declared fit for plying and to have a certificate of fitness in this behalf; otherwise, the claim for indemnification in case of its accident would be in-valid. Our own Hon’ble H.P. State Consumer Commission, Shimla in Latest HLJ-2004(HP), page 448 in case Oriental Insurance Company Versus Sh. Ramesh Chand, have taken this type of view.

Our own Hon’ble H.P. State Commission, in another case titled as Chet Ram Chauhan Versus United Insurance Company Ltd and another in (II) 1997CPJ-526, had held that repudiation of claim on the ground that certificate of fitness was not obtained, can not be considered the fundamental breach of the Insurance Policy so as to dis-claim the liability of the Insurance Company. As regards, the violation of terms and conditions of the Policy, the copy of the same is Annexure OP-3 on record in this case, our attention has been drawn by the learned counsel for the opposite party to the clause as regards the ‘Limits of Liability’, but there is no such specific term in that clause, which would support the defence of the Insurance company that in the absence of a certificate of fitness, the claim for indemnification can be repudiated.

9. Since, in the instant case, the complainant was having a valid driving licence to drive LMV, and was driving the tractor alone on the road, at the time of accident, during the currency of the Insurance Policy and the loss of the tractor has been assessed to beRs.1,68,000/- by the independent Surveyor Sh. Garish Kumar, in his-report,( Annexure OP-2), which remains un-rebutted on this file.. So, the complainant is entitled to get this amount of loss alongwith interest @ 9% per annum from the date of complaint, till it’s realization. We also assess Rs.20,000/- as compensation for his mental agony and harassment, due to repudiation of his genuine claim by the opposite party. We also assess a sum of Rs.1000/- as litigation charges. Hence, point no.1 is answered partly in affirmative and point No.2 is decided in negative.

Relief

10. In view of our findings on points No.1 and 2 above, the complaint is accordingly-partly allowed. We order the opposite party to pay Rs.1,68,000/- to the complainant alongwith interest @ 9% per annum from the date of complaint, till it’s actual payment. The opposite party is also directed to pay compensation to the tune of Rs.20,000/- on account of mental tension, agony and harassment and litigation charges to the tune of Rs.1000/- to the complainant within 30 days

Raj Kumar aged 43 years s/o Late Sh. Shanti Saroop c/o M/s. Raman Bros. Purhiran, District Hoshiarpur.

versus

1.

National Insurance Company Ltd., Divisional Office, Phagwara Road, Hoshiarpur, through its Divisional Manager.
2.

National Insurance Company Ltd., Registered Office : 3, Middlestone Street, Kolkata, through its Divisional Manager.

1.

The complainant namely Raj Kumar has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the complainant is the owner of vehicle No. PB07-J-5642. The complainant got the vehicle insured from the opposite parties- National Insurance Company Ltd.
2.

It is the allegation of the complainant that on 13.7.2008, when the said truck was on way to Gagret, the water which had collected due to heavy rain on the road, entered into the said vehicle, thus caused loss to the engine and A/C. The matter was reported to the opposite parties. That M/s. Vikaas Associates were deputed as Surveyor to assess the loss. The surveyor assessed the loss to the tune of Rs.12,075/-, whereas the actual loss to the vehicle was Rs. 50,770/-. The assessment made by the surveyor is not based on actual facts. The complainant approached the opposite parties to appoint another surveyor to assess the actual damaged caused to the vehicle, but they did not accede to the said request of the complainant, hence this complaint.
3.

The opposite parties filed the reply. The preliminary objections vis-a-vis maintainability, cause of action, commercial purpose, estoppel, concealment of facts, breach of terms of policy and jurisdiction were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the opposite parties have already settled and disbursed the claim amount of Rs. 11,124/-, as assessed by the surveyor, but the complainant has declined to receive the payment, without any just and probable cause. However, it is admitted that the vehicle in question is insured with the replying opposite parties. It is further replied that the driver of the vehicle wilfully and negligently made a forcible entry of the vehicle into the water, as such the damage to the vehicle was caused due to the carelessness of the driver. The surveyor assessed the loss to the tune of Rs. 12,075/-. It is denied that the complainant suffered loss to the tune of Rs. 50,770/-. The replying opposite parties are not liable to pay for anything got replaced or repaired beyond the scope of the loss caused to the vehicle. The claim has been finally settled by the replying opposite parties and was sent for disbursement vide registered letter dated 19.11.2008 alongwith cheque of Rs. 11,124/-, but the complainant refused to accept the payment, per endorsement dated 20.11.2008.
4.

