Smt.Alimamma,

W/o Abdul Ali,

Aged about 48, years,

R/a. D.No.19-89-53-24,

K.S.R.Nagar, Mulki,

Mangalore-574 154. …….. COMPLAINANT



VERSUS



The Senior Divisional Manager,

The National Insurance Co. Ltd.,

Rasik Chambers,

Opp. Central Market,

Mangalore-575 001. ……. OPPOSITE PARTY


1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party claiming certain reliefs.

The Complainant is covered under the Universal Health Insurance Policy bearing No.604300/48/07/8500001975 for a sum of Rs.30,000/- the said policy is valid from 19/02/2008 to 18/02/2009.

It is submitted that on 2.4.2008, the Complainant was admitted at Mulki Nursing Home with a complaint of fever, Gastritis and chest pain. The doctor who treated the Complainant has asked her to admit as inpatient, the Complainant was admitted on 2.4.2008 and was discharged on 3.4.2008. The Complainant submits that she has spent a sum of Rs.2,375/- for the treatment, thereafter she has submitted the claim form with the original bills and the medical certificates. The Opposite Party vide their letter dated 10.6.2008 repudiated the claim on the ground that the viral fever, acute gastritis and IHD are pre-existing diseases. It is submitted that the repudiation of the Opposite Party is not legal and hence it is contended that the service rendered by the Opposite Party amounts to deficiency and hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to pay a sum of Rs.2,375/- with interest at 12% per annum from 3.4.2008 and further claimed compensation and cost of the proceedings.



2. Version notice served to the Opposite Parties by RPAD. Opposite Party company appeared through their counsel filed version admitted the policy and it is contended that on a scrutiny of papers and the medical certificate given by the attending doctor it was revealed that the Complainant has been treated for viral fever, acute gastritis and IHD. It is submitted that the above disease is a common knowledge that Ischemic Heart disease (IHD) is chronic condition of the heart disease which cannot develop over 1½ months.


The medi-claim policy incepts from 18.2.2008 and the Complainant admitted on 2.4.2008 within 1½ months, the Complainant had pre-existing disease but she had not disclosed in the schedule submitted to the Opposite Party and hence it is contended that the claim of the Complainant is excluded under clause No.4.1 of the Mediclaim Insurance Policy and also denied the expenditure spent by the Complainant and submitted that the alleged treatment was for less than 24 hours. The said treatment could have been taken on OPD basis and hospitalization was not required and contended that the Complainant is not a consumer and there is no consumer dispute and there is no deficiency and prayed for dismissal of the complaint.



3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant proves that the Opposite Party has committed deficiency in service?

(ii) If so, whether the Complainant is entitled for the reliefs claimed?













(i) What order?

4. In support of the complaint Smt.Alimamma (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex.C1 to C9 were marked for the Complainant as listed in the annexure. One Smt.Shyamala Bhat, Administrative officer (RW-1) filed counter affidavit and answered the interrogatories served on him. Ex R1 to R11 were marked for the Opposite Party as listed in the annexure. Both the parties have filed Written Notes of arguments.

We have heard arguments, perused the pleadings, documents and evidence placed on record. We answer the points are as follows:

Point No.(i): Affirmative

Point No.(ii) & (iii): As per the final order.
REASONS

5. Points No. (i) to (iii):

In the present case, the facts which are not in dispute are that, the Complainant is covered under Universal Health Insurance Policy bearing Policy No.604300/48/07/8500001925, the said policy is valid from 19.2.2008 to 18.2.2009. The total sum insured is Rs.30,000/-.

Now the case of the Complainant is that, on 2.4.2008, the Complainant was admitted at Mulki Nursing Home with a complaint on fever, gastritis and chest pain. The doctor who treated the complainant had asked to admit as inpatient and treated for the fever, gastritis and discharged on 3.4.2008. The Complainant contended that she has spent Rs.2,375/- but the Opposite Party company repudiated the claim on the ground of viral fever, acute gastritis and IHD (Ischemic Heart disease) are pre-existing. It is contended that, the Complainant has not taken any special treatment for the above disease and submitted that the repudiation is not just and valid.

On the contrary, the Opposite Party taken a defence that the Complainant was hospitalized and treated for viral fever, acute gastritis and IHD (Ischemic Heart disease). The Ischemic Heart disease is chronic condition of the heart disease which cannot develop over 1½ months. The medi-claim policy incepts from 18.2.2008 and the insured has been admitted in Mulki Nursing Home for IHD on 2.4.2008 within 1½ months of the commencement of the policy which was pre-existing disease which she had not disclosed in the schedule submitted to the Opposite Party at the time of taking the policy. Hence it is contended that the company is not liable.

Now the point for consideration is that, before discussing the point on merits it is worthwhile to reproduce the exclusion clause i.e. 4.1 under the Medi Claim Insurance Policy which reads thus:

“The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any person in connection with or in respect of all diseases/injuries which are pre-existing when the cover incepts for the first time”.



From the above clause it is very clear that if the Opposite Party Company proves that the claim of the Complainant falls within the purview of the above exclusion clause then definitely the Complainant is not entitled for any claim under the policy.

In order to substantiate the case of the Opposite Party, the Opposite Party filed affidavit and produced Ex R1 to R11.

In our opinion, no doubt the non disclosure of the fact that the diseased was suffering from fever or diabetes, blood pleasure, we can say the simple disease like curing within short period is not material matter. As laid down by the Hon’ble Supreme Court, it is not suppression of the fact which is sufficient to attract 2nd para of Section 45 of the Insurance Act but what is requires is that such suppression should be fraudulently made by the policy holder.


The expression ‘fraudulently’ connotes deliberate and intentional falsehood or suppression. Some strong material is required before concluding that the policy holder had played a fraud on the Company. The terms of the policy makes it clear that the averments made as to the state of health of the insured in the proposal form and the personal statement were the basis of the contract between the parties. In the given case undisputedly the Complainant admitted to the hospital for treatment at Mulki Nursing Home on 2.4.2008.


However, we have gone through the discharge summary i.e. Ex.R8 and other documents produced by the Opposite Party as well as the Complainant. The history of the patient discloses that Complainant came with the H/o chest pain, fever and vomiting it has been diagnosed as viral fever, acute gastritis and IHD. There is no record/evidence to show that the Complainant undergone treatment for the above disease before obtaining the policy, in other words there is no evidence on record to show that the Complainant had ever taken any treatment for the alleged disease prior to her examination in Mulki Nursing Home. A person might be suffering a disease but he/she may not take care of that and go to a doctor.


Quite often a person, who might be having some problem with the heart may not be knowing about it and may not go to a doctor. The question always which has to be determined, is, was the pre-existing disease to the knowledge of the insured. This knowledge can be attributed if the person takes some or the other treatment from a doctor/hospital. A person might be having heart problem may not be knowing about it till he gets it tested. There is no evidence that the Complainant knew about the disease at the time of taking of the insurance policy. In the present case, admittedly the Complainant suffered fever and acute gastritis and IHD.


The Opposite Party Company could have examined the treated doctor where she has undergone the treatment for the above disease, because the treated doctor is the best witness to say whether she had pre-existing disease or not. In the instant case, the Complainant never been treated, hospitalized, under gone treatment for any disease nor she had taken treatment for IHD. The consumer being a layman, not supposed to know medical terminology of disease for which he/she has never been treated, hospitalized, undergone operation. The day to day problem which are normal wear and tear of human life, not diseases, not required to be referred in proposal form.


Even in the given case, the disease treated by the doctor to the Complainant is not proved to be a pre-existing disease and the Opposite Party failed to prove that the such disease should not only be existing at the time of taking the policy and also should have existed in the near proximity. If the insured had been hospitalized or treated upon for the said disease in the near past, say, six months or a year he/she is supposed to disclose the said facts. But in the given case it is not such type of case the Opposite Party Company miserably failed to prove the exclusion clause and also failed to show before the Fora that the claim of the Complainant is falls within the purview of exclusion clause.

The discharge summary produced by the parties shows that the Complainant admitted on 2.4.2008 and discharged on 3.4.2008 hence the contention that the treatment was for less than 24 hours is not accepted.

In this connection we would refer the judgment rendered by Delhi State Consumer Disputes Rdressal Commission, New Delhi: III (2005) CPJ 205; in Tirath Dass versus New India Assurance Company Ltd., dealing with the similar contention. The Hon’ble State Commission held that –

Consumer Protection Act, 1986 – Section 2(1)(g) – Insurance – Mediclaim policy – Repudiation of claim – contention, insured suffering from ailment for last two years – complaint dismissed by Forum – Hence appeal – Disease involved gradual de-generating process and was continuing for about two years prior to actual admission in hospital – Process was so slow and gradual that no ordinary person was supposed or expected to know about the nature of disease – Complainant was not supposed to disclose such problem for which he never hospitalized or operated upon – Opposite Party also negligent in not getting medical check up of insured before issuing policy, liable under policy – Order of Forum set aside.

[Paras 6, 7 and 9]





In another case the Delhi State Consumer Disputes Redressal Commission, New Delhi: III (2009) CPJ 51; in Life Insurance Corporation of India and Another versus Arati Chatterjee held that –

(i) Consumer Protection Act, 1986 – Section 15 – Life Insurance – Suppression of material facts – Death due to cardiac arrest – Claim repudiated – Contention, deceased suffering from diabetes mellitus at time of taking of policy, not disclosed – Contention not acceptable – Unless a person hospitalized/ undergone operation/admitted for treatment for particular disease in rear proximity of obtaining policy, not supposed to disclose about day-to-day problem – Complaint allowed by Forum – Order upheld in appeal.

[Paras 4, 5 and 6]

Further in a case National Consumer Disputes Redressal Commission, New Delhi: III (2009) CPJ 6 (NC); in New India Assurance Company Limited versus Arun Krishan Puri held that:

Consumer Protection Act, 1986 – Section 2(1)(g) and 14(1)(d) – Insurance – Mediclaim policy – Insured operated for coronary heart by-pass surgery – Reimbursement claim denied by insurer – Contention, pre-existing disease suppressed by insured – Onus to prove pre-existing disease at time of taking of policy lies on insurer – Except investigator’s report, no evidence produced in support of concealment of pre-existing disease – Complaint allowed by Forum – Order upheld in appeal – Hence revision - In absence of verification of discharge summary by doctor who treated/issued discharge summary, no reliance can be placed on it – Orders of lower Fora upheld.

[Paras 4, 5]

Similarly, in the present case there is no evidence produced in support that the Complainant knew about the disease at the time of obtaining the policy.

In view of the above discussion we are of the considered opinion that the Opposite Party Company has no justification to say the disease suffered by the insured pre-existed prior to commencement of the policy. Therefore the repudiation made by the National Insurance Company amounts to arbitrary and not justifiable.

The compensation is concerned, it is pertinent to note that the claim of the Complainant is only Rs.2,373/- for the so meager amount the National Insurance Company repudiated the claim that itself shows the officials concerned are not bothered to consider the claim positively. By considering the above facts and circumstances of the case, we hereby direct the Opposite Party Company to pay Rs.2,375/- and also pay Rs.5,000/- as compensation for inconvenience and harassment and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.



6. In the result, we pass the following:


ORDER

The complaint is allowed. The Opposite Party Company is hereby directed to pay a sum of Rs.2,375/- (Rupees Two thousand three hundred seventy five only) to the Complainant and further Rs.5,000/-(Rupees Five thousand only) as compensation and Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

Mr.Walter Isac Monteiro,

S/o. Raphael Monteiro,

Christian aged 54 years,

R/A. Suraj Vihar,

Opp: Vamanjoor Church,

Vamanjoor Post,

Mangalore. …….. COMPLAINANT







VERSUS



National Insurance Company Limited,

Rasik Chambers,

Opposite Central Market,

Mangalore – 575 001,

Represented by its

Divisional Manager. ……. OPPOSITE PARTY







1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.

It is submitted that Complainant and his family were covered under the medicalim policy bearing policy No.604300/48/07/8500000785 for a sum of Rs.1,50,000/-. It is submitted that the Complainant’s wife Irene Gretta Monteiro was hospitalized on 1.10.2007 for thyroid surgery. She was hospitalized in City Hospital Mangalore from 1.10.2007 and discharged on 8.10.2007. After the discharge from the hospital, a claim was made for reimbursement of the medical bills and the treatment expenses in total Rs.23,424/-. The Opposite Parties instead of honouring the claim of the Complainant repudiated the claim stating that the claim of the Complainant falls within the purview of exclusion clause 4.3 of the policy.


It is submitted that the exclusion policy i.e., 4.3 is applicable only towards the expenses on treatment and surgeries during the first year of the operation of the policy, the treatment and surgery for the disease took place on 1.10.2007, the Complainant’s wife neither treated nor had she undergone a surgery during the period 6.9.2006 to 15.9.2007 i.e., 1st year of the policy, hence it is contended that the service rendered by the Opposite Party amounts to deficiency in service and filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party to pay Rs.23,424/- towards the medical expenses and Rs.1,00,000/- claimed as compensation and cost of the proceedings.



2. Version notice served to the Opposite Party by RPAD.

Opposite Party appeared through their counsel filed version admitted the mediclaim policy and stated that the policy was valid upto 15.9.2008. The liability of the policy was limited to Rs.25,000/- only.

