Thread: National insurance

Nargesh Begam,

Wife of Late Md. Nowsad,

Village Dukhin Bali Gora, Muriyatoli,

Post Office and Police Station – Chakulia,

District – Uttar Dinajpur. Complainant.



versus



1) The National Insurance Company Limited,

The Senior Divisional Manager,

Division – III, National Insurance Building,

8, India Exchange Place, Kolkata – 700 001.



Represented by,

The Branch Manager,

Raiganj Branch, Mohanbati, Raiganj,

Post Office and Police Station – Raiganj,

District – Uttar Dinajpur, West Bengal.



2) The Golden Multi Services Club Limited,

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

K O L K A T A – 7 0 0 0 0 1. Opposite Parties.



Judgment



Date: 26.08.2009.



This complaint has been filed Under Section 12 of Consumer Protection Act, 1986 by one Nargesh Begam claiming the sum assured of Rs.1,00,000.00 (rupees one lac) with interest at the rate of 10 percent per annum till the final payment, compensation of Rs.20,000.00 (rupees twenty thousand) litigation cost of Rs.2,000.00 (rupees two thousand) along with decree cost and any other relieves against the Opposite Parties one The National Insurance Company Limited, another The Golden Multi Services Club Limited.



The case of the Complainant, in a nutshell, is that one Md. Nowsad alias Nawsad Alam, Late husband of the Complainant died of an automobile accident occurred on NH31 at Kanki Bus Stand on 05.04.2007. The deceased was a taker of an Insurance Policy under the scheme The Group Personal Accident Policy of National Insurance Policy Limited. The nodal agent of the Insurance Company was Opposite Party No. 2 The Golden Multi Services Club Limited. The money insured under the said policy was Rs.1,00,000.00 (rupees one lac) only. On the date of death the validity of the Insurance Policy was subsisting. The Complainant having been the nominee under the said policy put forward her claim before Opposite Party No. 1 and 2 within 30 days from the date of accident. But no payment was made by the Opposite Party /Insurer, so the Complainant has filed this complaint praying for relieves already mentioned above.



Opposite Party No. 2 has contested the present complaint by filing one written version supporting the case of the Complainant in Toto. What it has asserted in addition is that they had submitted all the documents giving to them by the Complainant to the Opposite Party /Insurer requesting for early settlement of the claim, which was dated on 04.05.2007. It has asserted further that they have taken the action promptly on receipt of all papers from the Complainant and they are not liable for the payment of the insured sum.



After the case posted for ex-parte hearing and subsequently on completion of the said hearing Opposite Party /Insurer filed one petition along with its written version on 21.08.2009 praying for vacating the order passed for delivery of judgment to be announced on 26.08.2009 on the ground stated in the said petition. By another petition it has also submitted before the Forum to accept the written version. Both the petitions along with the written version was placed and moved today on behalf of the Opposite Party /Insurer. No objection raised on behalf of the Complainant so taking any view the principle of natural justice and equity this Forum does allow the prayer and accept the written version of the Opposite Party /Insurer. The Ld. Lawyer of the Opposite Party is also heard today regarding his submission on his case.



Now, from the written version filed by the Opposite Party /Insurer, we do find that it does oppose to the claim of the Complainant on certain technical points, namely, the Complainant has not filed the valid and cogent documents, has failed also to comply with the provisions of the Insurance Policy. Only on these two grounds the Opposite Party /Insurer wants the complaint be dismissed.





Decisions with reasons:



The Complainant has filed Xerox copy of certain documents, namely



i) Insurance Policy (Exhibit - 1).

ii) GMSC Ltd. Insurance Policy (Exhibit - 2).

iii) Letter issued by GMSC Ltd. (Exhibit - 3).

iv) Letter issued by the Complainant (Exhibit - 4).

v) FIR (Exhibit - 5).

vi) Post Mortem Report (Exhibit - 6).



But Opposite Party /Insurance Company does not filed document. Admittedly, the deceased Nowsad was a victim of an automobile accident. The incident of accident was reported to the Police Station, Chakulia, Uttar Dinajpur; the Exhibit – 5 is proof of it. The Post Mortem Report of the deceased also supports the fact that he was the victim of road traffic accident and the injuries, he suffered were, according to the post mortem doctor, were the immediate cause of his death. So, we can not caste doubt on the version of the Complainant, who says that her husband was a victim of road traffic accident.



There is no denial further to the either fact that the deceased was a holder of an Accident Insurance Policy on the date of his death /Accident. Even the policy certificate itself is a strong piece of evidence, which goes in favour of the Complainant. From the documents she have filed that the Complainant has filed one claim application before the Opposite Party No.1 along with papers further the matter has been also negotiated by Golden Multi Services Club Limited with the Opposite Party /Insurer. So, the Complainant have taken all the steps to get her claim discharge, but Opposite Party /Insurer is silent about the fact that it has rejected or repudiated the claim of the Complainant in writing.


The documents we have referred above and marked exhibit were the documents, which were sub mitted in the office of the Opposite Party /Insurer. But what else document is necessary we could not either know from the written version or the argument of Ld. Lawyer appearing for the Opposite Party /Insurance Company.



So, in the opinion of this Forum the Complainant’s case is just and fair and as such she is entitled to get an award of the sum insured by her late husband.



Fees paid are correct.



Hence, ordered,



That the complaint is allowed on contest Opposite Party /Insurance Company and dismissed against the Opposite Party, Golden Multi Services Club Limited.



The Complainant do get an award of Rs.1,00,0000.00 (rupees one lac) only against Opposite Party, National Insurance Company Limited, which is directed to pay the amount so awarded within one month from the date of this order, failing which the Complainant is at liberty to claim interest at the rate of 6.5 (six and half) percent against the Opposite Party /Insurer till full realization.

Anika Khatun @ Onkar Khatun,

Wife of Late Najrul Islam,

Anantapur, Vitihar,

P.S. - Itahar, District - Uttar Dinajpur. Complainant.



versus



1. The Divisional Manager,

National Insurance Company Limited,

Division - III, National Insurance Building,

8, India Exchange Place, Kolkata - 700 001.



2. The Branch Manager,

National Insurance Company Limited,

Raiganj Branch, Mohanbati,

P.O.+P.S.: Raiganj, Dist.- Uttar Dinajpur.



3. The Manager,

Golden Trust Financial Services,

Raiganj Branch,

P.O.+P.S.: Raiganj, Dist.- Uttar Dinajpur. Opposite Parties.






The present complaint is filed Under Section 12 of Consumer Protection Act, 1986, for an order for award of Rs.5,00,000.00 against the O.P./ Insurer. The Complainant is the wife of deceased Najrul Islam, who was a victim of an automobile accident, occurred on 04.04.2005, was a holder of a Personal Accident Insurance Policy under the O.P. covering the period from 15.06.2002 to 14.06.2017. The Complainant, who take claim of disbursement of the assured sum by the Insurance Company. She submitted required papers to the O.P./ Insurer. But her claim was neither discharged nor repudiated by the O.P./ Insurer.



O.P./ Golden Trust Financial Services, hereinafter called as Trust has contested the present complaint by filing one written version. It has been admitted that the Trust was a facilitator of the scheme known and styled as Janata Personal Accident Insurance and the deceased Najrul took the policy under the said scheme through Trust. The O.P./Trust has no responsibility to discharge the claim and only insurance company will handle the claim matter.



O.P./ National Insurance Company has also contested the complaint by filing one written version. Its only case is that claim application was filed before it after the expiry of a statutory period for exercising such claim. There is also conclusion about the name of the nominee of the deceased. Two different names are mentioned in different documents. According to the statement of the insurer, there is difficulty to identify proper nominee. Finally, it has shifted the burden of proving the case upon the shoulder of the Complainant with proper documents.



Decisions with reasons:



Complainant filed six documents to prove her case. The documents, she has filed are all Xerox copies. Those are 1) Money receipts dated 22.05.2007; 2) Policy standing in the name of Najrul Islam; 3) Death Certificate of the deceased; 4) Copy of FIR; 5) (Series) Letters dated 22.08.2007, 15.03.2007, 31.05.2007; 6) (Series) Letters issued by the Complainant dated 14.09.2005, 04.05.2005.



O.P./ Insurer did not filed any document. Now from the documents referred above, we do find that deceased Najrul took a insurance policy from the O.P./ Insurer, of which assured sum was Rs.5,00,00.00 and this Complainant was the nominee. So, there is no dispute that the deceased Najrul took a policy from the O.P./ Insurer. It is not disputed that the deceased died of an automobile accident and the certificate of death of the deceased further fortified the case of the complainant. The O.P./ Insurer asked for the relevant documents form the Complainant to have his policy discharged. Exhibit-6 is a document, which clearly shows that the Complainant has submitted all the documents with the office of the Insurer. The documents was received by the office of the O.P./ Insurer with endorsement. There is no any explanation coming from the side of the Opposite Party, as to why the claim has not yet been discharged.



In the opinion of the Forum the Complainant has been able to prove her case and as such she is entitled to get insured sum from the O.P./ Insurer.



Fees paid are correct.



Hence, it is ordered,



That the complaint is allowed on contest without cost against the O.P./ National Insurance Company Limited and dismissed without cost against O.P., Golden Trust Financial Services.



The Complainant do get an award of Rs.5,00,000.00 (rupees five lacs) only from the O.P./ National Insurance Company Limited. The O.P./ Insurer must pay the awarded sum within one month from the date of this order, failing which Complainant will be at liberty to claim interest upon the entire awarded sum at the rate of 6.5 (six and half) percent till realization.

Mast Ram son of Sh. Nikka Ram resident of village Bah, Post Offfice Gagal, Tehsil Sadar, District Mandi, H.P.




…Complainant



V/S



1. National Insurance Company Ltd Moti Bazar, Mandi Town, H.P. through its Branch Manager.

2. Branch Manager, Himachal Gramin Bank Gagal District Mandi, H.P.



…..Opposite parties






ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties .The case of the complainant is that he had obtained loan of Rs.15,000/- from the opposite party No.2 and purchased a cow which was got insured with the opposite party No.1 who issued insurance policy No.9400000165 for the period from 26-5-2006 to 25-5-2007. The complainant stated that the premium amount of Rs.600/- was paid by the opposite party No.2 to the opposite party No.1 which was credited in his loan account . The complainant alleged that during the currency of the insurance policy said cow died on 13-11-2006 due to some disease and the opposite parties were duly informed in this respect.


The complainant got the post mortem of the dead cow conducted through Veterinary Surgeon ,Veterinary Hospital Gagal and thereafter all the relevent papers were submitted with the opposite party No.2 for onward submission of the claim case to the opposite party No.1. The opposite party No.1 had prepared the cattle claim and was duly processed and investigated but did not inform him about the fate of the claim and the opposite party No.2 informed him vide its letter dated 28-8-2007 that the claim has been closed as No Claim by the opposite party No.1 due to difference in the ear tag. The complainant averred that the opposite party No.1 before closing the claim as No claim had not offered any opportunity to lead evidence as according to him the tag No. NIC DHM-5696was in the ear of the dead cow and this fact has been confirmed by the Veterinary Surgeon while performing post mortem examination.


The complainant further alleged that in the letter issued by the opposite party No.2 to him there is no mention of difference in the ear tag and repudiation of the claim is wholly wrong, illegal , unwarranted and not only amounts to deficiency but also under unfair trade practice .With these allegations , the complainant had sought a direction to the opposite party to pay Rs.15,000/- the sum assured on account of death of the cow and had also claimed a sum of Rs.10,000/- as compensation for causing undue harassment .

2. The opposite party No.1 resisted the complaint by raising preliminary objections that there is no deficiency in service as the claim has been repudiated on the basis of well founded reasons i.e “No tag No claim” and as such the complaint is not maintainable. On merits , the opposite party No.1 has not denied the insurance of the cow by the complainant and investigation of the matter by Sh.Vishal Kumar Guatam Surveyor on 13-11-2006.