In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, letter dated 6.10.2008 – Mark C-2, letter dated 31.10.2008 – Mark C-3, insurance policy – Mark C-4 (2 pages), bill dated 19.8.2008 – Mark C-5, bill dated 21.8.2008 – Mark C-6, bill for Rs. 7875/- - Mark C-7, survey report – Mark C-8, letter by the complainant – Mark C-9 and closed the evidence.
5.

In rebuttal, the opposite parties tendered in evidence affidavit of A.S. Kohli – Ex. OP-1, affidavit of Vikas – Ex. OP-2, claim form – Ex. OP-3, survey scrutiny report – Ex. OP-4, RC – Ex. OP-5, bill dated 14.7.2008 – Ex. OP-6, survey report – Ex. OP-7, insurance policy – Ex. OP-8, intimation – Ex. OP-9 and closed the evidence on behalf of the opposite parties.
6.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
7.

The other facts are admitted. The only controversy between the parties is whether the complainant is entitled to get the compensation of Rs. 50,770/- from the opposite parties on account of loss suffered by the vehicle No. PB07-J-5642. The answer to this is in the negative.
8.

The complainant has produced on record the bill amounting to Rs. 40,890/- - Ex. C-5, issued by Hoshiarpur Automobiles, Hoshiarpur. Besides this, neither the receipt of actual payment of Rs. 40,890/-, nor the affidavit of the authorized person of Hoshiarpur Automobiles, Hoshiarpur has been produced to prove the fact that the actual payment of Rs. 40,890/- has been made by the complainant on account of repair of the vehicle bearing registration No. PB07-J-5642. On the contrary, the opposite parties have produced on record the report of the surveyor – Ex. OP-7, qua which the surveyor has assessed the loss to the tune of Rs. 12,075/-. Since the complainant has failed to produce the receipt to prove the payment of Rs. 40,890/- to Hoshiarpur Automobiles, Hoshiarpur, therefore, the report of the Surveyor – Ex. OP-7 is to be accepted as the Surveyor is an expert and also an independent person to assess the damage caused to the vehicle of the complainant, thus we are of the opinion that the claim of the complainant can be allowed on the basis of the survey report – Ex. OP-7.
9.

As a result of the above discussion, the complaint of the complainant is accepted and the opposite parties are directed to pay Rs.12,075/- to the complainant (subject to deposit of salvage by the complainant) with interest @ 9% per annum from the date of filing of the complaint i.e. 15.1.2009 till realization alongwith litigation expenses of Rs. 1,000/- within one month. It is made clear that in case the complainant does not deposit the salvage, the opposite parties are at liberty to deduct the salvage value of Rs.800/- (as assessed by the surveyor) out of Rs. 12,075/-.

Manjit Singh aged 30 years son of Sh Manmohan Singh r/o VPO Bhangala Tehsil Mukerian District Hoshiarpur (Pb).

vs.

1.National Insurance Company Limited, G.T.Road,Mukerian Distt. Hoshiarpur throough its Branch Manager.

2 National Insurance Company Limited through its Divisional Manager, Chandigarh road, Hoshiarpur.

1.

The complainant namely Manjit Singh has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the complainant got comprehensively insured his truck (tipper) bearing registration no. PB-07-T-2998 from OP-1 on payment of premium of Rs.7236/- on 12.10.2007..
2.

It is the case of the complainant that said tipper met with an accident on 8.4.2008. The complainant spent Rs. 65.485/- on repair. . The complainant lodged the claim with the OPs alongwith original repair bills.
3.