It is submitted that Mrs. Gretta was admitted to the hospital on 1.10.2007 and she had a history of complaint of swelling in the neck since 9 months which dates back to January 2007. The knowledge of contracting of the disease falls in the first year of the policy i.e., during the policy period 16.9.2006 to 15.9.2007 and contended that the alleged treatment falls under the mediclaim policy exclusion clause No.4.3. As per the exclusion clause the Opposite Party is not entitled any claim and contended that the repudiation made by the Opposite Party is just and valid and there is no deficiency in service and prayed for dismissal of the complaint.



3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant proves that the Opposite Party has committed deficiency in service?



(ii) If so, whether the Complainant is entitled for the reliefs claimed?




(iii) What order?



4. In support of the complaint, Mr.Walter Isac Monteiro (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C4 were marked for the Complainant as listed in the annexure. One Mrs.Shyamala Bhat (RW1), Administrative Officer of the Opposite Party filed counter affidavit and answered the interrogatories served on her. Ex R1 to R8 were marked for the Opposite Party as listed in the annexure. The Complainant produced notes of arguments.

We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.

Point No.(ii) & (iii): As per the final order.
Reasons



5. Point No. (i) to (iii):

The facts which are not in dispute are that the Complainant obtained mediclaim policy No.604300/48/07/ 8500000/785 which covers the Complainant and his family. The said policy was commenced on 16.9.2006 and valid from 16.9.2006 to 15.9.2007 (as per Ex R1).

The dispute between the parties are that the Complainant’s wife Irene Gretta Monteiro was hospitalized on 1.10.2007 for thyroid surgery and she was hospitalized in City Hospital Mangalore from 1.10.2007 to 8.10.2007 and underwent thyroid surgery and spent Rs.23,424/-. Thereafter the Complainant submitted the claim form to the Opposite Party but the Opposite Party repudiated the claim stating that the disease/ailments are falling within the exclusion clause of 4.3 of the policy. It is contended that the same is arbitrary and not valid.

On the contrary, the Opposite Party contended that the claim of the Complainant falls within the purview of exclusion clause 4.3 of the policy and the Complainant is not entitled to get the benefit of the policy.

Now the point for consideration is that, whether the Opposite Party proves that the policy holder i.e., the wife of the Complainant had pre-existing disease at the time of obtaining the policy and which excludes under the terms and conditions of the policy? In a case of like this nature, the entire burden lies upon the Opposite Party Company to prove before the FORA that the claim falls under the exclusion clause.

It is worthwhile to refer policy condition before discussing the points on merits. The exclusion clause 4.3 reads thus –

“The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of:-

“During the first one year of the operation of the policy the expenses on treatment of Benign ENT disorders & surgeries like Tonsilectomy/ Adenoidectomy/Mastoidectomy/Tympanoplasty.

Treatment of diseases such as Cataract, Benign Prostatic Hypertrophy, Hysterectomy, Hernia, Hydrocele, Congenital Internal Diseases, Fissures/ Fistula in anus, Piles, Sinusitis and related disorders, Polycystic ovarian diseases, Non-infective arthritis, Undiscended testis, Surgery of gall bladder & bile duct excluding malignancy, surgery of Genito-urinary system excluding malignancy, Pilonidal Sinus, Gout & Rheumatism, Hypertension, Diabetes, Calculus diseases, surgery for prolapsed intervertebral disc unless arisinf from accident, surgery of varicose veins are not payable for the first two years of operation of the policy.

Treatment for Joint replacement due to degenerative conditions, Age related osteoarthritis and osteporosis are not payable for first four years of operation of the policy.

If these diseases are pre-existing at the time of proposal, will be covered only after four continuous claim free policy years”.



From the above clause it is very clear that if the Opposite Party Company proves that the claim of the Complainant falls within the purview of the above exclusion clause then definitely the Complainant is not entitled for any reimbursement of the claim under the policy.

However, in order to substantiate the case of the Opposite Party, the Opposite Party filed affidavit and contended that the wife of the Complainant Mrs.Irene Gretta Monteiro was admitted to the hospital on 1.10.2007 and she had a history of complaint of swelling in the neck since 9 months which dates back to January 2007. The knowledge of contracting of the disease falls in the first year of the policy i.e., during the policy period 16.9.2006 to 15.9.2007 and relied the discharge summary (i.e., Ex R6).

However, we have gone through the most crucial document in the present case is the discharge summary issued by the City Hospital Mangalore, wherein the clinical details is being reproduced in verbatim as under:

“43 years old female patient come with history of swelling in the neck (front side) since 9 months. No history of pain or tenderness. No sudden increase in size of lump. The final diagnosis reveals that the Complainant’s wife had nodular goiter and the partial thyroidectomy done on 2.10.2007”.

This document stands unchallenged.



On careful scrutiny of the above discharge summary the Complainant’s wife was for the 1st time treated in City Hospital Research and Diagnostic Centre Mangalore, wherein she has gone with the history of swelling in the neck since 9 months. No history of pain or tenderness, no sudden increase in size of lump and she has been diagnosed as nodular goiter and underwent partial thyroidectomy surgery. There is no contra evidence produced on the side of the Opposite Party company to show that the Complainant’s wife had knowledge of her problem earlier that she had suppressed the same and had the medical policy issued.


The above disease diagnosed by the doctor reveals that she had come with the history of swelling in the neck since 9 months and she had no pain or tenderness. The above swelling was diagnosed by the doctor when she gone to the hospital for the 1st time. Only after the final diagnoses the Complainant and his wife came to know that she had nodular goiter and taken treatment in the hospital. We are very surprise to note that how the Opposite Party Company can presume that just because she had a swelling in the neck they cannot assume that the Complainant was aware of the above disease before she treated by the doctor. As we know, some of the swellings in the neck may not cause any symptoms and the patient may not come to know till it reach/show some symptoms.

However, there is no evidence on record to show that the policy holder had ever taken any treatment for the alleged disease prior to her examination in City Hospital Mangalore. A person might be suffering from a disease but he may not take care of that and go to a doctor. Quite often a person, who might be having some problem but he may not be knowing about it and may not go to a doctor. Similarly in the present case, though the insured had swelling on her neck but it may not cause any pain or tenderness she might not have been gone to the doctor. The question always, which has to be determined, is, was the pre-existing disease to the knowledge of the insured.


This knowledge can be attributed if the person takes some or the other treatments from a doctor/hospital. A person who might be having swelling in the neck may not be knowing about it till gets it tested. In the given facts and circumstances of the case, the Complainant’s wife was not either in the immediate past nor at any stage admitted in the hospital or underwent any treatment. There is no evidence that the Complainant or his wife knew about the disease at the time of taking of the insurance policy. Under such circumstances, the claim of any insured should not be and cannot be repudiated by taking a clue or remote reference to any so called disease/ailment from discharge summary of the insured by invoking exclusion clause.

Further we find that the exclusion clause 4.3 is applicable only towards the expenses on treatment and surgeries during the 1st year of the operation of the policy. But in the present case the treatment and surgery for the disease took place on 1.10.2007 i.e., after a year. Further even if we presume that the alleged disease since 9 months let us consider it as January 2007 even on the date of proposal and taking of the policy from 16.9.2006 she had no disease. So the question of suppression of facts or pre-existing or knowledge of the disease does not arise in the present case on hand.

In this connection we would refer the judgment rendered by Delhi State Consumer Disputes Rdressal Commission, New Delhi: III (2005) CPJ 205; in Tirath Dass versus New India Assurance Company Ltd. referred by the counsel for the Complainant dealing with the similar contention. The Hon’ble State Commission held that –

Consumer Protection Act, 1986 – Section 2(1)(g) – Insurance – Mediclaim policy – Repudiation of claim – contention, insured suffering from ailment for last two years – complaint dismissed by Forum – Hence appeal – Disease involved gradual de-generating process and was continuing for about two years prior to actual admission in hospital – Process was so slow and gradual that no ordinary person was supposed or expected to know about the nature of disease – Complainant was not supposed to disclose such problem for which he never hospitalized or operated upon – Opposite Party also negligent in not getting medical check up of insured before issuing policy, liable under policy – Order of Forum set aside.

[Paras 6, 7 and 9]





In another case the Delhi State Consumer Disputes Redressal Commission, New Delhi: III (2009) CPJ 51; in Life Insurance Corporation of India and Another versus Arati Chatterjee held that –

(i) Consumer Protection Act, 1986 – Section 15 – Life Insurance – Suppression of material facts – Death due to cardiac arrest – Claim repudiated – Contention, deceased suffering from diabetes mellitus at time of taking of policy, not disclosed – Contention not acceptable – Unless a person hospitalized/ undergone operation/admitted for treatment for particular disease in rear proximity of obtaining policy, not supposed to disclose about day-to-day problem – Complaint allowed by Forum – Order upheld in appeal.

[Paras 4, 5 and 6]



Further in a case National Consumer Disputes Redressal Commission, New Delhi: III (2009) CPJ 6 (NC); in New India Assurance Company Limited versus Arun Krishan Puri held that –

Consumer Protection Act, 1986 – Section 2(1)(g) and 14(1)(d) – Insurance – Mediclaim policy – Insured operated for coronary heart by-pass surgery – Reimbursement claim denied by insurer – Contention, pre-existing disease suppressed by insured – Onus to prove pre-existing disease at time of taking of policy lies on insurer – Except investigator’s report, no evidence produced in support of concealment of pre-existing disease – Complaint allowed by Forum – Order upheld in appeal – Hence revision - In absence of verification of discharge summary by doctor who treated/issued discharge summary, no reliance can be placed on it – Orders of lower Fora upheld.

[Paras 4, 5]



In another case the Tamilnadu State Consumer Disputes Redressal Commission, Chennai: III (2009) CPJ 61; Radha Palaniappan (Dr.) versus Oriental Insurance Co. Ltd held that –

(i) Consumer Protection Act, 1986 – Section 2(1)(g) – Insurance – Mediclaim – Repudiated – Suppression of material facts regarding pre-existing disease alleged - complaint dismissed by Forum – Hence appeal – complaint wrongly dismissed by Forum – No evidence produced to prove that Complainant had knowledge of her problem earlier, suppressed that at time policy issued – Insurance amount increased by Complainant for purpose of income-tax proved – Order of Forum set aside – Insurer held liable under policy.

[Paras 6, 7 and 10]



Similarly in the present case, there is no evidence produced in support that the Complainant and his wife knew about the disease at the time of obtaining the policy.

In view of the above discussion, we are of the considered opinion that the Opposite Party Company misinterpreted the policy by denying the claim of the insured. There was no material produced on the side of the Opposite Party Company to show that the insured had pre-existing disease. There is absolutely no justification on the part of the Opposite Party Company to say the disease suffered by the insured pre-existed prior to commencement of the policy. In the absence of any cogent/material evidence, we hold that the repudiation made by the Opposite Party Company is not just and valid which amounts to deficiency in service.

As far as medical reimbursement is concerned, the medical bills placed before the FORA proved that the Complainant is entitled Rs.23,424/- towards the medical reimbursement. By considering the facts and circumstances of the case, we have noticed in several cases the National Insurance Company tried the claims in too technical grounds. The Catena of judgments rendered by the Hon’ble National Commission as well as State Commissions are very clear that when the claim under mediclaim policy shall be repudiated. The company should look into the same before repudiating the mediclaim policies. We observe that the company should be generous rather too technical. By considering the above, we award Rs.10,000/- as compensation for the inconvenience and the deficiency in service because the repudiation on too technical grounds to be discountenanced. And further Rs.1,000/- awarded as cost of the litigation expenses. The payment shall be made within 30 days from the date of this order.







6. In the result, we pass the following:


ORDER

The complaint is allowed. Opposite Party i.e., National Insurance Company Limited is hereby directed to pay Rs.23,424/- (twenty three thousand four hundred and twenty four only) towards the medical reimbursement to the Complainant. And further Rs.10,000/- (ten thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

Mr.Sirajuddin,

R/A. Hombelaku House,

Near Halekote Masjid,

Post Ullal, Mangalore Taluk,

Dakshina Kannada District. …….. COMPLAINANT







VERSUS



The National Insurance Co. Ltd.,

First Floor, Emjays Complex,

Opposite to Nethravathi Building,

Mangalore,

Dakshina Kannada District. ……. OPPOSITE PARTY





1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.

The Complainant is the holder of Hospitalization and Domiciliary Hospitalization Policy bearing No.604301/48/06/ 8500001718 which is valid from 28.11.2006 to 28.11.2007. In the above said policy the Complainant and his wife Mrs.Fauzia are insured.

It is submitted that, the Complainant’s wife Mrs.Fauzia suffered from hearing loss, accordingly she admitted to Vinaya Clinic and Nursing Home Mangalore on 19.11.2007. On examination she has a retracted tympanic membrane. On medical advice she had undergone surgery and she was discharged from the hospital on 20.11.2007. The Complainant incurred a sum of Rs.14,785/- towards the medical and hospitalization expenses. It is submitted that the Complainant submitted the claim form along with medical bills and other documents to the Opposite Party. The Opposite Party through its letter dated 7.12.2007 repudiated the claim as per condition No.4.1 of the mediclaim policy.