The opposite party No.1 pleaded that the cow under insurance was allotted tag No.3179 whereas the complainant has produced the tag No.5696 and this shows that the insured cow is still alive . The opposite party No.1 further pleaded that the cow tagged with tag No. NIC/3179 has died and insured cow tagged with tag number NIC/DIM/5696 has not expired . The opposite party No.1 has prayed for dismissal of the complaint qua it. The opposite party No.2 has failed to file reply despite affording so many opportunities and his right to file reply was closed by the order of the court on 7-3-2009.

3. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.

4. We have heard the ld. counsel for the parties and have carefully gone through the record of the case . At the very out set, be it stated that the opposite party No.1 has not denied the insurance of the cow of the complainant in the sum of Rs.15,000/-. As per the insurance policy, against the column identification , tag No.5696 was allotted to the cow. It has also not been denied that the intimation with regard to death of the cow was received by it form opposite party No.2. The opposite party No.1 has also not denied that the surveyor was deputed to get the matter investigated. The claim of the complainant has been repudiated by the opposite party No.1 addressed to the opposite party No.2 who has advanced loan to the complainant on the sole ground that as per the investigation and the insured statement the dead cow was bearing tag No. NIC/3179 and the cow insured was bearing tag No. NIC 5696 and hence the claim was closed as No claim.


The onus was upon the opposite party No.1 to prove and establish that the cow bearing tag No. NIC/3179 had died and the insurer is not liable to indemnify the complainant as the cow insured with tag No. NIC-5696 is still alive . The opposite party No.1 has pressed into service the letter dated 13-11-2006 sent by the father of the complainant mentioning the tag No.3179 of the dead cow . The perusal of the letter shows that the same is thumb marked by the father of the complainant which shows that he is an illiterate person. Moreover, the letter is neither written nor signed by the complainant, therefore ,no benefit can be derived by the opposite party No.1 from the aforesaid letter .The opposite party No.1 had also relied upon the report of Er. Vishal Kumar Gautam ,Surveyor and Loss Assessor which is dated 13-11-2006. The perusal of the same shows that against column Insured’s statement it has been written as under:-

“ Insured’s Statement After getting relevant information met with the insured’s father and he deposed me that his insured jersey light brown colour age about five and half died on dated 12-11-2006 at 6 AM. As stated by the insured that said insured cow were suffering from fever for last two days and was under treatment from Veterinary Hospital Gagal and could not be survived and died on dated 12-11-2006. The insured cow was tagged with ear tag no . National Insurance company Ltd /3179 to left year . The ear tag was physically checked in the left ear and found that it was rigidly fixed few photographs were arranged . As stated by the insured that his son do private job in Largi project hence insured father given me the statement . Written statement is enclosed herewith.”







The careful scrutiny of the report reveals that the investigator had recorded the statement of the father of the complainant but investigator had failed to record the statement of the insured himself . In our opinion, the investigator had no occasion to record the statement of the father of the complainant who was illiterate and had no knowledge regarding the matter in dispute. No efforts has been made by the investigator to record the statement of the insured . Moreover in the report it has been mentioned that the surveyor had also obtained few photographs of the animal to show that the ear tag No.3179 was affixed in the left ear of the cow . However, the opposite party No.1 had failed to produce the aforesaid photographs taken by the surveyor as mentioned in the report. Hence, an adverse inference has to be drawn against the opposite party No.1 for not producing the material evidence.


Moreover no affidavit of the investigator Sh.Vishal Kumar Gautam has been filed by the opposite party No.1 in order to substantiate its case. On the other hand, the complainant has placed reliance on the Post Mortem report which clearly suggests that the cow bearing tag Number NIC/5696 had died on 13-11-2006. The post mortem report is signed by Veterinary Surgeon ,Veterinary Hospital Gagal. The opposite party No.1 had not disputed the authenticity of the post mortem report . This report has been issued by a Government Official during the discharge of his official duty and there is no reason to disbelieve the same .


The opposite party No.1 had failed to prove and establish that the cow bearing No NIC-3179 had died. In the facts and circumstances of the case, we hold that the insured cow of the complainant bearing tag No NIC DHM/5696 had died and the opposite party No.1 has repudiated the claim of the complainant illegally which certainly amounts to deficiency in service and the complainant is liable to be indemnified by the opposite party No.1 in the sum of Rs.15,000/- being the insured sum of cow . Be it stated that during the pendency of the complaint, the opposite party No.2 had moved an application for directing the opposite party No.1 to deposit the amount of insurance with it , however vide separate order dated 29-8-2009 the said application has been dismissed being not maintainable .

5 In the light of above discussion, the complaint is allowed and the opposite party No.1 is directed to pay Rs.15,000/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party No.1 is also directed to pay to the complainant Rs.2000 /- on account of compensation for harassment suffered by him and also to pay a sum of Rs.1,500/- as costs of litigation.

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

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

Pyare Lal son of Sh. Mast Ram resident of village and Post Office Bhambla , Tehsil Sarkaghat, District Mandi, H.P.


…Complainant

Vs



1 The Manager , National Insurance Company Ltd Moti bazar, Mandi, H.P.

2. The Branch Manager, H.P .State Co-operative Bank Ltd Branch Office at village and Post Office Bhambla , Tehsil Sarkaghat, District Mandi, H.P.

3. Sh. Mohinder Kumar Sharma Surveyor cum loss assessor resident of House No.11/7 Samkheter Bazar, Mandi, H.P.



…..Opposite parties



ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties. The complainant averred that he has constructed residential house –cum shop in the land comprised in khasra No.265 at Bhambla by procuring loan of Rs.2,00,000/- from the opposite party No.2 and the said house was insured with the opposite party No.1 vide policy on 20-2-2007 in the sum of Rs.2,00,000/-. The complainant further averred that he had spent Rs.4,00,000/- for completing the house . It is alleged that on 12-8-2007 due to heavy rain the building of the complainant got damaged due to flood and suffered loss to the tune of Rs..2,85,000/-.


The house in question was also inspected by the revenue officer who prepared the damage report to the tune of Rs.2,85,000/- and Rs.50,000/- was paid as relief. Matter was also reported to the police and rapat was lodged on 14-8-2008. The complainant averred that despite immediate intimation to the opposite party No.2 spot was not inspected by the opposite party No.1 and when he approached the opposite party No.1 to inspect the spot who assured to do the needful orally but nothing has been done and in his absence Manager of the opposite party No.2 alongwith surveyor of opposite party No.1 visited the spot and when the complainant visited the office he was told that he will receive the claim form very soon as entire papers have been supplied to it as given by the complainant .


The complainant averred that the claim has not been settled despite service of legal notice upon the opposite parties . It has further been averred that the opposite party No.1 is demanding documents , but now it is difficult to procure the same . With these averments , the complainant had sought a direction to the opposite party to pay the insurance claim of Rs.2,00,000/- alongwith interest at the rate of 12 % per annum . Apart from this, Rs.50,000/- as compensation and cost of complaint has also been claimed.

2. The opposite party No.1 had filed reply wherein it has been averred that neither the opposite party No.2 nor the complainant has lodged any claim with it. The opposite party No.1 prayed for dismissal of the complaint.

3. The opposite party No.2 filed reply wherein it has been admitted that Rs.2,00,000/- has been advanced to the complainant for construction of loan and the house was insured with the opposite party for Rs.2,00,000/-. The opposite party No.2 has admitted that the complainant has informed it about the incident and after verifying the facts , the matter has been intimated to the opposite party No.1 vide letter No.1813/07 on 16-8-2007. It has further been averred that claim form had been sent to the complainant vide letter No.3515/07 on 29-10-2007 through courier but the complainant had denied the receipt of same and again vide letter No.3905/08 dated 12-2-2008 through registered post the same was sent to the complainant . The opposite party No.2 had prayed for dismissal of the complaint qua it

4. The opposite party No.3 had denied the contents of the complaint in toto.

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

6 We have heard the ld. counsel for the parties and have carefully gone through the entire record. From the perusal of the reply of the opposite party No.1 it has become clear that the claim case of the complainant with regard to damage to his house has not been processed by the opposite party No.1 because as per the opposite party No.1, the complainant has not lodged any claim .


The complainant has not placed on record the copy of claim form vide which claim was submitted with the opposite party No.1 either by himself or through opposite party No.2. The opposite party No.1 had denied the receipt of the claim form alongwith documents from the complainant .Hence in the given facts and circumstances of the case since the claim of the complainant has not been repudiated by the opposite party No.1, the complaint in our opinion is pre-mature .Therefore, it would be in the interest of justice , if at this stage we direct the complainant to hand over all the requisite documents to the opposite party No.1 for settlement of his claim with respect to the damage to his residential house and the opposite party No.1 shall settle the claim in accordance with law.

7 In view of above discussion, the complaint is disposed off with the direction to the complainant to furnish the required documents with the opposite party No.1 through the opposite party No.2 within a period of 30 days from the receipt of the copy of this order and thereafter the opposite party No.1 is directed to settle the claim of the complainant within a period of three months, in accordance with law . However, the complainant is at liberty to file fresh complaint on the same cause of action in case his claim is either repudiated by the opposite party No.1 or not settled within the stipulated period, or in case the complaint is not satisfied with the claim amount settled by the opposite party No.1.

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

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

Shri Gopal Chand Sharma S/O Shri Devi Roop Sharma,

R/O Balak Ram Building, Renot Cottage, Lower Chakkar, Shimla, H.P.



… Complainant.

Versus



1. M/S Goyal Motor Pvt. Ltd.

Authorized Maruti dealers,

Tara Devi, Shimla.



2. National Insurance Company Ltd.,

C/O Extention Counter, Goyal Motors Pvt. Ltd.,

Tara Devi, Shimla.





…Opposite Parties





O R D E R:



Sureshwar Thakur (District Judge) President:- This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12, of the Consumer Protection Act, 1986. The complainant avers that OP No.1 is an authorized Maruti Dealer, from whom he purchased Maruti Van (Omni). He alleges that the OP No.1 while selling him the aforesaid vehicle had defrauded him by supplying the model of 2004 in the year 2005, which action on the part of the OP No.1, as per the complainant, tantamounts to deficiency in service, as also, unfair trade practice. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP, in its written version to the complaint, has contended that they had purchased the vehicle of 2005 model & the same was purchased on 08.03.2005 from Maruti Udyog Limited vide bill No.D1896774, which was sold to the complainant on 15.03.2005, hence, it is contended that the question of selling 2004 model in the year 2005, does not at all arise. Hence, it is denied that there was any deficiency in service on their part or that they have received the excess amount from the complainant.

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

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

5. The complainant contends that the OP No.1 did not supply to him a Maruti Van of the year 2005, rather they supplied to him Maruti Van of 2004 model, hence, despite his having paid the entire amount, then payable to the OP No.1, the OP No.1, has, hence in its supplying model, to him a, 2004 model of Maruti Omni, tantamounts, to deficiency in service.

6. The OP No.1 resists the allegations of the complainant and in its reply furnished to the complaint, has, contended, that, the complainant purchased Maruti Van Omni, on, 08.03.2005 under bill No.D1896774 and that the engine number and chassis number of the vehicle have been detailed in it. While relying upon the said bill, hence, they contend that the Maruti Omni Van was of 2005 and not 2004. The complainant has not been able to rebut the said fact nor has been able to bring forth any satisfactory evidence to show that the chassis number and engine number reflected in the bill did not relate to the vehicles manufactured in the year 2005 and that the numbers were relatable to those models manufactured in the year 2004. For lack of the above satisfactory evidence, having been placed on record, we are inclined to concur with the contention duly supported by the bill of the OP No.1 that, as, a matter of fact Maruti Omni Van of 2005 not 2004 was supplied to the complainant. Hence the complaint being without any merit, is, liable to be dismissed.