It is the allegation of the complainant that vide letter dated 16.7.2008, the OP No.1 sought clarification from him . The complainant tendered the explanation. Again a letter dated 31.7.2008 was sent by OP No.1 , which was also duly replied. However, the claim of the complainant was not settled. Lastly, the complainant received letter dated 5.9.2008 qua which the claim was illegally repudiated , hence this complaint.
4.

OPs filed the joint reply Preliminary objections vis a vis maintainability and suppression of material facts were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant has suppressed the material fact that the vehicle is registered with the registering authority as 'TDV truck', whereas it was born out from its physical verification that the said vehicle is 'Telco Tipper'. . The said fact was not disclosed by the complainant at the time of getting the insurance policy The complainant has also failed to supply the requisite documents and required information sought by the OPs vide letters dated 16.07.2008 and 31.7.2008 It is admitted that the complainant informed the OPs regarding the damage suffered in the accident.

It is denied that the complainant spent Rs. 65,485/- on the repair of the vehicle. The surveyor was appointed to assess the loss, who assessed the net loss of Rs.25986/-, which included Rs.10446/- on spare parts and Rs. 17,000/- as labour charges in his report dated 22.8.2008. It is replied that the vehicle in question at the time of accident was loaded with Bajri but complainant failed to produce the load challan. The claim was repudiated vide letter dated 5.9.2008 on the ground that the complainant has not supplied the required information and requisite documents sought vide letters dated 16.7.2008 and 31.7.2008.
5.

In order to prove the case, the complainant tendered in evidence affidavit of and closed the evidence.
6.

In rebuttal, the opposite party tendered in evidence affidavit of affidavit and closed the evidence.
7.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
8.

The case of the complainant is that the truck (tipper) bearing registration no. PB-07-T-2998 was comprehensively insured with OP-1. That the said vehicle met with an accident on 8.4.2008. The complainant spent Rs. 65.485/- on repair. . The claim was lodged with the OPs. The OP No.1 sought clarification from the complainant vide letter dated 16.7.2008 and letter dated 31.7.2008 , which were duly replied. However,the claim was repudiated vide letter dated 5.9.2008.
9.

The OPs raised the defence that the vehicle is registered with the registering authority as 'TDV truck', whereas it was born out from its physical verification that the said vehicle is 'Telco Tipper'. . The said fact was not disclosed by the complainant at the time of getting the insurance policy. The OPs have also raised the defence that the complainant had not spent Rs. 65,485/- on the repair of the vehicle and as per survey report , the surveyor assessed the net loss of Rs.25986/-, which includes Rs.10446/- for spare parts and Rs. 17,000/- as labour charges vide his report dated 22.8.2008.
10.

Now the only point which calls decision from this Forum is whether the vehicle is registered with the registering authority as 'TDV truck”?
11.

The complainant has placed on record the copy of the insurance policy Ex. C-5 and its perusal makes it clear that the vehicle was insured with the OPs as “ Telco Ltd. Tipper”, therefore, the plea of the OPs that the vehicle is registered with the registering authority as 'TDV truck' cannot be accepted, thus, the OPs were not justified in repudiating the claim of the complainant.
12.

Admittedly, the complainant has not produced on record the receipt towards the payment of Rs.65,485/- nor has submitted any affidavit of the authorized representative of repair centers in support of the retail invoices Mark C-6, therefore, it looses its evidentiary value and on the contrary, the OPs have placed on record the report of the surveyor Ex.OP-8 qua which the loss to the vehicle in dispute had been assessed to the tune of Rs.25,986/- Since the complainant has failed to produce the receipt to prove the payment of Rs.65,485/- for repair of the vehicle, therefore,the report of the surveyor qua Ex.OP-8 is to be accepted as the surveyor is an expert and also an independent person to assess the damage caused to the vehicle of the complainant , thus, we are of the opinion that the claim of the complainant can be allowed on the basis of the survey report Ex.OP-8.
13.

As a result of the above discussion, the complaint is accepted and the opposite parties are directed to pay the claim amount of Rs.25,986/- to the complainant with interest @ 9 % per annum from the date of filing the complaint i.e. 29.1.2009 till realization alongwith litigation expenses of Rs.1000/- within one month from the receipt of copy of the order.