It is contended that the repudiation made by the Opposite Party Company is not just and valid and hence the above complaint is filed before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party to pay Rs.14,785/- along with interest at 18% p.a. and also pay Rs.5,000/- as compensation and cost of the proceedings.



2. Version notice served to the Opposite Party by RPAD.

Opposite Party appeared through their counsel filed version admitted the policy. But it is contended that Mrs.Fauzia had pre-existing disease of progressive hearing loss at the time of taking the policy for the 1st time and the insured had suppressed the material facts and hence it is contended that the claim of the Complainant falls within the purview of 4.1 of the exclusion clause and hence the claim of the Complainant is repudiated. It is submitted that there is no deficiency whatsoever and denied the bill amount claimed by the Complainant and finally contended that the Complainant is not a consumer and there is no consumer dispute and prayed for dismissal of the complaint.



3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant proves that the Opposite Party has committed deficiency in service?



(ii) If so, whether the Complainant is entitled for the reliefs claimed?













(iii) What order?



4. In support of the complaint, Mr.Sirajuddin (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. One Mrs.Fauzia (CW2) also filed affidavit and answered the interrogatories served on her. Ex C1 to C4 were marked for the Complainant as listed in the annexure. One Sri.Chandrakanth Hedge (RW1), Branch Manager of the Opposite Party filed counter affidavit and answered the interrogatories served on him. One Dr.Y.M. Hegde (RW2) – ENT Surgeon – Summoned witness of the Opposite Party filed affidavit and cross examined by the learned counsel for the Complainant. Ex R1 to R30 were marked for the Opposite Party as listed in the annexure. Both parties have produced notes of arguments.

We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.

Point No.(ii) & (iii): As per the final order.



Reasons



5. Point No. (i) to (iii):

The facts which are not in dispute is that the Complainant is the holder of Hospitalization and Domiciliary Hospitalization Benefit policy bearing No.604301/48/06/ 8500001718, the said policy is valid from 29.11.2006 to 28.11.2007. The said policy covers the Complainant and his wife Mrs.Fauzia (as per Ex C1).

Now the grievances of the Complainant are that his wife Mrs.Fauzia suffered hearing loss, she was admitted to Vinaya Clinic and Nursing Home Mangalore on 19.11.2007, she has been diagnosed as a retracted tympanic membrane. As per the medical advice she had undergone surgery and discharged on 20.11.2007 and spent Rs.14,785/-.


After the discharge the Complainant submitted the claim form before the Opposite Party and the Opposite Party Company repudiated the claim stating that the Companies penal doctor opined that the above disease revealed that the progressive hearing loss was present at the time of taking the policy and the claim was repudiated as per condition No.4.1 of the mediclaim policy (as per Ex C25). It is contended that the repudiation made by the Opposite Party is arbitrary and hence this complaint.

On the contrary, the Opposite Party Company contended that the claim of the Complainant falls within the purview of clause 4.1 of the policy and contended that the repudiation is just and valid.

However, it is worthwhile to reproduce clause 4.1 of the Hospitalization and Domiciliary Hospitalization Benefit Policy for convenience:

The Company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any person in connection with or in respect of:



4.1. “All diseases/injuries which are pre-existing when the cover incepts for the first time. However, those diseases will be covered after four continuous claim free policy years. For the purpose of applying this condition, the period of cover under Mediclaim policy taken from National Insurance Company only will be considered”.

This exclusion will also apply to any complications arising from pre-existing ailment/ disease/injuries. Such complications will be considered as part of the pre-existing health condition or disease. To illustrate, if a person is suffering from hypertension or diabetes or both hypertension and diabetes at the time of taking the policy, then policy shall be subject to following exclusions. ………………



From the above clause it is made us clear that if the Opposite Party Company proves that the disease is pre-existing at the time of obtaining the policy then definitely the Complainant is not entitled to medical reimbursement under the policy.

However in the present case, the entire burden lies upon the Opposite Party to show that the disease suffered by the Complainant’s wife is pre-existing disease. In order to prove the case of the Complainant, the Complainant filed evidence by way of affidavit and produced Ex C1 to C4. The Opposite Party Company also led evidence of RW1 and RW2 and produced Ex R1 to R30.

In the instant case, the Complainant admittedly obtained the Hospitalization and Domiciliary Hospitalization Benefit Policy from the Opposite Party Company and the said policy is valid from 29.11.2006 to 28.11.2007. The hospital record i.e., the discharge summary filed by the Opposite Party reveals that on 19.11.2007 she was admitted to Vinaya Clinic and Nursing Home Mangalore and on examination she had retracted tympanic membrane. As per the advice of the doctor she has undergone surgery and discharged on 20.11.2007. On careful scrutiny of the history of the patient, it showed that the Complainant’s wife came to the history of progressive hearing loss in her right ear since six months. The examination revealed ‘postero- superior …….of the right tympanic membrane causing thinking and …… ….. of the long process of the incus’. From the above discharge summary as well as other documents there is no evidence produced in support that the Complainant knew about the disease at the time of taking of the policy. In other words, there is no evidence on the record to show that the Complainant’s wife had ever taken any treatment for the alleged disease prior to her examination in Vinaya Clinic and Nursing Home, Mangalore.

And further we find that a person might be suffering from a disease but he may not take care of that and go to a doctor. Quite often a person who might be having some problem with the problem of hearing loss, he or she may not be knowing about it and may not go to a doctor. The question always, which has to be determined, is, was the pre-existing disease to the knowledge of the insured. This knowledge can be attributed if the person takes some or the other treatment from a doctor/hospital. A person who might be having hearing loss may not be knowing about it till he or she gets it tested.

In the present case, there is no evidence that the Complainant knew about the disease at the time of taking of the insurance policy. The Opposite Party repudiated the claim basing on the penal doctor’s opinion i.e., progressive hearing loss of the right ear. That word cannot be taken into consideration that the disease was pre-existing. As we discussed herein above some times the insured may not be aware until and unless the problem caused to her is severe.


Apart from the above, it is proved that the proposal form accepted by the insured on 28.11.2005 (as per Ex R28). The above said contract was renewed till 28.11.2007. It is further proved that on 19.11.2007 for the 1st time it was medically diagnosed by the doctor that the insured was suffering from impaired hearing for retraction of the tympanic membrane in her right ear since July 2007 and thereby she underwent surgery of tympanoplasty at Vinaya Clinic and was discharged on 20.11.2007. Before repudiating the claim the National Insurance Company shall take into consideration that the insured was pre-existing disease prior to availing the policy in the year 2005.


But in the instant case the company repudiated the claim on the basis of penal doctor opinion given by Dr.Y.M. Hegde citing that the ailment suffered by insured was pre-existing at the time of availing the policy. However, the penal doctor as claimed by the Opposite Party Company has been examined before the FORA, wherein he has clearly stated that the above said doctor not treated the patient personally and he has deposed on the basis of the documents produced by the Opposite Party Company. There is no records except the discharge summary that she had progressive hearing loss of the right ear. Just because she had the problem one cannot presume that the hearing loss is gradually increasing or decreasing.


In the repetition, we would like to highlight that sometimes the insured may not be aware the consequences of the ailments until and unless it has been aggravated. Section 45 of the Insurance Act made very clear that it is not sufficient if the Opposite Party Company proves that the insured suppressed the previous ailments but it is to be proved that the above suppression has made deliberately or willful. In the present case, the insured herself is not aware of the complications of the ailment nor she had taken any treatment before taking treatment in Vinaya Clinic and Nursing Home, Mangalore. In the absence of the same, the Insurance Company cannot contend that the insured had pre-existing disease.

In view of the above discussion, it is proved beyond doubt that the repudiation made by the National Insurance Company is without any basis which amounts to deficiency in service.

As far as medical reimbursement is concerned, the Complainant produced medical bills worth Rs.14,785/- (as per Ex R2). By considering the above, we hereby direct the Opposite Party i.e., National Insurance Company Limited to pay Rs.14,785/- (Rupees fourteen thousand seven hundred and eighty five only) being the claim amount under the Hospitalization and Domiciliary Hospitalization Policy to the Complainant. And further Rs.5,000/- (Rupees five thousand only) awarded as compensation for the inconvenience and harassment and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.







6. In the result, we pass the following:


ORDER

The complaint is allowed. Opposite Party i.e., National Insurance Company Limited is hereby directed to pay Rs.14,785/- (Rupees fourteen thousand seven hundred and eighty five only) being the claim amount under the Hospitalization and Domiciliary Hospitalization Policy to the Complainant. And further Rs.5,000/- (Rupees five thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

A) Sri Saurish Chakraborty President.



B) Smt.Swapna Kar Member.



C) Sri Swaraj Kumar Biswas Member.





Md. Latifur Rahaman,

Son of Late Md. Yusuf ,

Jharbari, Post office – Jharbari,

P.S.- Goalpokhar, Uttar Dinajpur. Complainant.



versus



National Insurance Company Limited,

Raiganj Branch, Mohanbati,

P.O. & P.S.-Raiganj , Uttar Dinajpur. Opposite Parties.





Judgment

Date: 09.09.2009.



The fact in short is that the Complainant purchased two female buffalos each for Rs.16,000.00 with the financial assistance of Raiganj Co-operative Agricultural Rural Development Bank Limited. Both the buffalos were insured with the Opposite Party, National Insurance Company Limited through the bank for the period of 25.11.2003 to 24.11.2004. Both the animals were marked by the Opposite Party by ear tag vide number 52386 and 52378 and the amount insured was Rs.16,000.00 for each buffalo.



The next case of the Complainant is that while the insurance policy was subsisting, one of the buffalos bearing ear tag number 52386 died on 11.09.2004 and veterinary surgeon conducted post mortem over the dead-body of the cattle and opine finally that the animal died due to cardio vascular failure. On 11.10.2004 the Complainant claimed the insured amount against the dead cattle through the bank. But in the mean time ear tag of the dead cattle was lost during post mortem. The Complainant lodged a G.D. of the loss of the relevant tag with the Officer-in-charge, Goalpokhar Police Station. But the Opposite Party/ Insurer did not discharge the claim in spite of compliances of all formalities from the end of the Complainant. The only reason given for repudiating the claim by the Insurance Company was that the Complainant has failed to surrender the ear tag. Thereafter the Complainant issued one notice through his pleader, but in vein.



It appears from the next case of the Complainant that a complaint was filed before this Forum vide Consumer Complaint number CC-36/2006 against the Opposite Parties. But the case was finally dismissed for default by this Forum on 08.06.2007. Against the said order he filed an appeal before the Honorable State Consumer Disputes Redressal Commission, West Bengal and the Honorable Commission disposed of the appeal on 06.03.2009 setting aside the impugned order and directing this Forum to rehear and decide the case on merit as per law.



Opposite Party/ Insurer contested the complaint by filing one written version, the contents of which are mainly based on the non-compliances of certain rules and regulations incorporated in the policy in question. The Opposite Party admits that the animal was insured with the Opposite Party/ Insurer but claimant informed the death of the animal to the Insurer after laps of 37 days. The post mortem of the dead animal was held after laps of many days, which in the opinion of the Insurer may be fabricated or manufactured. The further contention of the Opposite Party/ Insurer is that the Complainant failed to submit the ear tag along with claim form, which is in violation of the additional policy condition, which speaks “No Tag No Claim”. On all these ground the Opposite Party/ Insurer submits that the complaint may be dismissed with cost.



Decisions with reasons:



Both sides have filed certain documents in support of their respective cases.



Complainant has filed his evidence in affidavit besides he also examined another witness, who happens to be a Veterinary Surgeon and who conducted the post mortem over the dead body of the cattle. Complainant and the Pw-2 have been cross-examined thoroughly by the Opposite Party/ Insurer. It is admitted position that two buffalos of the Complainant were insured with the Opposite Party/ Insurer, each for Rs.16,000.00. Complainant’s case is that one of the cattle having particular tag number allotted by the Opposite Party/ Insurer, died due to Cardio Vascular Failure. Pw-2 as post mortem doctor has also supported the cause of the death of the cattle and also put his opinion accordingly in his report, which is a part of the form of the certificate to be granted by the veterinary surgeon regarding live stock and the cattle claim.



Now, the disputed point, we find upon perusing of the case of the parties is that whether the buffalo died of the said disease, had any identification mark that is the tag number on the date of its death and whether the reference to the tag number coming from the evidence on record is sufficient to identify the insured cattle.


It is argued on behalf of the Opposite Party/ Insurer that the Insurance Company is not able to discharge the claim of the Complainant as the tag number of the cattle insured is missing. In the support, Ld. Lawyer for the Opposite Party referred to a decision reported in Consumer Protection Reporter 2009 (2) at page 25/26, this Forum upon taking a serious consideration of the principles laid down in the decision referred, is bound to take the view that facts of the case referred to in the decision is not at all same of the present one. We do further find that the decision has been given by the Honorable State Commission, Uttar Pradesh. We also do find a reference of a decision of the Honorable Supreme Court of India. Honorable Supreme Court has rejected the claim application basing on the principle “No Tag No Claim”.


Why the Supreme Court has rejected the plea of the claimant was further based on the observation that the veterinary doctor, who conducted the post mortem, found no attachment of tag with the ear of the cattle and made endorsement thereof in the post mortem report. But in our case the facts are otherwise. Here, the post mortem report shows that the post mortem doctor, who conducted the post mortem found not only the tag number with the buffalo but also made endorsement thereof in the post mortem report. So, in conclusion we respectfully differ to the contents of arguments advanced by the Ld. Lawyer for the Opposite Party/ Insurer.