7. In the light of the above discussion, we find no force in this complaint and it being without any merit is dismissed, leaving the parties to bear their own cost. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Shri Mukund Lal Verma S/O Shri Chet Ram,

Resident of Village Ragyan, P.O. Bhanot,

Tehsil and District Shima, H.P.



… Complainant.

Versus





The Senior Divisional Manager,

National Insurance Company Ltd.,

Ish Niketan Newland Estate, Shimla, H.P.



…Opposite Party







O R D E R:

Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986, against the OP-National Insurance Company Ltd. “in short OP-Company”. The complainant avers that he is owner of truck bearing registration No.HP-63-0368, which was insured with the OP-Company, for a period of one year commencing from 20.07.2005 to 19.07.2006. It is averred that the aforesaid vehicle met with an accident on, 08.12.2005, and suffered extensive loss. The complainant, further, proceeded to aver, that, the factum of accident was brought to the notice of the OP-Company, as also, to the Police upon which Rapat bearing No.7, dated 09.12.2005, was lodged with Police Station, Kandaghat. Thereafter, the insurance claim was preferred with the OP-Company, but the OP-Company instead of settling it, dilly-dallied, the same on one pretext or the other. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, and lack of cause of action. On merits, it is contended that Shri Rajesh Sharma, Surveyor & Loss Assessor was deputed to inspect the afflicted vehicle, who as per survey report, assessed the loss to the tune of Rs.1,03,617.65, subject to fulfillment of terms and conditions of the insurance policy. Since, the driver of the afflicted vehicle was not having a valid and effective driving licence, at the time of the accident, hence, the OP-Company was well within its right to repudiate the claim of the complainant, on account of breach of terms and conditions of the insurance policy. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

5. The vehicle of the complainant met with an accident on 08.12.2005 and the complainant had reported the incident to the concerned Police Station vide Rapat No.7 appended with the complaint, as, Annexure-B. However, his, claim lodged with the OP-Company, came to be repudiated by them on the ground, that, since the driver did not possess a valid and effective driving licence, inasmuch, as, with the vehicle having come to be registered as a “goods carriage vehicle” and with the driver possessing a driving licence to drive, a, light transport vehicle, as such, the licence as possessed by the driver named Ajay Santosh, did not permit him to drive the vehicle of the category which he was driving, at the relevant time, as his driving licence required a specific endorsement allowing him to drive a transport vehicle, which endorsement did not exist in the driving licence.

6. The said contention, is, anvilled upon the report of the Loss Assessor which bears Annexure R-2. Even if assuming that the vehicle owned by the complainant was registered, as, a goods carriage vehicle, it being a Swaraj Mazda, and even its driver was authorized to drive a light commercial vehicle, and which authorization which the driver had to drive a light transport vehicle, was in vogue at the time of the accident, yet, the mere fact that the driving licence of the driver did not contain an endorsement of his being authorized to drive a transport vehicle, in, our considered view, would not oust the claim of the complainant, the reason being:- (a) With the Motor Vehicles Act defining a light motor vehicle, in which category the vehicle owned by the complainant would fall, as, the unladen weight thereof, as revealed by a reading of Annexure R-2, is, 2800 kilograms, concomitantly with the driver who was driving the vehicle at the relevant time and whose driving licence, is, on record being authorized to drive, a, light transport vehicle, would even without their being, a, necessity of an endorsement in his driving licence of his being authorized to drive a transport vehicle, would have authorization to drive a light motor vehicle, in, which category the vehicle owned by the complainant fell, in, the light of, as, stated above, its, gross unladen weight, not, exceeding 2800 kilograms.


The necessity of an endorsement in the driving licence of the driver being authorized to drive a vehicle, would, arise whereby the unladen weight exceeds the limits as envisaged by the provisions of said Motor Vehicle as defined in the Motor Vehicle Act. Obviously, the OP-Company in repudiating the claim of the complainant merely on the strength of non-existence of an endorsement in the driving licence of its driver to drive a transport vehicle, which for reasons aforesaid was not necessary and which endorsement was necessarily got, to be, incorporated in the driving licence of the driver, where, he, proceeds to drive, a, heavy goods vehicle, which the vehicle owned by the complainant was not. As a sequitor, the contention is rejected.

7. The report of the surveyor as contained in Annexure R-2, while assessing the loss of the complainant, has, discarded the estimates and deductions have been made by him from the estimates without affording any reason. Therefore, in, the Loss Assessor, while preparing Annexure R-2 while his proceeding to, deduct the estimates from the total loss and that, too, without affording reasons while doing so, hence has done so without application of mind. Consequently, for, non-application of mind on the part of the Loss Assessor, in, reducing the cost of the expenditure while assessing the loss to be paid to the complainant, has hence, come to visit his report with the vice of non-application of mind. As, a, further consequence, the, entire amount of estimates, as well, as, the amount as reflected in the bills, has, placed on record, are required to be indemnified by the OP-Company to the complainant.

8. In the light of the above discussion, we allow the complaint and direct the OP-Company, to indemnify the complainant to the extent of Rs.1,39,332/- along with interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 05.06.2006, till making entire payment. The litigation cost is quantified at Rs.2500/- 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 undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Gurchain Singh, 54 years s/o Sh. Hukum Singh r/o VPO Bhanglan Distt. Sahid Bhagat Singh Nagar Nagar. ….Complainant.



Versus

1. District Co-ordinator, Med Save Health Care (TPA) Ltd. 188, Green Park, Opposite Bus Stand, Jalandhar.

2. The Nodel Officer, The Bhai Ghenhya Trust, A Nodel Agency to 123, Second Floor, Sector 34-A, Chandigarh

3. The National Insurance Company Limited, Chandigarh Road, Nawanshahr (through its Manager). …. Respondents




Gurchain Singh (hereinafter called as complainant), has filed this complaint against the District Co-ordinator, Med Save Health Care (TPA) Ltd. 188, Green Park, Opposite Bus Stand, Jalandhar, The Nodel Officer, The Bhai Ghenhya Trust, A Nodel Agency to Med Save Health Care (TPA) Ltd. Punjab State SCO 121-122-123, Second Floor, Sector 34-A, Chandigarh and The National Insurance Company Limited, Chandigarh Road, Nawanshahr (hereinafter called as Ops no.1,2 and 3 respectively) for issuance of a direction to the Ops to pay his medical expenditure claim of Rs.6,00,000/- including litigation expenses.

2. In brief the case of the complainant is that Bhai Ghanhya Trust is implementing a health care centrally sponsored scheme known as “Bhai Ghanhya Sehat Sewa Scheme” for providing health care facilities to its members in the State of Punjab. The complainant was also a member of the scheme and had deposited Rs.1,410/- as membership fee. The trust had issued policy to the complainant for medical claim reimbursement. Under the scheme its members were eligible for hospitalization in private hospital on the penal of the trust. National Insurance Company Ltd. (Op No.3) was alleged to have issued policy No.400104/46/08/85/00000096 which was valid from 01/10/2008 to 30/09/2008. On 19/11/2008 the complainant was alleged to have suffered a severe attack of “Acute Myocardial Infarction”. He was admitted to “Rai General Hospital and Heart Centre”, Mukandpur Road, Banga, Distt. Nawanshahr from where he was shifted to “Fortis Hospital, Mohali”. An expenditure of Rs.5,51,445/- was claimed to have been incurred by the complainant on his treatment. The complainant is stated to have approached the Ops personally as well as through registered letters to claim reimbursement of the expenditure but of no consequence. Hence this complaint.

3. Ops No. 1 & 2 did not appear despite service as such were ordered to be proceeded against exparte.

4. Op No. 3 in its written version challenged the maintainability of the complaint on the ground that this Forum has no territorial Jurisdiction to entertain and try this complaint and that no policy was ever issued by this Op. Further that the alleged hospital was not on the penal of hospital covered under the alleged scheme. On merits, it was further contended that the complainant was not the member of such scheme. It is further contended that the complainant who is employed as conductor in Punjab Roadways had also applied for reimbursement for the medical treatment from Punjab Government and as such is not entitled to double benefits for the same hospitalization. It was also contended that no claim was ever submitted to Op No.3 and as such the complaint was premature. It was denied that there was any deficiency on the part of this Op. A prayer for dismissal of the complaint was accordingly made.

5. The complainant tendered affidavit his evidence in the shape of affidavit and other documents.

6. Op No. 3 has also tendered of its Senior Division Manager and closed his evidence.

7. We have considered the written arguments counsel for the Op No.3 as well as oral submissions advanced by the counsel for the parties and carefully scrutinized the evidence on record.

8. To substantiate the claim the complainant has placed on record Ex. C-14 a Guide Book and list of network of hospitals issued by “Bhai Ghanhya Sehat Sewa Scheme, Punjab”. Introductory clause in the Guide Book indicates that “Bhai Ghanhya Sehat Sewa Scheme” had been introduced by the Punjab Government to provide better health service to the weaker sections of the society. This claim was applicable to the members of the Punjab Co-operative societies functioning in Punjab and Chandigarh registered under the Punjab Co-operative Societies Act 1961. National Insurance Company Limited was shown to have insured this scheme and “Med Save Health Care Limited” was appointed as 3rd party administrator by the National Insurance Company. Members of the co-operative society as well as its members seeking treatment through “Bhai Ghanhya Sehat Sewa Scheme” were to be granted the facilities of treatment through the hospitals on its penal. The complainant has also placed on record Ex. C-2 photo stat copy of the card issued by “Bhai Ghanhya Trust” under “Bhai Ghanhya Sehat Sewa Scheme” bearing the photograph as well as the particulars of the complainant alongwith policy number, its validity duration, card number and society code. The name of National Insurance Company Limited as well as the ‘emblem’ of “Med Save” is also printed on it. Since Op No.1 and 2 have not preferred to context this complaint despite their service, the evidence on record i.e. Guide Book as well as the card produced by the complainant go un-rebutted and we are satisfied that the complainant was a member of “Bhai Ghanhya Sehat Sewa Scheme” introduced by the Punjab Government for providing better medical facilities to the members of the scheme.

9. The complainant has also placed on record Ex.C-12 format for enrollment of the “Kariam Co-operative Agricultural Society Limited” District Nawanshahr, relating to the names of the members as well as the amount of membership fee. There is residential address etc. Name of Gurchain Singh, complainant figure and Sr. No.22 of this list. An amount of Rs.42,381/- was shown to have been remitted by the society to ‘Bhai Ghanhya Trust’ vide draft dated 26/08/2008 copy of which is Ex. C-13. Thus it stands established that the complainant was a member of “Bhai Ghanhya Sehat Sewa Scheme” promoted by ‘Bhai Ghanhya Trust’. Therefore, he was entitled to the medical facilities offer by 'Bhai Ghanhya Trust' formed by the Government of Punjab to the members of "Bhai Ghanhya Sehat Sewa Scheme" which was claimed to have been insured by National Insurance Company Ltd.

10. The complainant has also tendered Ex. C-3 certificate dated 28/11/2008 issued by Rai General Hospital and Heard Centre, Mukandpur Road, Banga to the fact that Gurchain Singh s/o Hukum Singh r/o village Bhangla, District Nawanshahr remained admitted in the hospital from 19/11/2008 to 20/11/2008 with ‘Acute Myocardial Infarction”. Ex C-4 is the copy of the discharge summary issued by the department of cardiology “Fortis Hospital”, Mohali which indicates the Indoor treatment of the complainant from 20/11/2008 to 26/11/2008. Ex. C-5 is the copy of the ECG report of the complainant where as Ex. C-6 is copy of the bill with details of the expenditure incurred by the complainant on his treatment in “Forits Hospital”. The total amount of the bill is Rs.5,51,545/-. The evidence having gone un-rebutted there is no ground to discard the same.