In view of this Forum, there is sufficient materials in evidence produced in this case to hold that the dead she-buffalo is identical, which was insured with the Opposite Party/ Insurer. So, there is no iota of doubt to hold that the she-buffalo, which died on 11.09.2004 and the buffalo, which was insured with the Opposite Party/ Insurer was identical as such there is no reason we do find that Insurance Company should repudiate the claim of the Complainant. Rather we hold that the Opposite Party/ Insurer is liable to discharge the claim of the Complainant.



Fees paid are correct.



Hence, ordered,



That the complaint is allowed on contest against the Opposite Party, National Insurance Company Limited.



The Complainant do get an award of Rs.16,000.00 (sixteen thousand) only against the Opposite Party. He further do get an order of Rs.2,500.00 (rupees two thousand five hundred) only as compensation for harassment and mental pain and finally he do get an order of Rs.1,000.00 (rupees one thousand) only as litigation cost.



Opposite Party/ Insurance Company is directed to pay the entire amount that is Rs.19,500.00 (rupees nineteen thousand five hundred) only within one month from the date of this final order in default the Complainant will be at liberty to claim interest on the entire amount at the rate of 6.5 percent per annum till full satisfaction.



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

1. Bhim Lal son of Sh. Paras Ram,

2. Rekha Devi w/o Sh. Bhim Lal,

Both L.Rs. of the deceased original complainant Sh. Ajay Kumar, son of Sh. Bhim Lal, resident of VPO Chetru, Tehsil Dharamshala, District Kangra (HP)

Complainants

Versus



National Insurance Company Ltd. Through its Branch Manager Branch at Kotwali Bazar Dharamshala, District Kangra (HP)



Opposite party





ORDER/



It is pertinent to mention here that originally Sh. Ajay Kumar, complainant, had filed the present complaint, through his father/attorney Sh. Bhim Lal, before this Forum on 26.9.2007. In the original complaint, it was mentioned that the complaint is being filed by Sh. Bhim Lal, through Special Power of Attorney of Sh.Ajay Kumar, but thereafter, an application was moved for amendment, and accordingly, the application was allowed. It was amended that the complaint is being filed by Sh. Ajay Kumar, through his Special Attorney Sh. Bhim Lal. However, the original complainant, Sh. Ajay Kumar, had died, during the pendency of this complaint, on 7.8.2008. His parents were brought on record, as his legal heirs vide order dated 4.11.2008, of this Forum.

2. The brief facts of the complaint, as alleged, are that the original complainant Sh. Ajay Kumar, had purchased one Tata Sumo, bearing registration No.HP-39-4079, for earning his livelihood, and had got it insured with the opposite party, for a sum of Rs.2,40,000/-, vide Policy No.2005/610000518, valid with effect from 23.4.2005 upto 22.4.2006. However, this vehicle had met with an accident on 6.2.2006. The opposite party was informed accordingly, by the complainant about this accident. The opposite party had deputed the Surveyor Sh. Ashok Kumar Sharma, who had visited the spot and had inspected the vehicle, and had declared this vehicle to be of total loss.


The vehicle was taken to the workshop by the complainant. The estimate for repairs, of this vehicle, was assessed to be Rs.2,52,371/-. The claim papers were submitted by the complainant with the opposite party. It is alleged by the complainant that the total loss of the vehicle was declared twice, but the opposite party did not settle his claim, and his claim was repudiated by the opposite party vide their letter dated 7.11.2006. A legal notice dated 26.6.2007, was also served upon the opposite party, but they did not reply the notice. Hence, the complainant has claimed the relief of Rs.2,40,000/-(the insured value of the vehicle), alongwith interest @ 12% per annum from the date of the accident, till it’s final payment. The complainant has also claimed Rs.20,000/-, as compensation, for his mental agony, and harassment, and Rs.8500/-, as litigation charges, and has also claimed Rs.10,000/-, for deficiency in service on the part of the opposite party.

3. The opposite party has contested this complaint, by filing their reply on 4.3.2008. The opposite party, in the original reply, had contended that neither the complainant was the owner of the vehicle, nor he had got it insured with them. They had contended that the complainant Sh. Ajay Kumar, was not the owner of the vehicle. Although, they had deputed the Surveyor, but no claim was filed by the complainant, and there was no deficiency in service on their part. However, in the amended reply filed by the opposite party on 4.12.2008, they have contended that neither the complaint is maintainable, nor the complainant has got any cause of action and locus standi to file this complaint. The complainant is not a consumer, and a false and vexatious complaint has been filed by him. It is pre-mature. This Forum does not have the jurisdiction to entertain this complaint. The complainant has suppressed the material facts.

It is alleged that they had deputed Engineer Sh.Ashok Kumar Sharma, as Surveyor to inspect the vehicle, who had visited the spot on 7.2.2006 and had submitted his report on 11.4.2006. It is alleged by the opposite party that they had requested vide letters dated 4.5.06, 26.5.06, 9.6.2006, and 7.7.2006, to the complainant to submit the required documents, like copy of the F.I.R, driving licence, estimate of loss, and name of the workshop, for repairs of the vehicle, but no heed was paid by the complainant to their request. So, they had no option, except to repudiate his claim, vide their letter dated 10.8.2006. It is also contended by the opposite party, that the complainant with an estimate dated 13.9.2006, had again approached them on 20.9.2006, so again, they had deputed another Surveyor Sh. Arun Udhey Singh, to assess the loss of the vehicle. This new Surveyor Sh. Arun Udhey Singh, had thoroughly investigated the loss by visiting the spot and inspecting the vehicle, and had assessed the loss to the tune of Rs.1,44,000/-, subject to the terms and conditions of the Insurance Policy, on net of salvage basis, vide his report dated 29.11.2006.

After receiving the survey report, and other documents, it was revealed that the vehicle was insured for a sum of Rs.2,40,000/-, being Insured Declared Value (hereinafter referred to as IDV), and it was found that the Surveyor had wrongly recommended the assessed loss to the tune of Rs.1,44,000/-, on net of salvage basis, because as per the provisions of GR-8, of the “Indian Motor Tariff”, a vehicle will be considered to be a constructive total loss, where the aggregate cost of retrieval and/or repairs of the vehicle, subject to the terms and conditions of the Insurance Policy, exceeds 75% of IDV. In the present case, the Surveyor had assessed the aggregate cost of the repairs, to the tune of Rs.1,29,152/-. Since, the assessment made on repairs basis, had not exceeded 75% of the IDV, so as per GR-8 of the Indian Motor Tariff, the claim could not be settled on total loss basis, as recommended by the Surveyor.

It is contended by the opposite party that they vide their letter dated 26.4.2007, had informed the complainant to get his vehicle repaired, as per the assessment on repair basis, but the complainant did not get repair his vehicle. So, the claim could not be settled. It is contended by the opposite party that the present complaint is pre-mature, and there is no deficiency in service on their part. So, the present complaint deserves dismissal.

4. A rejoinder has been filed in this case on 3.12.2008, in which it is contended that the vehicle in question was the only source of income of Sh.Ajay Kumar, to earn his livelihood. After the accident, he had got bed ridden, and later-on died. No money was available with the complainant Sh. Ajay Kumar to spend on this vehicle. Due to limited sources, he had spent the money on his health. So, he could not spend any money on this vehicle. It is contended that the opposite party had acted in a very mechanical, and in-human manner, knowing the situation of the deceased, and his family. It is contended on behalf of the complainant that the reply of the opposite party is nothing, but an excuse for not paying his claim.

5. We have considered the arguments of the learned counsel for the parties, and we have also carefully gone through the case file, facts and evidence on the record.

6. Ex.C-1 to C-3 , are the affidavits of the complainant Sh. Bhim Lal, Smt. Rekha Devi, Sh. Shiri Dhar, respectively. Annexure CA, is the photo copy of the Insurance Cover Note. Annexure CB, is the photo copy of estimate dated 13.9.2006 of the vehicle in question, to the tune of Rs.2,52,371/-. Annexure CC is the photo copy of the letter dated 7.11.2006, written by the original complainant Sh. Ajay Kumar to the opposite party. Annexure CD, is the copy of the notice sent to the opposite party.

7. On the other hand, Ex.OPW-1, is the affidavit of Sh. Parkash Chand, Senior Manager of the opposite party. Ex.OPW-2, is the affidavit of Sh. Ashok Kumar Sharma, who had visited the spot on 7.2.2006, and gave his report on 11.4.2006. Ex.OPW-3, is the affidavit of the Er.Arun Udhay Singh, Surveyor and Loss Assessor, in which he had given the estimate of loss to the tune of Rs.1,44,000/-, on net of salvage basis, and Rs.1,29,152/-, on the repair basis, vide his detailed report dated 29.11.2006. Annexure OP-1, is the copy of the certificate of Insurance. Annexure OP-2, is the copy of the letter dated 13.3.2006, given by the Surveyor Sh. Ashok Kumar Sharma, to Sh. Sandeep Thakur, the original owner of the vehicle in question i.e. HP-39-4079. Annexure OP-3 is the preliminary report dated 11.4.2006, given by the Surveyor/ Engineer Sh.Ashok Kumar Sharma. Annexure OP-4, is the copy of the letter dated 4.5.06, given by the opposite party to the original complainant Sh.Ajay Kumar.


However, Annexures OP-5 to OP-8, are the reminders dated 26.5.06 9.6.2006, 7.7.2006 and 10.8.2006 sent by the opposite party to the complainant. Annexure OP-9 is the copy of letter dated 20.9.06, given by the original complainant Sh. Ajay Kumar to the opposite party. Annexure OP-11, is the detailed report dated 29.11.2006 given by the Surveyor/Er.Arun Udhey Singh. Annexure OP-12, is the photo copy of letter dated 26.4.2007, issued by the opposite party to the original complainant Sh. Ajay Kumar, in which it has been mentioned that since the aggregate costs of the repairs of the vehicle does not exceed 75% of the Insured Declared Value(IDV), so as per GR-8, of the “Indian Motor Tariff”, the claim could not be settled on net of salvage basis, and the opposite party had requested/asked the complainant for getting the repairs of the vehicle. Annexure OP-2 is copy of registration certificate of the vehicle, which shows the fitness of the vehicle upto 21.4.2017, and Sh. Ajay Kumar to be the owner of the vehicle, in question.

8. The Insurance and the accident of the vehicle, are admitted by both the parties. From the perusal of the file, it is revealed out that the opposite party has been changing it’s stand before the complainant when he(complainant) had submitted the estimate of the repairs of his vehicle to the tune of Rs.2,52,371/-.


As per the report of Engineer Sh. Ashok Sharma, Surveyor and Loss-Assessor, the vehicle was got inspected, the loss was assessed, but the opposite party vide Annexure OP-4( letter dated 4.5.06), written by the opposite party to the original complainant Sh. Ajay Kumar, had demanded only three documents i.e. copy of the F.I.R.(Police report), if lodged, copy of the driving licence for verification, and copy of the estimated loss, and name of workshop where the vehicle has to be repaired, but the fact remains that despite detailed report dated 29.11.2006, of the Engineer Sh. Arun Udey Singh, Surveyor and Loss Assessor, and the fact that the original complainant Sh. Ajay Kumar was ill, unable to move, and totally bed ridden, but the opposite party did not settle his claim.


It has come in the pleadings, and evidence that the original complainant Sh. Ajay Kumar was not having the money to get repaired his vehicle, but the opposite party did not assure him, and ask him to pay the amount of the repairs of the vehicle, and they did not settle his claim. So, it clearly implies that the opposite party was deficient in rendering proper services to the original complainant Sh. Ajay Kumar. Therefore, the complaint deserves to be allowed partly. Due to deficiency in service, the original complainant had also suffered mental agony, and harassment, so we assess Rs.10,000/-, as compensation for his mental agony and harassment. We also assess Rs.2000/-, as litigation charges.

9. No other point has been argued or urged before us.

10. In view of the discussion made hereinabove, the complaint is partly allowed. We order to the opposite party to pay Rs.1, 44,000/-(the assessment made by the independent Surveyor deputed by the opposite party), to the complainants alongwith interest @ 9% per annum from the date of complaint, till it’s final payment. We also direct to the opposite party to pay the compensation to the complainants to the tune of Rs.10000/-, for his mental agony, and harassment, and litigation costs to the tune of Rs.2000/-, which will be paid by the opposite party, within 30 days, after the receipt of copy of this order. The copy of this order be sent to the parties, free of costs, by post, and the file after it’s due completion be consigned to the record-room.

Meera Devi wife of Sh. M.K. Sharma resident of village and Post Office Bhambla, Tehsil Sarkaghat, District Mandi, H.P.



…Complainant





V/S



National Insurance company Ltd . Moti Bazar, Mandi, H.P. through its Branch Manager.