11. The perusal of the Guide Book Ex. C-14 reveals that the reimbursement to the members of the "Bhai Ghanhya Sehat Sewa Scheme" was limited to Rs.2 Lakh PA only. Therefore, the complainant can not be held entitled to the claim in excess of Rs.2 lac irrespective of the fact that the expenditure incurred by him was much more.

12. No doubt, the complainant has claimed that National Insurance Company Op No.3 was the insurer of the scheme yet Op No.3 in his written version as well as in the affidavit Ex R-1 filed by its Senior Division Manager has categorically denied the issuance of any Insurance Policy as alleged. In such circumstances, the printing of the name of National Insurance Company on the card copy of which is Ex. C-2 can not be held to be sufficient to burden the Op No.3 with liability. The complainant has placed on record Ex. C-7 a copy registered notice allegedly served by him upon the District Co-ordinator “Med Save Health Care Limited” (TPA) as well as Nodal Officer of 'Bhai Ghanhya Trust' a Nodel Agency to Med Save health care limited. Ex. C-8 and Ex. C-9 are the copies of the postal receipt. Since Ops No. 1 and 2 have failed to satisfied the claim of the complainant, it amounts to deficiency in service on the part of these ops towards the complainant. There being no direct privity of contract between the complainant and Op No.3, it will be unjust to hold Op No.3 liable for any deficiency on the part of the Ops No.1 & 2.

13. As a consequence of the foregoing reasons, we are constrained to allow this complaint with a direction to the Ops No.1 & 2 to pay medical claim of Rs.2 lac to the complainant under "Bhai Ghanhya Sehat Sewa Scheme" with interest @9% PA from the date of filing of this complaint i.e. 19/01/2009. They shall also pay a sum of Rs.5,000/- to the complainant as litigation expenses.

14. The complaint against Op No. 3 is however dismissed. The Ops No.1 and 2 shall at liberty to claim the amount from Op No. 3 if there was any contract between these Ops as well as Op No.3 but it shall not be an excuse to delay the payment to the complainant.

15. The compliance shall be done within one month from the receipt of copy of this order.

16. The copies of this order be sent to the parties as per rules.

17. File be consigned to the record room.

Mohinder Pal Singh Partner M/s Prince Distributors, Caliber Plaza, Shop No. D-114, A.C. market, near Bhadaur House, Ludhiana.

(Complainant)

Vs.



1. National Insurance Company Limited, Mehtab House near Ujjagar Service Station, Dhulkot Road, Ahmedgarh Branch Distt. Sangrur through its Branch Manager.



2. National Insurance Company Limited, Divisional office No.1, Link Road, near Atam Park, Ludhiana.

(Opposite parties)






O R D E R



1. Complainant has approached this Fora in this complaint under section 12 of the Consumer Protection Act, 1986, to direct the OP-Insurance Company to pay damage of Rs. 6,89,496/- suffered in an accident by his Tata Safari vehicle, insured from 10.6.2004 to 9.6.2005 for this amount with the opposite parties.

2. It is pleaded by the complainant that Tata Safari vehicle bearing engine number 702727, Chassis no.00491 was purchased by him for Rs. 7,25,785/- on 10.6.2004 from Dada Motors, Ludhiana. After purchase got it insured on 10.6.2004 with the opposite party for Rs. 6,89,496/- vide cover note no. 408672 and paid the premium of Rs. 26,514/-. Vehicle was hypothecated with ICICI Bank Limited, Ludhiana and it bear temporary registration no. PB-10TC-2292.


On 13.6.2004, the vehicle met with an accident In Distt. Kota, Rajasthan and was totally damaged. Sh. Devinder Singh holding effective and valid driving license was driving the vehicle at the time of accident. Accident was reported to opposite party and lodged claim with them. But opposite party vide letter dated 11.8.2005 wrongfully and illegally repudiated the claim. This repudiation is assailed to be wrong, null, void and illegal and sought total loss or insurance amount of the vehicle from the opposite party, in addition to compensation of Rs.2,00,000/- for deficiency in service and Rs.11,000/- as litigation costs.

3. OP-Insurance Company in reply pleaded that the complaint is not maintainable; is also barred by limitation. Averred that contract of insurance is a contract of utmost good faith. Vehicle was insured on the assurance of M/s Prince Distributors that they were owner of the vehicle whereas invoice of the vehicle was issued on 18.6.2004. The vehicle was never purchased by the complainant on 10.6.2004. There is no privity of contract between the complainant and opposite party and the complainant was not owner of the vehicle on the date of alleged accident. Complaint is also bad for non joinder of necessary parties.


Insuring the vehicle on 10.6.2004 vide cover note no.408672 by M/s Dada Motors, Ludhiana is conceded. But claimed that insurance premium was paid through cheque by M/s Dada Motors, Ludhiana. Delivery of the vehicle was given by M/s Dada Motors on gate pass delivery challan and no temporary registration number was issued to the said vehicle before it was delivered on 10.6.2004. The vehicle on the date of alleged accident on 13.6.2004 was being plied with trade certificate PB-10TC-2292.


The insured had no official sale letter and invoice in his name, which was issued on 18.6.2004. So, the complainant was not owner at the time of alleged accident. Trade certificate was only meant for test drive purpose whereas alleged accident had taken place at Kota, Rajasthan. Therefore, Insurance Company rightfully and legally repudiated the claim after applying its mind. Also denied that the vehicle was totally damaged. There is no deficiency in service and the complainant is not entitled for any relief.

4. Both the parties adduced their respective evidence by way of affidavits and documents.

5. We have heard the arguments addressed by the ld. counsel for the parties and have gone through the file, scanned the documents and other material on record.

6. As per case, complainant purchased the vehicle in question on 10.6.2004 and got the same insured vide cover note Ex.C.3 from the opposite party. It is not in dispute that this cover note Ex.C.3 was issued on 10.6.2004 at 8.20 P.M. by M/s Dada Motors acting on behalf of National Insurance Company. Insurance premium as per allegations of the complainant by way of cheque was paid to Dada Motors, who in lieu issued cheque of the insurance premium from their account to National Insurance Company. As a result cover note no. 408672 insuring the vehicle bearing engine no. 702727, chassis no.00492 was issued in favour of M/s Prince Distributors, of which complainant claims himself to be a partner.


In the cover note temporary registration number of the vehicle was not mentioned and only engine number and chassis number of the vehicle were recorded. However, complainant in para no.2 of the complaint has mentioned that the vehicle was purchased on 10.6.2004 and insured w.e.f. same date and was assigned temporary registration no. PB-10TC-2292. But we may say that PB-10TC-2292 was not temporary registration number of the vehicle. Rather it was a trade certificate on form No.17 under rule 35 of the Motor Vehicle Rules. Probably it was for such reason that temporary registration number of the vehicle was not mentioned in the insurance cover note Ex.C.3. Because, it on 10.6.2004 was never temporary registered, nor assigned any number. So, plea of the complainant that the vehicle had PB-10TC-2292 temporary registration number stand falsified.

7. Rule 35 of the Central Motor Vehicle Rules 1989 reflects that such certificate is only issued to a dealer. This rule reads as under:

GRANT OR RENEWAL OF TRADE CERTIFICATE: “(1) On receipt of an application for the grant or renewal of a trade certificate in respect of a vehicle, the registering authority may, if satisfied that the applicant is bona fide dealer and requires the certificates specified in the application, issue to the applicant one or certificates as the case may be, in Form 17 and shall assign in respect of each certificate a trade registration mark consisting of the registration mark referred to in the notification made under sub-section (6) of Sec.41 and followed by two letters and a number containing not more than three digits for each vehicle.”

So, it is evident that trade certificate is granted to dealer of the vehicle. It can not be granted to a purchaser of the vehicle.

8. Rule 40 of the motor Vehicle Rules 1989, create certain restrictions on use of trade certificate or trade registration mark and number. Vide that rule such certificate can only be used by a person to whom it is issued and such person shall not allow or offer or cause the certificate or the number assigned in connection therewith to be used by any other person. In the instant case, trade certificate Ex.C.4 was issued to M/s Dada Motors Ltd. Ludhiana. Consequently certificate of the number assigned therein could not have been used by anybody else except dealer of the vehicle i.e. M/s Dada Motors. Complainant could not have used that certificate.

9. Under Rule 41 of the Central Motor Vehicle Rules 1989, holder of the trade certificate is governed by certain limitations for use of the vehicle in public place. He under that rule can use the trade certificate for test of the vehicle; proceeding or return from weigh bridge ; for a reasonable trial or demonstration; for proceeding to or returning from the premises of the dealer, workshop, airport, railway station or from exhibition of motor vehicles or removing the vehicle after it has been taken into possession by the financer.

10. Rule 42 of the Central Motor Vehicle Rules 1989 further prohibits holder of a trade certificate from delivering a motor vehicle to a purchaser without registration, whether temporary or permanent.

11. Now adverting to the case in hand.

12. On 10.6.20-04 the vehicle allegedly purchased by the complainant from M/s dada Motors ltd. was not issued or assigned any temporary registration number. Such temporary registration number of the vehicle was assigned on 18.6.2004 as apparent from copy of the temporary registration certificate Ex.R.17.


Though gate pass/vehicle delivery certificate (Ex.R.8) issued by M/s Dada Motors to Prince Distributors bears date 10.6.2004. But invoice of the vehicle sold by M/s Dada Motors to the complainant (Ex.C.5) contains date of sale as 18.6.2004. There is inconsistence in invoice Ex.C.5 and delivery challan/gate pass Ex.R8. Delivery challan and gate pass is dated 10.6.2004 whereas sale invoice shows sale of the vehicle on 18.6.2004 and insurance cover note qua the vehicle was issued on 10.6.2004.

13. It appears in these circumstances that the record qua delivery challan was got manipulated by the complainant in connivance with M/s Dada Motors and consequently purposely they did make it to help the complainant. Because on 10.6.2004, M/s Dada Motors could not have delivered this vehicle to the complainant, without providing temporary registration number. Complaint tried to make out that number mentioned in the trade certificate Ex.R.15 (Ex.C.4) was temporary registration number. This trade certificate was issued to dealer of the vehicle M/s Dada Motors and under Central Motor Vehicle Rules, they could not have sold the vehicle without temporary registration number.


Temporary registration number to the sold vehicle was issued on 18.6.2004, on which date sale invoice Ex.C5 (R2) was issued. The vehicle on trade certificate could have been maximum taken for test driving etc. as referred above. But from Ludhiana it was taken to Kota in Rajasthan where it met with an accident. No doubt, qua accident in Kota, Rajasthan, complainant gave intimation Ex.C.6 to sister concern of opposite party, lodged claim vide application Ex.C.11, file proof of accident, as a result Company availed services of surveyor Sh. R.S. Ahluwalia who vide report Ex.R.19 dated 18.7.2006 affirmed of the accident and suffering damage by the vehicle.

14. But in our view this report of investigator would not come to rescue of the complainant. Because, complainant on the date of accident was not owner of the vehicle. Neither the vehicle lawfully was taken from show room of the dealer to Kota (Rajasthan). Probably, appears that dealer of the vehicle M/s Dada Motors collided with the complainant and in this manner presented the case for payment under the policy. The policy of the vehicle was obtained by the complainant in league with Dada Motors who acting on behalf of OP-Insurance Company issued cover note dated 10.6.2004 by issuing cheque from their account to the Company. Therefore, faith of insurance was breached.

15. In view of discussions above, we are of the view that OP-Insurance Company rightfully and legally repudiated the claim. Therefore, finding no merit, the complaint is dismissed. Parties to bear their own costs. Copy of the order be supplied to the parties free of costs. File be completed and consigned to record.

Vipan Kumar Jain s/o Sh. Om Parkash Jain, r/o H.No.B-3, 717, Chhatti Galli, Chowk Saidan, Ludhiana (Punjab).

….Complainant.

Versus



National Insurance Company Limited, Branch Office No.5, Gill Road, Ludhiana through its Senior Branch Manager.



….Opposite party.




O R D E R





1- Complainant being owner of scooter bearing registration no.PB-10AJ-4549, valuing Rs.10,800/-, got it insured with opposite party, vide policy no.401311/31/04/6202134 for Rs.10,800/-. The policy was valid from 25.7.2004 to 24.7.2005. During intervening night of 22/23rd July, 2005, locked scooter was parked by the complainant in the street in front of his house, but was stolen. On 23.7.2005, visited P.S. Divn. No.4, to lodge FIR qua theft. Police demanded affidavit. Stamp papers purchased on 22.7.2005 for some other purpose, were used for the affidavit which was given to the police on 23.7.2005. The affidavit was attested by the Notary Public on 23.7.2005. After taking affidavit, police registered FIR No.55/6.8.2005. Immediately, intimation of theft, was also given to the opposite party. Police could not trace the stolen scooter and filed untraced report on 2.4.2006. Thereafter, has been requesting opposite party, to settle his insurance claim. Even their investigator Sh. M.L. Mahla in his report, has recommended payment under the policy, due to theft of the scooter.


But opposite party got the same re-investigated from him, without his notice or consent. After taking statement of the complainant, Sh. M.L. Mahla investigator submitted report dated 21.12.2006 on the basis of which, opposite party repudiated the claim vide letter dated 28.12.2006.This repudiation is assailed to be illegal, null and void, by filing the present complaint under section 12 of the Consumer Protection Act, 1986. Further claimed that had earlier filed complaint at Ambala Fora, which on technical ground of jurisdiction, was dismissed. Hence, sought insurance amount of the scooter alongwith Rs.50,000/- for humiliation and harassment with Rs.11000/- litigation expenses.

2- Opposite party pleaded in reply that complaint is not maintainable, as his earlier complaint was dismissed by the Ambala Fora on 5.8.2008 and that allegations of theft, is disputed. They claimed that there is no negligence or deficiency in service on their part, as claim of the complainant, was registered, entertained and processed and investigator Sh. M.L. Mahla was appointed investigator and after scrutinizing his report and documents, claim was rightly and legally repudiated vide letter dated 28.12.2006. Further claimed that qua theft of scooter on 22/23rd July, 2005 night, FIR was lodged on 6.8.2005, after 15 days. Affidavit filed on 23.7.2005, was prepared on stamp papers got issued on 22.7.2005. So, complainant adopted fraudulent means and devices, to raise the claim. Further pleaded that no 2nd investigator was appointed. Only clarifications were sought from Sh. M.L. Mahla, who after giving clarification, submitted his reported dated 21.12.2006. They have prayed for dismissal of the complaint.

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

4- First question is whether second complaint is maintainable. Complainant on these very allegations, had filed complaint no.74/2007 before the District Consumer Forum, Ambala, which was decided on 5.8.2008, vide order copy of which is Ex.C11. In that case, on ground of jurisdiction and taking into consideration other facts and circumstances, including delay of 15 days in lodging FIR, the complaint was dismissed. It was not simply and solely dismissed on grounds of territorial jurisdiction. Had it been so, the complaint would have been returned to the complainant, for presentation before the proper Forum.

5- Hon’ble Delhi State Commission in K.S. Gopalkrishnan Vs President/General Secy.Vasant Co-operative Group Housing Society & Anr. II (2004) CPJ-270(Delhi State Commission), has held that where complaint is dismissed by the Fora, relegating the complainant to the civil court, against which no appeal filed, the order became final. Therefore, second complaint for same relief, not maintainable.

6- Hon’ble Haryana State Commission in Mahinder Pal Vs New India Assurance Co. & Anr. IV (2005) CPJ-490(Haryana State Commission), has also held that second complaint filed after dismissal of earlier complaint, without permission, is not maintainable.

Therefore, we are of the view that second complaint is not maintainable.

7- No doubt, qua theft of scooter which occurred, as per allegations of the complainant, on intervening night of 22/23rd July, 2005, FIR Ex.C4 was registered on 6.8.2005. There is delay of 15 days in lodging the FIR. In such like scenario, where FIR was lodged after 48 hours, Hon’ble UP State Commission in Shiv Kumar Mehrotra Vs United India Insurance Co. Ltd. II(2001)CPJ-453 (UP State Commission), dismissed the complaint, as there was no explanation for such delay.

8- Further doubt generated is that for lodging FIR, complainant had submitted affidavit Ex.C3, attested by the Notary Public on 23rd July, 2005. But stamp papers for preparing such affidavit, were got issued on 22.7.2005. Explanation of the complainant is that such stamp papers were got purchased for some other purpose and when police insisted for giving affidavit, those stamp papers were utilized by getting it prepared and attested on 23.7.2005.Whether it is true or not, deserves to be investigated and probed thoroughly. Such can not be done in summary inquiry, governing us. Rather detailed inquiry, including recording of evidence, providing chance of cross-examination to the parties, need to be adopted, to arrive at the proper truth.

9- Having regard to all these aspects referred above, we are of the view that this complaint is not maintainable, as it is second complaint. There is also doubt about authenticity of allegations of FIR qua theft, due to delay in lodging FIR and using stamp papers, got issued prior to alleged date of theft. Hence, we dismiss the complaint. Complainant if so wishes, may get the matter settled through civil court. Parties are left to bear own costs. Copy of order be supplied to the parties free of charge and file be consigned to the record room.

Smt.Devusari Rekha W/o late Devusari Poshanna, aged 26 years, Occ: Household, R/o H.No.10-73, Ramnagar Colony, Aloor (V), Mandal Armoor, District Nizamabad.



Complainant

AND



1) The Managing Director, Golden Multi Services Club Limited, S.B.Mansion, 16, R.N.Mukherjee Road, Kolkatta – 700 001 (West Bengal State).



2) The Senior Divisional Manager, National Insurance Company Limited, Division-III, 1, Shakespeare Sarani (6th floor), Kolkatta-700 071.



3) The Branch Office, National Insurance Company, Door No.5-8-799/2, B.Laxmirajam Complex, Jawahar Road, Nizamabad.



Opposite Parties



This Consumer Complaint Case coming on 12-8-2009 for final hearing before us in the presence of Sri D.Shankar Rao, Advocate for the complainant and Sri P.Anand Reddy, Advocate for the Opposite Party No.2 and 3 and Opposite Party No.1 reamined ex-parte, and upon hearing the arguments of both side advocates and the matter having stood for consideration till this day, this Forum made the following :



:: O R D E R ::





1. THIS IS A COMPLAINT FILED U/SEC.12 OF C.P.ACT, 1986 by Sri Devusari Rekha, the complainant alleging that her late husband was taken policy bearing No.100300/42/04/8200012 for sum of Rs.1,00,000/- valid from 23-10-2004 to 22-10-2005. The policy was issued by the Opposite Party No.2 and 3 after recommendation of the Opposite Party No.1. The complainant being wife of late Devusari Poshanna made nominee in the said policy. As per the policy the O.Ps are liable to pay sum assured of Rs.1,00,000/- under the accidental benefit, if the policy holder died accidentally.



The complainant submits that her husband was died accidentally on 19-4-2005 at his village due to electrocution and then after the complainant has claimed policy amount through Opposite Party No.1 immediately after death of her husband. The Opposite Party No.1 sent the claim of complainant to the Opposite Party No.2 and 3 for payment of policy amount and also reminded on 1-7-2005, 1-3-2006 and 17-5-2006 to Opposite Party No.2 and 3 for payment. But the Opposite Party No.2 and 3 failed to pay the amount of policy but intentionally avoid the claim of the complainant. The complainant has facing much troubles with the attitude of the Opposite Parties and she sustained mental agony and physical strain. Hence the Opposite Parties are liable to pay not only policy amount of Rs.1,00,000/- with 12% interest from date of death of her late husband also liable to pay an amount of Rs.10,000/- towards compensation.



2. Counter filed by the Opposite Party No.2 and 3 stating that all the averments made in the complaint were neither specifically admitted nor denied may be deemed to have been denied by this Opposite Party No.3. However, the complainant is put to strict proof of the same. And also denied the deceased died on 19-4-2005 at his village due to electrocution and the death was intimated by claiming policy amount immediately after the death of the deceased is denied. Infact the complainant has intimated the death of the deceased to the Opposite Party No.2 through Opposite Party No.1 with their letter dt.1-7-2005 received by office on 6-7-2005. That there is no cause of action arose on 18-12-2006 as stated by the complainant, since no such representation was made on 18-12-2006, but infact, the said representation was made on 18-4-2006 only i.e., after repudiating the claim, as such there is no cause action arise on 18-12-2006 for filing this complaint.


Hence the petition is liable to be dismissed. And the Opposite Parties 2 and 3 specifically submits that this Hon’ble Forum has no jurisdiction to entertain any petition, since as per new memorandum of understanding entered into between Opposite Party No.1 and 2. In view of the above said facts and circumstances, the Opposite Party No.2 and 3 pray this Hon’ble forum to dismiss the complaint with exemplary costs, in the end of justice and equity.



3. During the enquiry, the Complainant filed his affidavit as evidence and marked Ex.A1 to Ex.A4 documents by his affidavit. The Opposite Parties filed their counter affidavit and marked Ex.B1 to Ex.B3 documents as evidence.



4. Heard arguments of both side advocates.





5. The points for consideration are:



1) Whether there is a delay of death intimation to the Opposite Parties by the complainant ?

2) Whether the complaint is barred by limitation as alleged by the Opposite Parties 2 and 3 ?

3) Whether the Complainant is entitled for the reliefs as prayed for ?

4) To what relief ?



6. POINT No.1 :- There is no dispute about obtaining Janatha Personal accident policy from Opposite Parties 2 and 3. On perusal of Ex.A2 letter addressed by the Opposite Party No.1 to the Opposite Party No.2, in which it is clearly stated that the documents are submitted to the Opposite Party No.1 well within the time limit by the complainant and there is no delay on the part of the claimant in regard to the intimation of claimant of claim papers. As per the arrangements as existing falling which were understanding at initial process is to be done at their (by Opposite Party No.1) end, the entire set of claim papers are being forwarded to the Opposite Parties 2 and 3 “ At one go”. The Opposite Party No.1 therefore at their end, processed the papers keeping in mind the understanding so prevailing over the period and forwarded the same to the Opposite Party No.2 for final decision as to the admissibility of the claim on merit. In view of the above letter Ex.A2, there is no delay on the part of the complainant in giving intimation to the Opposite Party No.1.


There is also some force in the contention of the Opposite Party No.1 that some time will take place in collection of all relevant documents i.e. 1) Death certificate, 2) Final report of the police, 3) First Investigation Report, 4) Inquest panchanama and 5) Post mortem report duly certified by the police officials, original Income certificate issued by the M.R.O., and original Legal heir certificate issued by Village Panchayat Secretary and the above said reasons the Opposite Party No.1 has request the Opposite Party No.2 to revaluate and reconsider the claim of the complainant vide letters Ex.A2 and Ex.A3.

Therefore in view of the above discussion this point is decided in favour of the complainant and against the Opposite Party No.2 and 3 and this point is also in favour of the Opposite Party No.1 as the Opposite Party No.1 had obtained the policy from Opposite Parties 2 and 3 by paying the premium amount paid by the husband (deceased) of the complainant.

On perusal of a decision reported in C.P.J. October 2005 Part 10, Volume-IV, Page 41 of Tamilnadu State Consumer Disputes Redressal Commission, Chennai between New India Assurance Co.Ltd., V/s N. Ekambaram in Appeal No.129 of 2000 – Decided on 16-3-2005. Consumer Protection Act 1986 – Section 2(1)(g) – Insurance – Repudiation of claim – Breach of condition alleged – Contention, accident not immediately intimated to Company – complainant illiterate, not aware of the Policy conditions mentioned in English – Condition even if not complied not fatal to claim as does not amount to fundamental breach – Company liable under Policy.