…..Opposite party








ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he is owner in possession of a piece of land comprised in Khasra No. 265/3 situate in Mauja Bhambla , Tehsil Sarkaghat District Mandi, H.P. The complainant averred that he constructed a pucca house on the above land and the said house was insured with the opposite party through H.P. State Co. Operative Bank Ltd Bhambla vide policy No.421201/11/07/3150268 with effect from 13-6-2007. On 12-8-2007 due to massive floods , the said house of the complainant was totally damaged and the opposite party was informed accordingly. Necessary documents were submitted to the opposite party alongwith the claim form and thereafter despite many verbal requests , claim was not settled. The complainant served the opposite party with legal notice Annexure A-1 dated 4-4-2008 and then the opposite party repudiated the claim vide letter dated 29-9-2008 as per Annexure A-2. The complainant further averred that the land described above earlier belonged to one Smt Vidya Devi who had sold this land to the complainant through her power of attorney holder namely Sh. Pyar Chand son of Sh. Roshan Lal .


The complainant averred that after ascertaining this land from each and every angle purchased above land from Smt. Vidya Devi through her power of attorney holder vide sale deed dated 13-2-2006 registered on 3-5-2007 which is Annexure A-3 and jamabandi is A-4. The complainant had averred that the patwari of patwar circle Bhambla had certified that the house of the complainant had been washed in floods on 12-8-2007 but the opposite party had completely ignored this valuable document . The complainant alleged that the claim has been repudiated by the opposite party on illegal ground .With these averments , the complainant had sought a direction to the opposite party to pay Rs.3,00,000/- to him alongwith interest at the rate of 12% per annum from 12-8-2007 till payment and also to pay Rs.1,00,000/- as compensation apart from costs of litigation claimed at Rs.10,000/-.

2 The opposite party resisted the complaint by filing reply in which preliminary objections have been raised that the present complaint is not maintainable in view of un co-operative behaviour of the complainant by non supplying the documents and as such the claim was closed by repudiating the same , that the claim has been properly processed and the complainant has been duly informed regarding the same and vide letter dated 3-9-2008 the complainant was ready to accept the claim assessed but due to non supply of requisite documents , vide letter dated 26-5-2008, claim was closed as no claim, that independent surveyor has assessed the loss at Rs.57,449/- and a sum of Rs.50,000/- is deducted from this amount as complainant had received Rs.50,000/- from the government and the opposite party has communicated the complainant to be paid the remaining amount of Rs.7449/- subject to pre receipt voucher which was never sent. On merits , it has been averred that the complainant had been duly informed regarding the indemnity quantified at Rs.7449/- to which she had agreed to receive but due to non submission of pre receipt voucher , the claim was closed as No claim . The opposite party had prayed for dismissal of the complaint

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

4. We have heard the ld. counsel for the parties and have also gone through the entire record. The case of the complainant is that she had constructed a pucca house in her land and the same was insured with the opposite party with effect from 13-6-2007. The further case of the complainant is that on 12-8-2007 due to massive flood , the insured house of the complainant got totally damaged and opposite party was informed accordingly and all the relevant documents i.e. first information report , revenue papers , revenue report of flood estimate and bills of construction material were submitted but the opposite party has not settled the claim despite various requests. .


The complainant had claimed Rs.3,00,000/- as compensation The stand of the opposite party is that the claim of the complainant was got assessed and she had given her consent vide letter dated 3-9-2008( Annexure O-1) vide which she was ready to accept the claim as assessed and intimated by the opposite party .Further case of the opposite party is that the claim has been settled by the opposite party at Rs.57,449/- on the basis of surveyor’s report and Rs,50,000/- has been deducted as the same has been received by the complainant from the Government and on the basis of no double indemnity , remaining amount of Rs.7449/- is to be paid to the complainant that too subject to pre-receipt voucher which was never sent by her and the claim was closed as no claim.

5 After scrutiny of the record , two points arise for determination. The first one is that whether the complainant has given the consent letter Annexure O-1 pressed into service by the opposite party or not . The complainant in the rejoinder has simply denied this fact and has not specifically averred as to whether she had not sent letter Annexure O-1 dated 3-9-2008 to the opposite party accepting thereby the claim as assessed by the opposite party . A bare perusal of the letter Annexure O-1 reflects that the same has been signed by the complainant herself .


Had this document not been signed by the complainant she should have filed an application before this forum for sending Annexure O-1 for comparing her signatures from Government Examiner of Questioned Documents but this had not been done for the reason best known to her. Therefore, it can safely be held that the letter dated 3-9-2008 Annexure O-1 has been sent by the complainant to the opposite party. The complainant has claimed Rs.3,00,000/- on account of damage caused to her insured house and placed on record photocopy of certificate issued by Patwari /Naib Tehsildar but this does not reflect that the loss suffered by the complainant was to the tune of Rs.3,00.000/-.


The opposite party had adduced in evidence the final surveyor report dated 15-3-2008 Annexure O-2 prepared by Sh. Mohinder K. Sharma who had recommended the liability in the sum of Rs.57,499/- subject to policy terms and conditions and any documental requirement by the insurer. The report is supported by Abstract of cost .The complainant has not filed any evidence contrary to the report of the surveyor that she had suffered loss of Rs.3,00,000/- .Therefore , we have no hesitation to hold that the loss sustained by the complainant in the flood is to the tune of Rs.57,499/- as recommended by the surveyor vide his report Annexure O-2 and complainant had agreed to accept the same as per Annexure O-1 sent by her to the opposite party.

6 The second point which is left for determination by this Forum is as to whether the opposite party was justified in deducting Rs.50,000/- from Rs.57,499/- i.e. the claim assessed by the Surveyor on the ground that Rs.50,000/- had been given to the complainant by The District Administration and is ready to pay the balance amount subject to execution of pre- receipt voucher .


The answer to this poser in all fairness as well as in the interest of justice would be in the negative because the relief given by the District Administration has got nothing to do with the insurance claim of the complainant. The complainant had paid premium for the insurance of her house and the there is no clause in the policy that if the insured is given any relief by the Administration, the same had to be deducted from the amount assessed/ recommended by the surveyor . The act has been enacted for the betterment of the poor people . The opposite party should not have denied the claim of the complainant on such a flimsy ground . Non payment of the amount of insurance i.e.57,449/- by the opposite party to the complainant is certainly deficiency in service .

7 In the light of above discussion, the complaint is allowed and opposite party is directed to pay Rs57449/-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 is also directed to pay Rs.5000 /- on account of compensation for harassment suffered by her and also to pay a sum of Rs.1,500/- as costs of litigation.

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.

Padma Devi wife of Sh. Het Ram Saini resident of village Aleo , Tehsil Manali, District Kullu, H.P. at present Resident Sihan, Post Office Gagal , Tehsil Sadar, District Mandi, H.P.



…Complainant

Vs



1. The Manager, National Insurance Company, Moti Bazar, Mandi Town , H.P.

2. M/S Megma Shrachi Finance Ltd Branch Office at SCO 10 SEC-26-A Chandigarh through its Branch Manager.





…..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 is registered owner of vehicle Tipper No. HP-66-1182 which was insured with the opposite party No.1 by the opposite party No.2 on behalf of the complainant under comprehensive insurance policy annexure C-2 for a period from 7-7-2007 to 6-7-2008 in the sum of Rs. 9,81,518/-. .During the currency of the insurance policy, said vehicle met with an accident on 29-10-2007 at Fisu in Tehsil Kumarsain while it was being driven by duly licensed driver Sh. Goverdhan Lal .


The matter was reported to the opposite parties who deputed their surveyor Sh.Raghuvir Singh and after inspection he advised to get the estimate of repair of vehicle including body shell and on his direction estimate for repair of vehicle was taken from authorized Tata Service station M/S Malhotra Motors Gutkar who issued estimate for repair in the sum of Rs.9.34,572/- and estimate of repair of body shell was taken from M/S Vishwakarma Truck Body Maker who had issued estimate in the sum of Rs.1,45,000/-. In all a sum of Rs.10,79,572/- was required for repair of the vehicle .Thereafter, the vehicle was again inspected by the surveyor and entire documents including the estimates in original were submitted to surveyor who told the complainant that he was going to recommend the loss of the vehicle on total loss basis .


The complainant averred that the vehicle is new one and accident had occurred within three months of registration. The complainant further alleged that the vehicle was financed by the opposite party No.2 . The complainant alleged that the opposite parties assured to settle the claim in full sum assured in the sum of Rs.9,81,518, but failed to settle the same within three months which is deficiency in service on their part. With these averments , the complainant had sought a direction to the opposite parties to pay Rs.9,81,518 /- as insurance claim with interest at the rate of 7.37 % per annum with effect from 29-10-2007 and a sum of Rs.50,000/- has been claimed on account of harassment apart from cost of litigation.

2. The opposite party No.1 has admitted that the vehicle was insured with it . The opposite party No.1 also admitted that it had deputed Sh. M.L. Mehta , Surveyor and Loss Assessor with whom the complainant did not co-operate . It has further been averred that the complainant after survey report ,was to repair the vehicle and then final survey had to be done but the complainant did not co-operate the surveyor and insisting on total loss basis which was refused by the opposite party No.1. It has further been contended that the payment was to be made after the repair was done . Rest of the contents of the complaint were denied . The opposite party No.1 had prayed for dismissal of the complaint qua it.

3. The opposite party No.2 had filed reply wherein it has been pleaded in preliminary that the complaint is not maintainable against it and that the complaint is false The opposite party No.2 pleaded that if the complainant is found entitled to any amount of vehicle from the opposite party No.1, the same be released in its favour being financer of the vehicle .The opposite party No.2 prayed for dismissal of the complaint qua it .

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

5. We have heard the ld. counsel for the parties and have carefully gone through the entire record. Be it stated that the insurance of the vehicle in question and its accident has not been disputed by the opposite party. The only ground on which the claim of the complainant has been repudiated is that the insurance company deputed its surveyor and after surveyor’s report the complainant was to repair his vehicle but the complainant did not co-operate with him and insisted him to give total loss report which he refused to oblige and since the complainant neither repaired the vehicle nor co-operated with the surveyor , insurance company is not liable to pay any amount to the complainant.


However, in our opinion , the insurance company cannot be said to be justified in denying its liability to indemnify the complainant on such a flimsy ground particularly in view of the fact that the vehicle in question was duly insured with it . The opposite party has adduced in evidence Final Motor Survey report of Sh. M.L. Mehta and Company Annexure RA which is dated 31-3-2008 wherein it has assessed the loss at Rs.5,46,851.50 subject to terms and conditions of the policy. It is significant to mention here that during the pendency of the complaint , on the application of the complainant this Forum appointed Sh. Mohinder K Sharma registered surveyor and Loss assessor as Local Commissioner to inspect the vehicle and to report as to whether the same was repairable or had sustained total loss .


The Local Commissioner vide his report dated 15-9-2008 had opined that the vehicle could easily be repaired as per the amount recommended by Sh. M.L. Mehta and Company. In these circumstances it was incumbent upon the complainant to prove that the vehicle had sustained total loss but he has failed to do so. The Surveyor report is an important document and it cannot be brushed aside without any sufficient reason. The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kirana Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor Annexure RA and in view of the same , the complainant is held entitled to a sum of Rs. 5,46,851/-on account of damaged caused to the vehicle .

6 The complainant had claimed Rs.50, 000/- as compensation besides costs of litigation . As discussed above, since the claim of the complainant had been repudiated illegally by the opposite party and he had suffered harassment, therefore, in such circumstances , an amount of Rs.5,000/- will be sufficient to meet the ends of justice on this score and

Rs.2500 /- as cost of litigation.

7 The ld. counsel for the opposite party No.2 submitted that since the vehicle is financed by the opposite party No.2, therefore, if the complainant is found entitled to any amount from the insurance company, then it be directed to deposit the amount directly with the opposite party No.2 in the loan account of the complainant. The ld. counsel for the complainant had no objection to the request made by the ld. counsel for the opposite party No.2 and stated that the amount awarded be deposited in the loan account of the complainant with the opposite party No.2.

8 In the light of above discussion, the complaint is allowed and the opposite party No.1 is directed to deposit Rs.5,46,851/- alongwith interest at the rate of 7.37 % per annum from the date of filing of this complaint till realization in the loan account of the complainant with the opposite party No.2 being the financer of the vehicle . Apart from this , the opposite party No.1 is also directed to deposit Rs.5000 /- on account of harassment suffered by the complainant due to deficiency in service and a sum of Rs.2,000/- as cost of litigation.

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

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

Shri Parkash Chand S/O Shri Hazoori Ram,

resident of village Nanowal Taprian,

PO Khera, Tehsil Nalagarh, District Solan H.P.



… Complainant

Versus



The National Insurance Company Limited,

National Highway, Sector-2 near Sheetla Mata Mandir, Parwanoo, Tehsil Kasauli, District Solan HP

Through its Branch Manager.

…Opposite Party.






O R D E R:




The 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 he is owner of vehicle bearing registration No.HP-25-1185, which was insured with the OP-Company, commencing from 18.12.2003 to 17.12.2004. It is averred that the aforesaid vehicle met with an accident, on, 20.09.2004, and suffered extensive damage.