In that case, the Power tiller belonging to the complainant, which was insured with the Opposite Party was damaged in a Fire accident on 3-7-1997. The complainant informed the Opposite Party about the accident only on 3-12-1997, which is 5 months delay. In spite of 5 months delay, in intimating about the accident, the District Consumer Forum and the State Commission, Chennai have delivered the order in favour of the complainant (Insurer). In this case the complainant has informed about the accident to the Opposite Parties with a delay of 41 days. Which not total in view of above decision. Hence we feel it necessary to direct the Opposite Parties 2 and 3 to consider the claim of the complainant and pay Rs.1,00,000/- insured amount of the policy. Therefore we decide this point in favour of the complainant and against the Opposite Parties 2 and 3.

6. POINT No.2 :- On perusal of Ex.B3 shows that there was corrections and alterations which was not found in Ex.A4 therefore it is obvious that some body in the office of the Opposite Parties 2 and 3 might have manipulated and corrected, so as to deny the claim of the complaint, hence Ex.B3 cannot be believed. Therefore the Ex.A4 document dated 18-12-2006 is in limitation for filing the case in this Forum.



7. POINT No.3 :- In view of the findings on point No.1 and 2 we find that the complainant is entitled for the reliefs as mentioned below. The complainant has claimed the interest @ 12% per annum on Rs.1,00,000/- and also claimed an amount of Rs.1,000/- towards compensation and Rs.2,000/- towards the cost of the complaint. But in our opinion the complainant is entitled the interest on policy amount @ 9% per annum and not @ 12% per annum. In view of granting interest on policy amount the complainant is not entitled any compensation or damages. The complainant is also entitled for a sum of Rs.1,000/- only towards the cost instead of cost Rs.2,000/-. The point is also decided accordingly in favour of the complainant and against the Opposite Parties 2 and 3. In view of our findings on the foregoing points 1 and 2, the complaint is allowed partly as under.

M.Ch.V.Pavan Kumar, s/o.M.D.V.V.Prasad, age: 25 years, Fire colony,

Aswaraopet, Khammam District.

…Complainant

and

1. Sri Ram Chit Funds Pvt. Ltd., Sathupalli, rep. by its Branch Manager, branch

Office, sathupalli, Khammam District.



2. Road Safety Club Pvt. Ltd., rep. by its Manager, 2A, II floor, Prakasham

Road, T.Nagar, Chennai-017.



3. National Insurance Co. Ltd., rep. by its Branch Manager, Branch office,

Wyra Road, Khammam Town and District. (George Town Branch,

Chennai-108, through local branch office).

…Opposite parties.







O R D E R



1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The averments made in the complaint are that the complainant had joined as a member in Road Safety Club and paid the premium through opposite party No.1 on 8-6-2004 for a period of 36 months by paying an amount of Rs.1800/- and got obtained certificate No.313870, accordingly the opposite party No.2 paid the same to the TATA AIG General Insurance Company for the first 12 months i.e. from 8-6-2004 to 7-6-2005 for coverage of insurance and after that the opposite party No.2 had paid the amount, which was paid by the complainant as premium to the opposite party No.3 for a period of another 12 months i.e. from 8-6-2005 to 7-6-2006 and after receipt of premium amount the opposite party No.3 had issued Group Personal Accident Master policy, bearing No.500411/42/05/8200000026 to the complainant through the opposite party No.1.


The complainant further submitted that as per the insurance coverage of the policy, the sum assured for an amount of Rs.3,00,000/- and the percentage of capital sum assured as per the policy under the categories of death occurred in road accident or bodily injuries like permanent total disablement or partial disablement.


The complainant further submitted that he met with an accident on 4-12-2005 at 7-30 p.m. at Vivekananda Centre, Aswaraopet, while he was boarding on an auto and sustained crushed injuries to his left hand wrist and left leg and other parts of the body. Accordingly a complaint was registered u/s.338 I.P.C. in Cr.No.149/2005 at P.S.Aswaraopet. Immediately after the accident, the complainant was shifted to Government Health Centre, Aswaraopet and from there he was shifted to KAY VEE hospital, Eluru and admitted as inpatient from 5-12-2005 to 9-1-2006 and conducted two operations to the complainant on 14-12-2005 and on 31-12-2005 and also taken treatment for one year as out patient.


The complainant also submitted that he lost his earnings for one year due to multiple fractures on his left hand, left leg and bodily injuries and submitted that the Regional Medical Board, Gandhi Hospital, Secunderabad certified on 21-4-2006, that the complainant became 40% permanent partial disabled, as such the complainant stated that the opposite parties No.1 to 3 are jointly liable to pay compensation for the sum assured for an amount of Rs.1,50,000/-.


And also submitted that the opposite parties did not respond to settle the matter, when it was brought to their knowledge. As such the complainant approached the Forum on his grievance and prayed to direct the opposite parties No.1 to 3 to pay the insurance amount of Rs.1,50,000/- together with interest at the rate of 12% P.A. from the date of accident and Rs.45,000/- towards damages and costs of Rs.5,000/-.

2. Along with the complaint, the complainant filed affidavit and also filed

(i) Attested copy of F.I.R., dt.6-12-2005,

(ii) Xerox copy of charge sheet, dt.25-1-2006

(iii) Xerox copy of wound certificate, dt.28-1-2006 issued by Dr.K.S.Vishnu Mohan

(iv) Membership certificate issued by opposite party No.2

(v) Certificate of insurance issued by TATA AIG General Insurance Company Ltd.,

(vi) Certificate of insurance issued by opposite party No.3

(vii) Certificate of insurance issued by Bajaj General Insurance Company.

(viii) Representation for claiming the insurance amount made by the

complainant to the opposite party No.1.



(ix) Letters (Nos.4) addressed by the complainant to the opposite party No.2 along

with postal receipts.



(x) Letter addressed by the opposite party No.3 to the opposite party No.2.



3. After receipt of notice, the opposite parties appeared through their counsels and filed counters by denying the averments made in the complaint.

4. In the counter, the opposite party No.2 admitted the issuance of policy in favour of the complainant for a period of one year i.e. from 8-6-2005 to 7-6-2006 and submitted that as per the terms and conditions of the policy, the particulars of the event must be given to the opposite party No.2 immediately to the accident with written notice and the notice must be given within one month after such loss of sight or amputation along with necessary documents. The opposite party No.2 also submitted that the complainant failed to inform the injuries as sustained in the motor accident within time as per the condition No.3 of the policy and there was an abnormal delay. As such there is no negligence or deficiency on the part of them. The opposite party No.2 further submitted that they allowed the members by paying prescribed membership fee as per the conditions of the policy and the issuer will not be liable to pay any amount, the insurance company will be solely liable to pay the amount as insured and the complainant without referring the matter to the arbitrator as provided under the terms and conditions of the opposite party No.2, straight away approached the forum, and also submitted that the complainant unnecessarily joined the opposite party No.1 as a party to the proceedings to create the jurisdiction. As such they prayed to dismiss the complaint.

5. The opposite party No.1 filed a memo to adopt the contents of counter of opposite party No.2 as its counter.

6. In the counter, the opposite party No.3 made same contentions as mentioned in the counter of opposite party No.2 and also contended that the injuries sustained by the complainant at the time of accident were not covered the permanent partial disability of the conditions of the policy and as per the condition No.3 of the policy, there was an abnormal delay, i.e. from 4-12-2005 to 10-8-2006 in giving intimation to the opposite party No.3. As such they prayed to dismiss the complaint.

7. In support of his averments, the complainant filed chief-affidavit by stating that his father had given an intimation to the opposite party No.1 within 20 days from the date of accident and also mentioned that, at that time he was at hospital as inpatient and after 35 days, he was discharged and unable to move from the bed for five months and underwent four operations to his left hand and also mentioned that he lost sensation to his left hand upto the wrist along with five fingers and also submitted that due to the above said circumstances, he could not intimate the information about the injuries to the opposite party No.3 and after some recovery, he intimated the same to the opposite parties No.1 to 3 on 16-6-2006 with necessary documents, but the opposite parties did not send any claim form to the complainant and has not made any payments. As such the complainant issued legal notice on 20-11-2006.

8. The complainant filed a memo and stating that to adopt the contents of chief-affidavit as Written Arguments. Along with a memo, the complainant filed the following documents.

(i) Two photographs of the complainant at the time of bedridden

(ii) Attested copy of Remand report

(iii) Attested copy of Percentage of disability certificate issued by Gandhi hospital,

Secunderabad.



(iv) Payment receipts, dt.8-1-2006, 24-1-2006 and 5-12-2005, issued by KAY VEE

hospital, Eluru.



(v) Medical bills Nos.8



9. In view of the above submissions and basing on the material filed by both the parties, now the point for consideration is, whether the complainant is entitled to any relief as prayed or not?

Point

10. As seen from the above averments, the complainant obtained Group Personal Accident Master Policy from the opposite party No.3 through opposite party Nos.1 and 2 for a period of one year and within the policy period the complainant met with an accident on 4-12-2005 and sustained multiple fractures on his left hand, left leg and also sustained other bodily injuries and immediately after the accident, it was registered under section 338 of I.P.C. in Cr.No.149/2005 at P.S.Aswaraopet and the complainant shifted to hospital and taken treatment as inpatient for one month four days as inpatient and also taken one year treatment as outpatient at KAY VEE hospital, Eluru, and about five months he was unable to move from the bed and after that he intimated the injuries to the opposite parties No.1 to 3 with necessary documents on 16-6-2006 and also issued legal notice to them on 20-11-2006 by claiming the amount, but there was no response from the opposite parties No.1 to 3, as such prayed for redressal.

11. On the other hand, the opposite parties No.1 to 3 made same contentions, that the complainant did not intimate the accident within one month and also disputed the injuries as sustained by the complainant, which were not covered under the terms and conditions of the policy. But it is the case of the complainant that he was taken treatment as inpatient at KAY VEE hospital, Eluru for one month four days i.e. from 5-12-2005 to 9-1-2006 and at that time the complainant got operated for two times i.e. on 14-12-2005 and 31-12-2005. In support of this, the complainant filed discharge summary dt.17-1-2006 and wound certificate, dt.28-1-2006, issued by Dr.Vishnu Mohan, M.S. Ortho., KAY VEE hospital, Eluru and also filed percentage of disability certificate issued by the Regional Medical Board, Gandhi Hospital, Secunderabad and as per the said certificate the complainant has been suffering with 40% permanent partial disability.


As such the plea raised by the opposite parties regarding the delay in intimation is overruled and it was safely concluded in favour of the complainant and moreover as per the written arguments filed by the complainant the cause of delay in giving intimation to the opposite parties about the accident was properly explained and as seen from the F.I.R. and charge sheet, it is clear, that the accident took place on 4-12-2005 and immediately after the accident the complainant was shifted for treatment and this fact was also revealed in the discharge summary, and we feel that the explanation given by the complainant in the written arguments is proper and it is sufficient to come to the conclusion in favour of the complainant. As such the point is answered accordingly in favour of the complainant.

12. In the result, the complaint is partly allowed, directing the opposite party No.3 to pay 40% of the sum assured as per the Group Personal Accident Master policy, bearing No.500411/42/05/8200000026 to the complainant together with interest at the rate of 9% P.A. from the date of complaint i.e. from 23-5-2007till the date of deposit and also directed to pay an amount of Rs.1,000/- towards costs. The complaint against opposite parties No.1 and 2 is dismissed.

Parvathy Amma,

67 years,

7/916, Vadukapalayam,

Kalpathy, Palakkad 678003. - Complainant






Vs




The National Insurance Company Ltd.,

East Fort Complex,

Fort Maidan,

3rd Floor, Kunnathurmedu.P.O,

Palakkad. - Opposite party



O R D E R











Complainant had taken the mediclaim policy with the opposite party in the year 2006 as per policy No.570705/48/06/8500000377 expiring on 14/07/07. The policy was renewed as per policy No. 570705/48/07/8500000454 for the period from 15/07/07 to 14/07/08. The complainant was admitted in the Kovai Medical Center and Hospital Ltd., Coimbatore on 09/07/08 due to coronary artery disease.


The complainant had undergone heart surgery on 10/07/08. The complainant had spent more than Rs.1,25,000/- in the hospital. The complainant filed the claim petition for Rs.50,000/-. But the opposite party repudiated the claim stating that the complainant was diabetic and has got hypertension for the past 7 years. According to the complainant heart attack or unstable angina was not pre-existing before issuance of the policy. The complainant is an old lady and had incurred heavy loss due to the repudiation of the claim by the opposite party. The complainant is put to much hardship, difficulties, harassment due to the irresponsible and unfair

trade practice committed by the opposite party. Hence the complaint. The

complainant prays for an order directing the opposite party to pay an amount of Rs.1,25,000/- towards the medical expenses incurred and mental agony caused to the complainant.




2. The opposite party filed version stating the following contentions. The opposite party admitted that an Aroghya Bima policy was issued to the complainant on the basis of the individual declaration made by her for a sum of Rs.50,000/-. The complainant had undergone heart surgery on 10/07/08 and a claim form was submitted to the opposite party with her medical records. On going through the medical records it was found that the complainant was diabetic and was suffering from hypertension for the past 7 years. According to opposite party hypertension and diabetic were the main reasons for the illness and the policy was obtained without disclosing the existing illness. This amounts to fundamental breach and suppression of materials facts on the part of the insured. Hence the complaint is liable to be dismissed with cost.




3. Complainant was cross examined. Complainant filed affidavit along with documents. Ext.A1 to A4 marked on the side of complainant. Opposite party also filed affidavit with documents. Ext.B1 to B5 marked on the side of opposite party. Exts.B3 and B5 was marked subject to proof. Matter was heard.




4. Points to be considered are;

1.

Whether there is any deficiency in service on the part of opposite party?
2.

If so, what is the relief and cost?




5. Points 1 & 2:

The opposite party admitted that an Aroghya Bima policy was issued to the complainant for an insured sum of Rs.50,000/-. According to opposite party as per exclusion No.4.1 of the policy, all expenses incurred on disease/injuries which are preexisting when the cover incepts for the 1st time are not payable. In Ext.B5,

the discharge summary issued from Kovai Medical Center & Hospital Ltd, under the head history it is stated that the complainant is a known diabetic/hypertensive

since 7 years. It is the settled position that a mere history given in the hospital ipso facto is of no consequence as history alone cannot be treated as valid grounds to repudiate a claim. Further as per Ext.A2, discharge summary, it is specifically stated that patient is suffering from effort angina and exertional dyspnea since February 2008. Complainant herein has renewed the policy in the year 2007. Hence it is clear that the said disease is not a preexisting one. Opposite party has not adduced any evidence to show that the insured was suffering from the said disease prior to the issuance of the policy, or having knowledge of the disease, has deliberately suppressed it prior to the issuance of the policy. Complainant while cross examined has also not deposed anything to show that she was diabetic and hypertensive for the past 7 years as alleged by the opposite party.




6. In the aforesaid facts and circumstances, we are of the view that opposite party failed to prove the preexisting disease of the complainant with cogent and convincing evidence and that the complainant has suppressed material facts in the proposal form.




7. In the result complaint allowed. We direct the opposite party to pay an amount of Rs.50,000/-(Rupees Fifty thousand only) being the claim amount and Rs.10,000/-(Rupees Ten thousand only) as compensation and Rs.1,000/-(Rupees One thousand only) cost to the complainant. The order shall be complied within one month from the date of receipt of this order failing the whole amount shall carry interest @ 9% p.a from the date of order till realisation.




8. Pronounced in the open court on this the 27th day of August, 2009

M.V.Issac

S/o. Varkey

Farmer

Mukkath House

Koranchira (P.O)

Kizhakkenchery

Alathur Taluk

Palakkad. - Complainant






V/s




1. The Branch Manager

National Insurance Co Ltd

Palakkad Branch

3rd Floor

Kanoos East Fort Resort

Kunnathurmedu Post

Palakkad – 678 013

(Adv.A.R.V.Sankar)

2. National Insurance Co Ltd

Palakkad Branch

East Fort

Palakkad – 678 013 - Opposite parties



O R D E R





Complainant insured his cow with the Opposite party for a sum of Rs.15,000/- as per policy No.57070547069400002771.Period of the policy was from 21/02/2007 to 20/02/2008. The said cow died on 08/03/2007 upon delivery. Complainant submitted all the necessary documents along with the claim application with the opposite parties. But the complainant received letter dated 13/06/2007 repudiating the claim. The reason stated for repudiating the claim is that as per policy exclusion any claim othen than accident occuring - 2 -




within 15 days of commencement of policy is not admissible. According to the complainant, the date of commencement of the policy is from 21/02/2007. The cow died on 08/03/2007 upon delivery. So the death of the cow happened in the 16th day of commencement of policy. Complainant caused a lawyer notice to the Ist opposite party on 09/08/2007. But Ist Opposite party sent reply stating false allegations. The act of opposite parties in repudiating the genuine claim of the complainant amounts to deficiency in service. Hence the complaint. Complainant claims an amount of Rs.15,000/- being the claim amount together with 12% interest per annum from the date of death of the cow till realization of the same and Rs.3,000/- as compensation.




Opposite parties filed version contending the following.




That the policy is issued by the company and not by the Ist opposite party in his personal capacity. Without impleading the company, the claim is not maintainable. As per the conditions in the policy, exclusion clause "any claim other than relating to accidents occuring within first fifteen days of the commencement of the policy is excluded".




According to opposite party the animal was suffering from the illness at the time of effecting policy. The policy obtained by the party was after suppressing material fact. The animal was suffering from serious illness as on 01/03/2007 and 8 days after the commencement of the policy animal died. The claim for the animal arose on 01/03/2007 is born out by records and that was within 15 days after the commencement of the policy. The claim was repudiated on genuine grounds and hence no deficiency in service on the part of opposite parties. According to opposite parties complaint is liable to be dismissed.




Evidence adduced consists of the proof affidavit of both parties. Exhibit A1 to A8 series marked on the side of the complainant. Exhibit B1 to B3 marked on the side of opposite parties. Both parties filed questionnaire and their respective answers.




Now the issues for consideration are

- 3 -




1. Whether the act of opposite parties repudiating the claim of the complainant amounts to deficiency in service?

2. If so, what is the relief and order?

Point No.1

Heard both parties in detail. There is no dispute regarding the issuance of the policy and the death of the cow within the period of the policy. According to the opposite party, the animal was suffering from illness at the time of availing policy itself and complainant has suppressed the fact at the time of availing policy. Further as per the exclusion clause in the policy, any claim other than accident happening within 15 days of the commencement of the policy is excluded. Policy coverage is from 21/02/2007 to 20/02/2008. The animal was suffering from serious illness as on 01/03/2007. So the claim arosed on 01/03/2007. So the claim arosed within 15 days from commencement of the policy.




We have carefully gone through the relevant evidence on record. In Exhibit B1 policy it is specifically stated that the period of the policy is from 21/02/2007 to 20/02/2008, both dates inclusive. Hence policy commences from 21/02/2007. So the death of the cow is on the 16th day of the commencement of the polciy. The exclusion clause states that any claim other than accident occured within 15 days of commencement of the policy is inadmissible. Since the death of the cow can be termed as an accident, the clause itself does not apply. Further the stand of the opposite party that cow was suffering from illness on 01/03/2007 and hence the claim starts on that date is unacceptable.




The contention of the opposite party that the insured suppressed material facts while availing policy is also not substantiated by any convincing evidence. As per the policy sum insured is seen as Rs.15,000/-




In view of the above discussions we are of the view that opposite party has repudiated the genuine claim of the complainant on flimpsy grounds. Hence opposite party is liable to compensate the complainant for the deficiency in service on their part.




- 4 -

In the result complaint allowed. Opposite party is directed to pay an amount of Rs.15,000/- being the claim amount together with Rs.2000/- as compensation and Rs.1000/- as cost of the proceedings. Order shall be complied within one month from the date of receipt of order failing which the whole amount shall carry interest at the rate of 9% per annum.

Complainant:

M. Nazeer, S/o Meera Sahib, Koodathittayil Veedu, Vazhakkadu, Vembayam, Nedumangad Taluk, Thiruvananthapuram District.



Opposite party:

M/s National Insurance Company Ltd., represented by the Senior Branch Manager, Soundarya Buildings, II Floor, M.G. Road, Thiruvananthapuram-1.








ORDER






Brief facts of the case are as follows: Complainant is the owner of an Omni Van of Maruti make bearing Reg. No. KL-01S 7338 and it was having a valid comprehensive insurance policy during the period from 04.10.2003 to 03.10.2004 with the opposite party vide policy No. 570201/31/03/6109446. The opposite party had issued the policy after verifying all the required details regarding the ownership and possession of the vehicle. While so, on 08.10.2003 the vehicle was stolen from the house of Sri. Abdul Salam, a relative of the complainant, where the vehicle was kept for safe custody, as the complainant had believed that the vehicle would be more safer in the house of Sri. Abdul Salam as attempts for theft of vehicles were very frequent in the complainant's area.


As soon as it was known that the vehicle was stolen, the fact was reported to the Vattappara Police Station by Sri. Abdul Salam himself as this complainant was out of station on that day and a crime was registered as Crime No. 224/2003 under Sec. 379 of the I.P.C and the police had made all efforts to find out the vehicle. Unfortunately, all the attempts of the police proved to be futile and finally the police had filed a U.N report to the Judicial First Class Magistrate's Court I of Nedumangad that the vehicle could not be found out and till date neither the vehicle is found out nor any information is received regarding the vehicle. As the theft is covered by the policy, the complainant had submitted a claim petition before the opposite party for payment of the insurance amount of Rs. 1,38,000/- though the vehicle was purchased for a higher amount.


There were no impediments for the payment of the insurance amount as there was a valid insurance policy and the vehicle was in the name and possession of the complainant himself though on the date of theft the vehicle was kept in the house of Mr. Abdul Salam. But to the total dismay and disappointment of the complainant, the opposite party had repudiated the claim vide letter dated 12.10.2004 stating that they are unable to entertain the claim on the ground that at the material time of theft the vehicle was in another person's custody and that the ownership had been transferred and further that conditions 4 and 8 of the policy had been violated as the vehicle had been stolen from a third person's house.


Complainant also submitted that the ownership of the vehicle had never been transferred to anybody including Mr. Abdul Salam and the complainant is the owner of the vehicle though a fake agreement was entered into by the complainant and the said Abdul Salam for the strength of repayment of a debt by the complainant. It is further submitted that the said fake agreement was made on 22.03.2003 and the policy was taken on 04.10.2003 by the complainant himself. The opposite party was satisfied of the ownership and possession of the vehicle at the time of issuing the policy and it is against the principles of law and natural justice that they turn down the claim raising untenable contentions. Hence this complaint.




In this case the opposite party National Insurance Company Ltd. filed their version denying the claim of the complainant. They stated that the complainant is not entitled for any relief as prayed for in the complaint since he sold out the vehicle KL-01S 7338 to one Ibrahim Kunju, Pothencode and a sale agreement dated 22.03.2003 was executed between the complainant and the purchaser of the vehicle in respect of the sale. Since the vehicle was sold out the complainant ceased to be the owner of the vehicle. The alleged theft was committed when the vehicle was under the ownership and possession of the purchaser of the vehicle. The theft occurred at the premise of the purchaser at Pothencode. In the motor claim form submitted by the complainant before the opposite party, it is stated that the vehicle was stolen from the car shed of his own residence, wherein it is also stated that at the time of theft the vehicle was in charge of one Ibrahim. But in the complaint, it is stated that the vehicle was stolen from the house of Abdul Salam. But did not disclose his place of residence.