The complainant, further, proceeded to aver, that, the aforesaid incident was brought to the notice of the OP-Company, as well, as, to the Police, and thereafter, insurance claim was also lodged with the OP-Company, for an amount of Rs.1.25 lacs. The OP-Company, instead of settling the insurance claim, 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 OPs-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, inasmuch, as, lack of deficiency in service, estoppel, and limitation. On merits, it is contended that the complainant has disclosed to the police that one Raju was driver of the afflicted vehicle, who was not possessed of a valid and effective driving licence, hence, their being breach of terms and conditions, of the insurance policy, the OP-Company, was well within its right, to repudiate the claim of the complainant. As such, 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 during the currency of the insurance policy, purchased by him from the OP-Company, met with an accident, on, 20.09.2004. An FIR in relation to the accident, came to be lodged at the instance of the complainant with the concerned police station. The OP-Company has repudiated the claim of the complainant merely on the ground, that, the name of the driver vehicle as disclosed by the complainant while furnishing intimation to the police, was, Raju, and, who while not possessing a valid and effective driving licence, to drive the category of the vehicle, which, he, was driving at the relevant time, as such, breach of the terms and conditions of the insurance policy having come to be occasioned, the, non-settlement of the claim of the complainant, is, hence, contended to be tenable.

6. Though, the complainant has contended on the basis of Annexures-B & C, that, the disclosure by him to the officials of the concerned police station about the name of the driver was a result of his being gripped by shock, whereas, as a matter of fact, the driver of the vehicle was his brother Harmesh Kumar, who while possessing, a, valid and effective driving licence to drive the category of vehicle, insured with the OP-Company, therefore, the repudiation of his claim by the OP-Company, on the purported score of ‘Raju’ being, its, driver and not at the relevant time possessing a valid and effective driving licence to drive the same, is, an unjustifiable repudiation.


With the complainant not denying the fact of not intimating to the police and his having at the time of furnishing intimation to the police, having named Raju, as the driver of the vehicle, hence, the subsequent disclosure of the name of the, driver, who, purportedly as a matter of fact was driving the vehicle, appears, not, to be a truthful contention, as, the intimation furnished by him to the officials of the concerned police station about the name of the driver, which fact, he, does not deny, would countervail, the,subsequent disclosure by him, of, the name of the driver, who, was as a matter of fact purportedly driving the same, merely, on the pretext of the initial disclosure furnished by him to the officials of the concerned police station, being made by him under a state of shock, unless, medical evidence in support of his being disoriented, at, the time of making the said disclosure, to, the officials of the concerned police station existed, on record or even an endorsement existed, in, the intimation furnished by him to the officials of the concerned police station signifying the fact of his being disoriented.

7. However, the above pieces of evidence do not exist on record, hence, the purported pretext for us to disbelieve his initial intimation provided to the officials of the concerned police station, is, not to be accorded sanctity.

8. Moreover, assuming, that, as a matter of fact Harmesh Kumar, was the driver, at, the relevant time, then, the complainant ought to have placed on record, the, Register of the employees maintained by him or the log book of the vehicle whose adduction would have dispelled the doubt, regarding, the name of the driver of the vehicle, its non-adduction, which, comprised the best evidence, results in the drawing of an inference that on its adduction, the name of the driver would have come to the fore, as such, it was withheld. Cumulatively, it appears that the complainant, has, sought to manipulate the subsequent fact, so, as to compel the OP-Company, to honour his claim. However, for lack of such cogent and convincing evidence, the complainant has not been able to bring home the guilt of the OP-Company in repudiating his claim, as such, he is not entitled to claim any indemnification amount from the OP-Company, for breach of terms and conditions of the insurance policy, entered interse the parties, at the time of procuring the insurance policy, by the complainant from the OP-Company.

9. Resultantly, the complaint merits, dismissal and we order accordingly, leaving the parties to bear their own costs. 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.

M/s Bharti Industries C/o M/s Umesh Industries Pvt. Ltd. Kala amb, through its solr Prop. Smt. Urmil bakshi through her G.P.A Shri Shakti sarup son of Shri Kundan Lal resident of Nahan- kala Amb road, Nahan, Distt Sirmour. H.P.



… Complainant.

Versus



The National Insurance Company Ltd., Naraingarh Through its Manager, Chandigarh- Naraingarh, Naraingarh District Ambala, Haryana.





…Opposite Party.





O R D E R:



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 it is running an industrial unit for the manufacture of raxin school bags, ordinary bags, cycle seat cover etc., in the higher premises of M/S Umesh Industries Pvt. Ltd., at Kala Amb, Tehsil Nahan, District Sirmour, H.P. The complainant further proceeded to aver that the unit was comprehensively insured with the OP-Company, which was valid from 30.09.2005 to 29.09.2006. It is averred that on, 15.02.2006, a fire broke out in the said unit, due to short circuiting of electrical wire resulting in the burning out of entire finished/unfinished products and raw material lying in the factory. As usual, the matter was brought to the notice of the OP-Company, as well, as, to the notice of the Police, upon which Rapat bearing No.26, dated 15.02.2006, came to be lodged with Police Station, Kala Amb. It is averred that the complainant suffered loss to the tune of Rs.5,57,900/- in the fire incident. Thereafter, the insured preferred the insurance claim with the OP-Company, who instead of settling it, repudiated the same, vide communication dated 26.09.2006. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objections regarding maintainability of the complaint, inasmuch, as, locus standie of the complainant, status of the complainant as a consumer, etc. On merits, it is contended that on receipt of the intimation regarding fire incident, they, appointed surveyor and loss assessor to investigate the matter, who intimated that the claim as lodged by the insured with regard to the fire incident is fraud and the insured had submitted fabricated documents. It is further contended that the insured was not running any industry in the given address. However, the complainant had earlier got insurance claim worth Rs.1,64,135/- from the OP-Company regarding fire incident. They further contend that in nutshell, the insured has lodged a false claim in order to grab money from the insurance company. Hence, it is contended that there was no deficiency in service on their part.

3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their respective rival contentions.

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

5. During the currency of the insurance policy, as purchased by the complainant, covering the risk, as envisaged in the insurance cover, the event contemplated in the policy, occurred in the manufacturing unit of the complainant, on, 15.02.2006. The complainant while asserting, that, this Forum direct the OP-Company to pay compensation to the extent, quantified in the complaint, has, depended upon Annexure OP-6, as well, as, the statement of accounts qua the stock in trade lying in the premises, as, prepared by his banker bearing Annexure C-2. Nonetheless, the OP-Company contends on the strength of the complainant having fabricated Annexure OP-4, inasmuch, as, his having added a zero after forty thousand, to, exaggerate his claim, as such, having prepared a fabricated document for obtaining relief from this Forum, hence, his, claim ought to be ousted. In proof of Annexure OP-4, having come to be fabricated, the OP-Company has relied upon the affidavit sworn by the Officer, Incharge of the Fire Station.


The falsity of the certificate Annexure OP-4, though, contended to be so on the strength of the affidavit sworn by one Dhumar Singh, yet, when Dhumar Singh, is, not the person who prepared the details of damage caused to the manufacturing unit of the complainant, nor when the original record has not been placed on record from which, Annexure OP-4, has been issued, therefore, we disagree with the submission of the OP-Company, that, Annexure OP-4, is, false qua the quantum of loss in monetary terms caused to the manufacturing unit of the complainant. Even, otherwise, the effect of the above contention, is, for reasons hereafter, while, we impute credibility to Annexure C-2, is, not only dispelled, but, also leaves Annexure OP-4, to pale into insignificance.

6. With the conflict as detailed, in, Annexure OP-6, and the stock in trade, prepared by the banker of the complainant bearing Annexure C-2, we, one beset with a legal conundrum while assessing compensation. Annexure C-2, is, the inventory of the value of the stock prepared by the banker of the OP-Company on, 05.02.2006, whereas, the incident occurred on 15.02.2006, as such, it is, worthy of credence, qua the value of the stock in trade as reflected in it. However, with the incident having taken place after a lapse of more-than 10 days from the date of the preparation of the value of the stock in trade lying in the manufacturing unit of the complainant, Annexure C-2, ought not to be construed, as, affording absolute or solemn proof, for, enabling us to precisely adjudge the loss caused to the manufacturing unit of the complainant by the fire which engulfed it, on, 15.02.2006.


Even, OP-6, which, is, the report of the Loss Assessor after inspection of the premises was carried by him on 17.02.2006 while seeking, to, falsify the value of the stock in trade lying in the premises of the complainant, reflected in Annexure C-2, on, the score, that, certain cash memos revealing the purchases by the complainant, are, unworthy of credence, is, denuded of its probative value, inasmuch, with, the bankers of the complainant having assessed the value of the stock in trade lying in the premises of the complainant, the revelation, as made, in it, of, the value recited in Annexure C-2, is, to be imputed credence, especially, when, no, evidence has been adduced by the OP-Company that the assessment of value of the stock in trade lying in the premises of the complainant is fictitious.


For want of such evidence, then, obviously, Annexure C-2 has a countervailing effect upon Annexure OP-6 prepared after the premises were gutted down in the fire. Even otherwise, the bankers of the complainant would not have prepared Annexures C-2, so as to prejudice or defeat their financial interest when the said presumption is not rebutted, Annexure C-2, attain immense probative value.

7. Even now, when the fire which took place in the premises of the complainant occurred on 15.02.2006, whereas, Annexure C-2, was prepared on 05.02.2006, hence, the value of the stock in trade as detailed in Annexure C-2, also cannot provide a safe parameter in adjudging the exact compensation payable to the complainant. Therefore, it is deemed fit, just and equitable that after, reducing from the value, of the stock in trade lying in the premises of the complainant, as detailed in Annexure C-2, the average per day of the sales conducted by the complainant from the stock lying in the premises of the complainant from 05.02.2006 till 15.02.2006, the, outstanding sum shall become the amount payable to the complainant for loss suffered by the complainant in the incident.


Hence, the said sum so arrived at, is, as such, payable to the complainant by the OP-Company along with interest, at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 07.12.2006, till making entire payment of the sum, along with litigation cost, which is quantified at Rs.3500/-. 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. With this, the complaint stands disposed of in the above terms. 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 Ram Nath Son of Shri Sansar Singh,

Resident of village Bankala, Tehsil Nahan,

Distt Sirmaur, H.P.



… Complainant.

Versus



National Insurance Company,

Through its Branch Manager,

Paonta Sahib.



…Opposite Party.





O R D E R:



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 he is owner of tractor bearing registration No.HP-18A-1520, which was got insured by him, with the OP-Company, and the insurance policy was valid from 30.08.2006 to 29.08.2007. It is averred that on, 04.10.2006, the aforesaid tractor met with an accident and suffered loss. As usual, the matter was brought to the notice of the OP-Company, who in turn appointed surveyor to inspect the afflicted vehicle. Thereafter, the insured incurred an amount of Rs.46,565/- in order to make the aforesaid tractor road worthy and lodged the insurance claim with the OP-Company, who instead of settling it, closed the same on the ground that the vehicle was not having fitness certificate, which as per further allegation of the complainant, tantamounts to deficiency in service and unfair trade practice. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objection regarding maintainability of the complaint, inasmuch, as, that there is no deficiency in service. On merits, the OP-Company did not dispute the factum of insurance of the tractor and its having suffered loss. It is contended that the loss was assessed by the surveyor to the extent of Rs.22,768/-, but it was only payable subject to terms and conditions of the insurance policy. They further contend that the fitness of the tractor had expired on 06.07.2005, as such, there was no valid fitness certificate at the time the tractor met with an accident. Therefore, the OP-Company was well within its right to close the claim of the complainant, as no claim. Hence, it is contended that there was no deficiency in service on their part.

3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their respective rival contentions.

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

5. The parties doe not contest the factum of the accident having occurred, on, 04.10.2006, during the subsistence of the insurance policy. Also, the parties do not wrangle qua the assessment of loss, suffered by the insured vehicle during the currency of the insurance policy. The insurer has sought to exculpate its liability to pay the amount of indemnification, as asserted by the complainant against, it, on the score that the fitness of the tractor, stood expired on 06.07.2005, hence, it is not liable to make good the loss suffered by the complainant.

6. The defence so built up by the OP-Company, to deny its liability, seems to be an after thought for the reason that the policy qua the tractor was issued by it, on, 30.08.2006, covering the risk from 30.08.2006 to 29.08.2007, whereas, the fitness certificate was valid only up to 06.07.2005, meaning thereby that the OP-Company, hence, came to insure a vehicle, which was not having a valid fitness certificate at the time of insuring the same.


Hence, for lack of proper scrutiny of the documents by the OP-Company, at the time of issuing the policy in favour of the complainant qua the vehicle, they, cannot, deny the claim at this stage, to the complainant on the score of the fitness of the vehicle, insured by it having expired, as, the fact, of, insurance, by, them of the vehicle suffering damage during the currency of the policy, estops, them from denying so. Besides, when no proof has been adduced, that the lack of fitness of the vehicle was the prima dona cause of the accident, its, want, also, disables the OP-Company to canvas the said defence. As such, the ground as taken by the OP-Company, to deny its liability to make good the loss, is not justifiable and, it, hence, cannot exculpate its liability under the insurance policy.

7. The loss has been assessed by the surveyor so appointed by the OP-Company to the tune of Rs.22,768/-, as per the survey report Annexure OP-1, which report has not come to be repulsed by the complainant by adducing any expert evidence, hence, cannot be ignored, in assessing the loss.

8. Consequently, we allow this complaint and direct the OP to indemnify the complainant to the extent of Rs.22,768/-, along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 05.09.2007, till making full payment of the aforesaid amount to the complainant. The OP-Company is also ordered to pay litigation cost, which is quantified at Rs.1,000/-. These payments shall be made to the complainant, by the OP-Company, within a period of forty five days, after the date of receipt of copy of this order. The learned counsel for the parties have undertaken to collect the certified copy of this order from the office. The file after due completion, be consigned to record room.

Shri Sampuran Singh S/o Sh. Joginder Singh,

R/o Vill. Akalgarh, The. Paonta Sahib ( H.P.)



… Complainant.

Versus



National Insurance Company, Opp. Kathuria,

Near Y Point, Paonta Sahib, Distt Sirmour (H.P.)

Through its Branch Manager.



…Opposite Party.





O R D E R:



This order shall dispose of complaint filed under section 12 of the Consumer Protection Act, 1986. The case of the complainant in brief is that he got two buffaloes and two cows insured with the OP-Company, for a total sum of Rs.75,000/-. It is averred that in the night of 28th April, 2007, one of the insured cow died due to illness and hence, the insurance claim was lodged with the OP-Company. The complainant further proceeded to aver that the OP-Company instead of settling the insurance claim, repudiated the same on the ground of no tag, no claim. Hence, feeling dissatisfied and aggrieved by the repudiation of his claim, the complainant perforce filed this complaint against the OP-Company.

2. The OP-Company, in its written version, to the complaint, raised preliminary objections, regarding maintainability of the complaint, lack of deficiency in service and breach of terms and conditions of the insurance policy. On merits, it is admitted that four animals were got insured for a sum of Rs.75,000/-. It is contended that on receipt of the information regarding the death of the insured animal, the claim was registered, hence surveyor was appointed promptly, but the claim is payable only on rendering the tag by the insured and on proper identification, as per the terms and conditions of the insurance policy. Since, no ear tag was found in the dead animal, as such, the OP-company was well within its right to repudiate the claim of the complainant. Hence, it is denied that there was any deficiency in service on their part.

3. We have heard the learned counsel for the parties and have thoroughly scanned the entire record of the case.

4. The OP-Company does not deny the fact that it had insured two buffaloes and two cows. It contests the fact that the live stock of the complainant which was insured with it, was, not the one which met its end, on, the ground that their, is, variance, in, the colour of deceased live stock, as, also it was not having the tag so provided, at the time of insuring the live stock. However, the tag number, so fixed in the dead live stock, and as recited in, the insurance cover and in the postmortem report, are, alike, hence the said defence put forth by the OP-Company to deny the claim of the complainant, is, without any substance for want of cogent proof on record.

5. Moreover, the defence of the OP-Company that the live stock having tag No.03786/NIC the color whereof was black and white, was not the one, which died, also stands repulsed by the existence of the certificate issued by the President, G.P. Shivpur, whose contents divulges the fact that the cow bearing tag No.03786/NIC having color black and white color did die on 30.04.2007. The same also corroborates the contents of Annexure-I, the insurance cover vide which the live stock bearing tag No.03786/NIc, having black and white colour was insured with the OP-Company. Hence, an inference that the cow as recited in the postmortem report, as well, as, certificate issued by the President, G.P. Shivpur, was the one which was insured with the OP-Company, is, to be drawn, hence, non-settlement of the claim of the complainant by the OP-Company, was, not legally justified and tentamounts to deficiency in service.

6. In view of the above, we, allow this complaint and direct the OP-Company to indemnify the complainant to the extent of insured sum, i.e. Rs.20,000/-, as reflected in insurance cover Annexure-1, along with interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 22.04.2008, till actual payment is made. The litigation cost is assessed at Rs.1,000/-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. With this, the complaint stands disposed of finally. 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.

Sukhdev Singh aged 25 years S/o Harbhajan Singh resident of Village Taggar Kalan, P.O. Naushera Pattan, Tehsil Mukerian, Distt. Hoshiarpur.


......... Complainant


versus


1.

National Insurance Company Limited, Branch Office: DAB-1, 20 G.T. Road, Jalandhar through its Branch Manager.
2.

National Insurance Company Limited, Divisional Office: Madan Building, Phagwara Road, Hoshiarpur, through its Senior Divisional Manager.

......... Opposite Parties




1.

The complainant namely Sukhdev Singh has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Stated briefly, the facts of the case are that the complainant got Truck No. PB07-R-9015 comprehensively insured with OP No. 1. That OP No. 1 undertook to indemnify all types of losses to the said truck including Own Damage Claim during the period of subsistence of the insurance policy.
2.

It is the case of the complainant that the said truck turned turtle in the area of Railway Crossing, Sardar Shehar, Rajasthan on 15.12.2006 and suffered huge damage. The complainant intimated with regard to the accident and damage to the truck to OP NO. 1, who in turn arranged the spot survey. The surveyor surveyed the vehicle at the spot and submitted report to OP NO. 1.
3.

It is further the case of the complainant that the said truck was brought to Delhi by engaging a crane, where it was finally surveyed by Sh. Jeevan Aggarwal, Surveyor and Loss Assessor, who assessed the damage to the tune of Rs. 55,000/-. The complainant completed all the formalities for claiming the Own Damage.
4.

It is the allegation of the complainant that the opposite parties failed to settle the claim. That registered legal notice was sent to OP No. 1 with the request to pay the Own Damage Claim. The reply to the said notice was received, wherein it was stated that “The claim file was closed because the claimant has not completed the requirements required thereof”. The closing of the file by the insurance company is stated to be illegal and non-payment of own damage claim amounts to deficiency in service, hence this complaint.
5.

The opposite parties filed the joint reply. The preliminary objections vis-a-vis maintainability and jurisdiction were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant failed to cooperate and give necessary information and documents to the replying opposite parties. Thus, the opposite parties closed the claim file due to non-production of necessary documents.
6.

It is further replied that the liability of the opposite parties is as per terms and conditions of the insurance policy and provisions of law. That no intimation with regard to the alleged accident was received at the office of OP No. 1. However, the final survey by Sh. Jewan Aggarwal, surveyor and loss assessor is not denied. It is further replied that the alleged accident has taken place near railway crossing, Sadul Shahar, Rajanthan, as such the spot survey was conducted by the surveyor located in Hanumangarh, Rajanthan.
7.

It is further replied that the truck in question was brought for repair to Delhi, where final survey was conducted. The complainant filed the claim at Jalandhar. The National Insurance Company, Jalandhar asked the complainant to provide necessary particulars regarding intimation letter for assessment of loss, appointment of surveyor by the competent authority. The complainant was also asked to clarify that some of the bills submitted by him are not from the person, whose estimate has been supplied, as such the re-inspection was done by the surveyor. However, despite of number of requests, the claimant-complainant failed to respond or clarify the matter. Thus, the claim file was closed as it was not possible to keep it pending for a long period. The file was closed as no claim vide letter dated 7.3.2008 and its due intimation was given to the claimant. Since the complainant failed to provide necessary information and documents, as such the claim could not be processed.
8.

In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, copy of RC of Truck No. PB-07-R-9015 – Mark C-2, receipt dated 20.12.06 of Crane – Mark C-3, receipt dated 27.12.06 – Mark C-4, Cash Memo dated 26.12.06 or Deepa Motors – Mark C-5, cash memo (bill) of diesel dated 28.12.06 – Mark C-6, receipt dated 27.12.06 – Mark C-7, cash memo dated 28.4.2007 – Mark C-8, copy of letter dated 23.8.2007 – Mark C-9, legal notice – Mark C-10, copy of reply – Mark C-11 and closed the evidence.
9.

In rebuttal, the opposite parties tendered in evidence affidavit of Dr. A.S. Kohli – Ex.OP-1, letter dated 7.3.2008 – Ex. OP-2, letter dated 23.4.2008 of RTA, Jalandhar – Ex. OP-3, legal notice – Ex. OP-4, letter dated 13.6.2007 – Ex. OP-5, application by the complainant – Ex. OP-6, surveyor report dated 15.3.2007 – Ex. OP-7, claim form – Ex. OP-8, postal receipts – Ex.OP-9 and Ex. OP-10, insurance policy alongwith terms and conditions – Ex. OP-11 and closed the evidence on behalf of the opposite parties.
10.

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

The opposite parties have raised the plea that the claim of the complainant has been repudiated on the ground that he has failed to comply with the requirements. That the behavior of the complainant was non-cooperative, as such the claim could not be kept pending for a long period. The opposite parties have also raised the defence that in the absence of necessary information being provided by the complainant, the file was closed as “No Claim” vide letter dated 7.3.2008 and its due intimation was given to the party. But despite of that, the necessary information and documents were not supplied.
12.

As a result of the above discussion, it is concluded that since the complainant has failed to supply the necessary information and documents, therefore, it is held that the complaint made by the complainant is pre-mature, as such the complainant is directed to supply the necessary information and documents to the opposite parties for settlement of the claim within 20 days from the receipt of copy of the order, and thereafter, the opposite parties shall settle the claim of the complainant within 30 days and in case, the complainant does not feel satisfied with the settlement of the claim by the opposite parties, he has a right to approach this Court by filing the fresh complaint, if so advised. The complaint stands disposed of accordingly. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Naresh Goel(C.A.) son of Sh. Jeewan Lal Goel, aged about 40 years, r/o H.No.536, Sector-39, Urban Estate, Chandigarh Road, Ludhiana.

…..Complainant.

Versus



1- National Insurance Co. Ltd., Regd. Office at Middle Town Street, Kolkata-700071 through its Chairman/Managing Director.

2- National Insurance Co. Ltd. Kochar Market, Model Gram, Ludhiana through its Branch Manager.

3- Park Medi Claim Consultants Pvt. Ltd. SCO-21, 2nd Floor, National Shopping Complex, Hide Market, Amritsar-143001 TPA.

…..Opposite parties.






O R D E R




1- In this complaint u/s 12 of the Consumer Protection Act, 1986, case of complainant in short is that he is resident of above said address. But earlier when he had purchased hospitalization benefit policy, he was resident of H.No.1173, Sector-39, Urban Estate, Chandigarh Road, Ludhiana and at that time, he purchased medi-claim policy through branch of opposite party no.1 i.e. Divisional Office no.1, Atam Park, Ludhiana, vide cover note 892451 dt. 4.7.2002 valid from 19.7.02 to 18.7.03, qua which paid premium of Rs.1586/-. That policy was further renewed from time to time by opposite party no.1 through their different branch offices situated at Ludhiana vide cover notes no.0111678 dated 7.7.03, no.212891 dated 18.7.04, no.339040 dated 15.7.2005, no.396226 dated 13.7.06 and lastly, it was renewed on 16.7.07 vide cover note no.5589380 and a sum of Rs.2779/- was charged as premium and policy is valid upto 18.7.08. Relevant copies of cover notes show that medi-claim policy has been continuously renewed upto 18.7.08.


In last cover note no.5589380 dated 16.7.07, opposite party issued policyno.404000/48/07/8500000406 under which, complainant himself, his wife Shivani, Baby Prinyanka his daughter and Master Rushit Goel his son, all were insured for Rs.50,000/- each. On 16.2.2008, Master Rushit Goel was admitted with Dr. Kanwar Mohan”s Squint Centre, SCO no.833-834, 2nd Floor, Sector 22-A, Near Bus Stand, opposite Parade Ground, Chandigarh, for squint surgery of his left eye, who performed squint surgery of Master Rushit Goel and was discharged on the same evening. Rs.26,955/- were spent on treatment. Claim was lodged with opposite party.


Complainant received a letter no.NICCH 1/2204 dated 3.4.08 of opposite party no.3,seeking prescription slip for diagnose at first instance, certificate from attending consultant, details of Rs.7500/-, prescription slip to support medical voucher dt. 16.2.2008, name and address of bank with account number. In fact, complainant has no privity of contract with opposite party no.3. However, complainant sent these documents to opposite party no.2 vide letter dated 20.5.2008. He through another letter, sent certificate dated 29.7.08 issued by CMC Hospital, Ludhiana. Opposite party no.3 sent another letter received by complainant on 2.9.2008. Information sent to opposite party by complainant, was also sent to opposite party no.3 by him through registered cover. But they failed to settle the claim.


Ultimately, complainant received a letter dt.1.10.2008 from opposite party, threatening to close the file as no claim, without further notice. Act of opposite party is illegal, null and void, as insured was duly covered under policy since 4.7.02. Policy was in existence when medi-claim was preferred. Therefore, for deficiency in service on their part, sought direction to opposite party to settle the claim of complainant for Rs.26,955/- with 18% interest p.a. and also to pay Rs.30000/- as compensation and Rs.11000/- as litigation costs.

2- Opposite parties in reply, claimed complaint not maintainable, complainant not come with clean hands, complaint is neither properly verified nor supported by any legal affidavit, and complaint is barred u/s 26 of Consumer Protection Act. This Forum has no jurisdiction to try and decide the complaint, since there is no deficiency in service on their part. Immediately on receipt of claim, it was duly entertained, registered and referred to opposite party no.3 and insured was called upon to submit documents in support of his claim and after receipt of some documents and scrutiny of claim file, it was found that claim wasn’t tenable on ground that son of complainant was suffering from iris Coloboma of the left eye just after two months of his birth and complainant failed to supply the schedule of treatment taken for the same.