The police was informed by the owner of the vehicle Ibrahim Kunju from whose residence the vehicle was stolen. Based on the statement given by Ibrahim Kunju, the Vattappara Police registered the Crime No. 224/2003 under Sec. 379 of the IPC. In the F.I Statement given by the owner of the vehicle Ibrahim Kunju, it is stated that he purchased the vehicle for his own personal use and since there was hypothecation agreement with a finance company, the ownership of the vehicle could not be transferred to his name. The complainant never intimated the transfer of vehicle to the opposite party.


The complainant violated policy conditions thereby disentitled for any claim under the policy. The opposite party is admitted that the vehicle was covered under policy No. 570201/31/03/6109446 valid from 04.10.2003 to 03.10.2004. But the complainant sold the vehicle to Ibrahim Kunju. The vehicle was stolen from his possession at his premises. The transfer of the vehicle has not been intimated to the company till date. The opposite party stated that the repudiation of the claim is perfectly justifiable. The reason for repudiation are clearly explained in the letter. The complainant has no insurable interest in the vehicle as the ownership of the vehicle is transferred.


The vehicle was stolen from a third person's house. Thus the complainant violated conditions 1, 4 & 8 of the policy. Condition No. 4 of the policy provided for the safeguarding of the vehicle. This condition is also violated by the complainant, since the vehicle was parked at some other's compound having not even a gate at the time of theft. The opposite party further stated that condition No. 8 of the policy states that all statements given by the insured must be true. The complainant stated in the claim form that the vehicle was stolen away from his car shed at Vembayam. But the actual theft occurred at Pothencode. Thus the complainant deliberately hidden true material facts. Hence they prayed for the dismissal of the complaint.




In this case the complainant and opposite party had filed affidavits in lieu of chief examination. In this case from the side of complainant, complainant was examined as PW1 and Ibrahim Kunju was examined as PW2. 3 documents were marked on his behalf. Opposite party filed 7 documents which were marked as Exts. D1 to D7. The opposite party was examined as DW1 and A.S.I of Police, Vattappara was examined as DW2.




Points that would arise for consideration are:-

1.

Whether there is deficiency in service from the side of opposite party?
2.

Whether the claim repudiated by the opposite party is justifiable?
3.

Whether the complainant is entitled to get the reliefs sought for?
4.

Costs.

Points (i) to (iv):- In this case the complainant argued that at the time when the vehicle was stolen from the house of Abdul Salam the father of Ibrahim Kunju, where the vehicle was kept for safe custody, the vehicle was having valid comprehensive insurance policy. To prove his contention he has produced policy copy. As per Ext. P1 policy copy the name of insured is seen as Nazeer. M, the complainant having the period of insurance from 04.10.2003 to 03.10.2004 and the insured amount is Rs. 1,38,000/-. But the opposite party argued that at the time of theft, the vehicle was in another man's custody and that the complainant had no insurable interest as the ownership had been transferred. To prove that contention, the opposite party produced Ext. D2 document, the copy of sale agreement between the complainant and Ibrahim Kunju. As per this document the complainant had sold the vehicle to Ibrahim Kunju for Rs. 1,55,000/-. As per this document the vehicle and its documents were handed over to Ibrahim Kunju on that day itself i.e, on 22.03.2003.


The complainant states that there was some financial transaction between the complainant and the above said Ibrahim Kunju and his father Abdul Salam. For that purpose they have executed that sale agreement and the vehicle was kept at the house of Ibrahim Kunju for safe custody. But the opposite party argued that the complainant had handed over the vehicle to him and at that time the vehicle was in possession of Ibrahim Kunju. For strengthening their contentions the opposite party has produced Ext. D4 document. Ext. D4 is the statement written by Ibrahim Kunju to the investigator of opposite party. In that document Ibrahim Kunju admitted that he had purchased the vehicle from the complainant on 22.03.2003.


Thereafter he has been using the vehicle for his own purposes and usually keeping the vehicle at his own premises and stated that there is compound wall in his property, but no gate. He stated that on 08.10.2003 morning when he understood that the vehicle has been stolen from his premises, he immediately informed the matter to Vattappara Police Station and the police authorities visited the spot and prepared the mahazar and he stated the R.C Book and key of the vehicle are in his custody and he informed the matter of theft to newspapers and R.T Office. The mahazar is marked as Ext. D3, F.I.R and statement of Ibrahim Kunju, the petitioner in Crime No. 224/2003 in connection with the theft of the vehicle No. KL-01 S 7338 Maruti Van is marked as Exts. D1 and D1(a).


In these documents Ibrahim Kunju stated that he had purchased the vehicle from the complainant for Rs. 1,55,000/- for his own use on 22.03.2003 and thereafter he was using the vehicle and keeping the vehicle at his own premises. And he also admitted that R.C Book was in his possession and since there was hypothecation agreement with a company the ownership of the vehicle could not be transferred to his name. The main contention of the opposite party is that the complainant has no insurable interest in the vehicle as the ownership of the vehicle is transferred. In this case the opposite party admitted that the vehicle was covered under policy No. 570201/31/03/6109446 valid from 04.10.2003 to 03.10.2004. But the complainant is not entitled for any amount since the vehicle was already sold to Ibrahim Kunju. The transfer of vehicle has not been intimated to the opposite party.


The complainant violated policy conditions, thereby disentitled for any claim under the policy. The opposite party argued that the repudiation of the claim by the opposite party is perfectly justifiable. The repudiation letter is marked as Ext. P2. The reasons for repudiation are that the complainant has no insurable interest in the vehicle as the ownership of the vehicle is transferred and that the vehicle was stolen from a third person's house and thus the complainant violated conditions 1, 4 and 8 of the policy. The opposite party produced the policy conditions before this Forum and marked as Ext. D6. As per Ext. D6 policy conditions No. 1:- “In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender.”


The complainant in this case has not filed any complaint before the police till date regarding the theft of his vehicle. It is Ibrahim Kunju who had filed the complaint before police authorities and the police authorities registered the crime as N. 224/03. In that crime Ibrahim Kunju stated that his vehicle was stolen. Nowhere in the police record it is seen that vehicle was complainant's vehicle. There is no case regarding the theft of his vehicle. Condition No. 4 of the policy provides for the safeguarding of the vehicle. This condition is also violated by the complainant as the vehicle was stolen from the premises of Ibrahim Kunju, having no gate at the time of theft. The complainant stated that the vehicle was kept at Ibrahim Kunju's house for safe custody.


That contention of the complainant proved as false. As per condition No. 8, “ The due observance and fulfilment of terms, conditions and endorsements of policy in so far as they relate to any thing to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy.” The claim form submitted by the complainant is marked as Ext. D7. In this case the complainant stated in the claim form that the vehicle was stolen away from his car shed at Vembayam. But the actual theft occurred at Pothencode, the house of Ibrahim Kunju. Thus the complainant deliberately hid the true material facts. In this case the complainant was examined as PW1 and in his deposition. In his deposition he admitted that the vehicle has been stolen from the house of Ibrahim Kunju. From this deposition we have concluded that the possession of the vehicle was also with Ibrahim Kunju.


It is not believable to keep the vehicle 2 kms far away from the house of complainant and also the complainant has no evidence to show that there is financial transaction between Ibrahim Kunju and the complainant. We are of the opinion that the complainant had sold the vehicle to Ibrahim Kunju as per Ext. D2 agreement. In his deposition as PW2 Ibrahim Kunju stated. In that report (marked as Ext. D4) Ibrahim Kunju stated that he had purchased the vehicle bearing No. KL-01 S 7338 from the complainant on 22.03.2003 and thereafter the vehicle has been in his custody and he has been using the vehicle for his own purposes. He could not transfer the name in the R.C book in his name because there was financial hypothecation with Kotak Mahindra etc. The other depositions of Ibrahim Kunju is contradictory to that statement in the D4 document. In this case from the side of opposite party the A.S.I of Police, Vattappara who prepared the mahazar and taken the statement of Ibrahim Kunju was examined as DW2.


Through his deposition opposite party proved Exts. D1 and D1(a) documents. In this case the opposite party has proved their contention as to the repudiation of claim of the complainant is legal and valid by evidences and documents. Opposite party has produced sufficient records to prove their contentions beyond doubt. In this case from the records and evidence we have concluded that the complainant had sold the vehicle to Ibrahim Kunju and handed over the vehicle and documents to him on 22.03.2003. The vehicle was stolen from the house of Ibrahim Kunju while the vehicle was in his possession. But the name of the complainant in the R.C Book and insurance was not transferred to the name of Ibrahim Kunju as per law.


But they claimed the insurance benefit on the ground that the R.C book is in the name of complainant and in his favour the insurance policy was renewed. But actually the vehicle had been sold in favour of Ibrahim Kunju. It is the duty of Ibrahim Kunju to change all the relevant papers in accordance with law in his favour. He has failed to do so. At this juncture the complainant has no right to claim insurance benefit after he sold the vehicle. At the time of theft the complainant had no insurable interest that the ownership had been transferred in fact. And moreover the complainant has violated the policy conditions as per conditions No.1, 4 and 8 .



The counsels for the complainant and opposite party contested the case very vehemently. The learned counsel for the complainant produced two decisions of appellate courts.

1.

Khem Chand Sapra Vs. Oriental Insurance Co. Ltd. [III (2002) CPJ 126 (NC)]
2.

Sukhpal Singh Vs. United India Insurance Co. Ltd. [III (2005) CPJ 61].

In this case Hon'ble National Commission held that in a case of theft the owner is to be indemnified by the insurance company and the other irrelevant conditions of the opposite party cannot be accepted. The complainant in this case was not the owner of the vehicle and the vehicle was not in his custody and he has no police case regarding the theft of his vehicle. The facts and circumstances of the above referred case is entirely different from this case. In that case there was dispute regarding the word 'theft' and the driver of the vehicle was one of the accused in the crime of theft. The Hon'ble Uttar Pradesh State Commission in Sukhpal Singh Vs. United India Insurance Co. Ltd had held that mere possession of vehicle with someone else will not take away right of owner so long as legal documents of transfer of ownership brought on record.


In this case the ownership and possession of the vehicle was transferred to another man's name. But there was hypothecation agreement with a finance company, the ownership of the vehicle in R.C Book could not be transferred to that person's name. At the time of theft the vehicle was in his possession. As per Exts. D1 to D4 documents the ownership and possession of the vehicle was in the name of Ibrahim Kunju. From the above it is clear that the person who had purchased the vehicle has not taken timely action for transferring the names in the R.C Book and insurance policy within the statutory period. The opposite party has produced 2 decisions.




1.

Oriental Insurance Co. Ltd Vs. Munimahesh Patel [ IV (2006) CPJ 1 (SC)]
2.

New India Assurance Co. Ltd. Vs. Dharam Singh & another [III (2006) CPJ 240 (NC)] wherein it has been held by the

Hon'ble National Commission that in theft of insured vehicle delay in lodging FIR and sending claim to insurer is clear violation of policy conditions and the Hon'ble National Commission finds that the claim is rightly repudiated and there is no deficiency in service. In the present case the complainant had not filed any complaint before police and not produced FIR before the opposite party regarding the theft of his vehicle till date. Hence the complainant violated the policy condition No. 1. Hence from the above discussions we are of the opinion that the claim repudiated by the opposite party is in accordance with policy conditions and therefore valid and maintainable and we find no deficiency in service on the part of the opposite party. Hence the complaint is dismissed. No cost.