Complainant was asked to get certified from treating doctor to the effect that disease was congenital or acquired to process the claim, but he failed to do so despite repeated reminders. It is well known that in most of the cases, disease of squint is from birth and claim couldn’t be process in absence of certificate. As per clause 4.1, all diseases/injuries which are preexisting when cover incepts for first time, are not payable. Complainant was duly supplied terms and condition of the policy. There is no deficiency in service on their part and complaint deserves dismissal.

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

4- Complainant argued that he took policy from 19.7.02 to 18.7.03 and subsequently, got renewed the policy upto 18.7.2008 and continuously renewed the policy upto 19.7.2007 to 18.7.2008 and paid the premium of the above said polices. Further argued that the last cover note no.5589380 dated 19.7.2007 and have mentioned the policy no.404000/48/07/8500000406 and the other family members were included in the policy as below:-

(i) Shivani w/o Sh. Naresh Goel;

(ii) Devi Priyanka D/o Naresh Goel

(iii) Master Rushit Goel s/o Naresh Goel

and complainant himself.

5- On 16.2.2008, Master Rushit Goel was admitted with Dr. Kanwar Mohan ‘s Squint Centre, SCO no.833-34, 2nd Floor, Sector 222-A, Chandigarh, for squint surgery of his left eye and squint surgery of Master Rushit was performed and was discharged on the same evening and a sum of Rs.26955/- for treatment was spent vide bills Ex.C8 to Ex.C11. Complainant lodged mediclaim vide Ex.C12 with opposite party no.2 qua amount spent for treatment of Master Rushit who was covered under the policy. Further argued that he received a letter NICCH 1/2004 dated 3.4.2008 from opposite party no.3, seeking some information and documents. He has no privity of contract with opposite party no.3. He sent the required information and documents to opposite party no.2 vide letter dated 20.5.2008 Ex.C14 alongwith a certificate dt. 29.7.08 issued by CMC Hospital, Ludhiana , Ex.C15 & Ex.C16.


Further submitted that he furnished all documents/information to opposite party but opposite party vide letter dated 1.10.2008 Ex.C19 submitted that record related to the first detection of coloboma in July 2001 and a certificate from attending consultant providing information whether squint in this case is congenital or acquired and further information may please be forwarded for Iris Coloboma left eye from which Master Rushit Goel was suffering and 15 days was to provide the information and in case no information received, his claim will be filed as no claim without further notice. This act of opposite party, threatening to close file as no claim is illegal, null and void and against principles of natural justice.

6- Opposite party argued that on receipt of claim form, it was duly entertained, registered and referred to opposite party no.3 and insured was called upon to submit documents in support of claim. After receipt of receipt of documents and scrutiny thereof, it was found that claim wasn’t tenable on ground that Master Rushit Goel son of complainant was suffering from Iris Coloboma of left eye just after two months of his birth (Ex.C16) and complainant failed to supply schedule of treatment taken for the same. Complainant was asked to get certificate from treating doctor whether the disease was congenital or acquired to process the claim, but he failed to do so, despite of repeated reminders Ex.R1, Ex.R2, Ex.R4,Ex.R6 and Ex.R7. Opposite party further argued that most of the cases, the disease of squint is from birth and claim could not be processed in absence of certificate. It is presumed that the complainant was having this problem from birth, so opposite party is not liable to make any payment. Under clause 4.1 of the policy, all diseases/injuries which are pre existing when the cover incepts for the first time, are not payable.


Disease of his son was existing at time of purchasing the policy, but complainant did not inform it to the company while purchasing policy for the first time. The complainant was supplied with terms and conditions of policy and he was aware of the same but despite he failed to comply with terms and conditions of policy bond. Therefore, claim of complainant was repudiated vide letter dated 16.10.2008 Ex.R10 and file was closed as no claim as the complainant did not furnish information regarding many letters mentioned above in Ex.R10.

7- From above facts and figures, it is to mention here that complainant on 16.2.2008, got admitted his son Master Rushit Goel in Dr. Kanwar Mohan ‘s Squint Centre, SCO no.833-34, 2nd Floor, Sector 222-A, Chandigarh and got squint surgery for his left eye done, he was discharged on same day after surgery. He made payment of Rs.26955/- vide bills Ex.C8 to Ex.C11. It is also to mention here that this surgery was done for his son for squint of his left eye. Whereas opposite party has objected that his son was having this diseases Iris Coloboma in left eye just after two months of his birth(Ex.C16) and this certificate has been issued by CMC & Hospital, Ludhiana. It is also to mention here that Master Rushit Goel was operated for squint in his left eye.


It is also to make clear that as per certificate issued by CMC, Ludhiana, no anomalies was detected at birth and was a normal baby (Ex.C16) and only after two months of age, he was found to have an Iris Coloboma in left eye which was confirmed by Opthalogist. Further, if we go through medical certificate of CMC Ex.C16, there was no mentioned of any squint in his left eye since his birth and only Iris Coloboma was detected after two months, as per the medical dictionary, the squint and Iris Coloboma, both are different to each other and is not one and the same thing. Squint as per the medical dictionary means, “commonly called erosed eye”. Medical Dictionary means of Iris is “The coloured layer of the eye, surrounding the pupil”, and meaning of Coloboma is “A fissure, especially of a parts of the eye”. It is quite obvious that squint and Iris Coloboma are not having same meaning and these two are different diseases and not identical.


Fora reaches at the conclusion that repudiation by the opposite party, vide letter dated 16.10.2008 Ex.R10, is wrong and exclusion clause 4.1 of the policy that disease was pre existing, is not applicable in this case. As the complainant has got operated his son Master Rushit Goel for squint surgery which is different from Iris Coloboma, hence the amount which complainant has paid for Rs.26955/- vide Ex.C8 to Ex.C11, is legal and genuine and to be payable to the complainant by the opposite party. Hence, the complaint has merit and is allowed. Opposite party is directed to settle the claim of Rs.26955/- to the complainant, within 30 days from receipt of this order. Copy of order be provided to the parties free of charge. File be completed and consigned to record room.

Byraboina Venkata Narayana, s/o.Venkaiah, age: 45 years,

occu: Agriculture, r/o.Raghavapuram village, Khammam district.



…Complainant

and



1. M/s.Golden Multi Services club Ltd., S.B. Mansion

16 RN. Mukherjee road, Kolkata, West Bengal.



2. M/s. National Insurance Company Ltd., NIC Ltd., Division III,

8 India Exchange place (ground floor), Kolkata, West Bengal.



…Opposite parties



This C.C. came before us for final hearing on 10-9-2009; in the presence of Sri.B.Kalyan Rao, Advocate for complainant, Sri.P.Muralidhar, Advocate for opposite party No.1; Sri.Y.Subrahmanyam, Advocate for opposite party No.2; upon hearing the arguments and upon perusing the material papers on record, and having stood over for consideration, till this day, this Forum passed the following order:


O R D ER





1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The brief facts of the complaint are that the son of the complainant subscribed Group Personal Accident Policy with opposite party No.2 through opposite party No.1 vide policy No.100300/42/04/82000112 and the opposite party No.1 issued a certificate bearing No. GMSC/GPA/04-05/AA-0823108 Dt.8-10-2004 for a period from 8-10-2004 to 7-10-2014 for a sum of Rs.1,00,000/-, that the insured Byraboyena Venkanna was bitten by snake, immediately he was shifted to Gandhi hospital & Diagnostic center at Khammam, by that time the said Venkanna was found dead. Dr.Ch.Babu Rao of said Gandhi hospital, attended the deceased and issued a certificate, dt.5-3-2008 by mentioning the cause of death of Venkanna on 15-1-2007 due to snakebite and also noticed the snake bite mark on his body. The death of Venkanna was registered with local body concerned i.e. Gram panchayat Mudigonda and office of Tahasildar.


Accordingly, the death certificate was issued by Sarpanch, Grampanchayat specifying the cause of death due to snakebite. The Tahasildar also issued death certificate. Since the complainant and family members are not aware about the subscribing of the insurance company by B.Venkanna/deceased. Subsequently, in the month of June, 2007, the complainant came to know about the insurance policy. Immediately the complainant lodged the claim with opposite parties. The opposite parties have directed him to furnish F.I.R. or P.M.E. As the death was not registered with the police, no F.I.R. was issued nor P.M.E. was conducted.


The complainant explained the above circumstances. But the opposite parties have failed to consider the proof and nature of death of the deceased, Venkanna and repudiated the claim, alleging the delay of more than 5 months in claiming the policy amount and failed to submit relevant documents. Such conditions are self- serving and not justified. The proof of death is established through the certificate issued by Gram panchayat and Tahasildar. The period of time for intimation within 30 days and submitting documents within 60 days are self imposed and not sustainable. The opposite party cannot repudiate the claim of the complainant alleging the violations of terms and conditions. Hence, this complaint.

2. Apart from the complaint, the complainant filed an affidavit reiterating the contents of the complaint.

3. On receipt of the notice, the opposite parties appeared through their counsels filed counters. In the counters they denied all the averments made in the complaint. They further contended that the complainant did not comply the terms and conditions of the policy and did not furnish the said certificates such as F.I.R., final report and P.M.E. report, which are mandatory and these documents are to be filed within 90 days to the opposite party No.2 and the death was not intimated within 30 days. As such the complainant is not entitled to any claim and prayed to dismiss the complaint. Both the opposite parties filed their counters in the similar lines.

M/s.Bombay Gas Light Stores, Rep. by its Managing Partner, Sri Gul Raz Saleh, S/o Saleh Bhai, aged 38 years, Muslim, D.No.10-1-27/A, Asilmetta Junction, Visakhapatnam. … Complainant

And:


1. National Insurance company Ltd., Rep. by its Branch Manager, Divisional Office-II, D.No.47-14-7-1, 1st floor, Rao & Sons Complex, Dwaraka Nagar, Visakhapatnam-530 016.

2. National Insurance Company Ltd., Rep. by its Managing Director, Registered Office, 3 Middleton Street, Post Box No.9229, Kolkota-700 071, West Bengal.

… Opposite Parties




: O R D E R :





1. The case of complainant is to reimburse the cost of three glass pans of their show room at Rs.1,53,225/- and also pay compensation of Rs.50,000/- besides the legal expenses of Rs.5,000/- from M/s. National Insurance Company, Visakhapatnam branch whom they obtained policy for the coverage of their shop against the provisions of the policy.

2. The complainant is M/s. Bombay Gas Light Stores, Visakhapatnam. They are running a shop at Sampath Vinayaka Temple, Asilmetta Junction. They regularly obtaining Insurance coverage from M/s. National Insurance Company having its branch of Visakhapatnam since 1997 and latest policy No.5507600/11/07/31000000 dated 14-07-2007 having coverage for the period from 14-07-2007 to 13-07-2008. .


Their complaint is that one of the front elevation glass pan got damaged on its own and having the coverage under the insurance and promptly placed the claim with the Insurance Agency for Rs.51,075/- vide letter dated 21-10-2007 along with photograph of their damaged glass. The surveyor appointed by the Insurance Agency disallowed the claim on the ground that it is not covered under the policy terms. The complainant submits that after due intimation to the Insurance authorities; He replaced damaged glass with new one and while such replacement is taking place two more glasses were damaged. After making several attempts with the Insurance Agency, the complainant sought to redress his grievance by placing complaint with the consumer forum.

3. In support of his contention, the complainant submitted documentary proof by furnishing original copies of Insurance Policy under Ex.A1 cash receipt towards the cost of the glass pan and the Ex.A2 and two cash receipts in the subsequently damaged glass pans at Ex.A3 and Ex.A4; also submitted independent surveyor’s opinion at Ex.A5, photographs of the damaged glass at Ex.A6, and copy of letter to the customer service department taking objections to the surveyor’s report at Ex.A7.



4. The opposite party on their part in their counter denied any liability as the independent surveyor appointed, gave his opinion, stating that it has no coverage under their policy and further advised the complainant that, in case, he is not satisfied with the opinion; he can approach the customer service department based at Hyderabad. The opposite party further asserted that while the claim filed only for single damaged glass where as the claim for other two glasses, damaged while refixing process; not filed. As such, the complaint is not maintainable for additionally damaged two glasses.



5. Basing on the versions of the affidavit of the complainant with documentary support and as well as counter of the opposite party, the forum after carefully examining the relevant factors in the case with due examination of documentary support submitted by the complainant, is of the view that the complainant having insured the property as per the schedule covered on various heads is well clear of his intention to get coverage of their premises in its entirety. Further in terms of policy schedule in the item of glass front fixtures is covered under description of property described in sheet No.0643319. However the complainant made claim for additional two glasses which were said to have been damaged in the process of fixing new glass of the first damaged glass; He did not place the claim with the insurance authority in respect of the subsequently damaged two glasses. As such his claim is considered; limiting to first damaged glass only. He did not submit any proof to the effect that of claiming subsequently damaged two glasses also.



6. In the circumstances, the forum is of the opinion that the complainant is allowed to the single first damaged glass pan only, costing for Rs.51,075/- besides compensation of Rs.10,000/- towards deficiency of service and mental agony.



7. As to the interpretation whether the glass pans comes under fixtures or fittings as made by the complainant as well as opposite party, the forum is of the view that it covered under the definition of fitting described in Chambers dictionary.



8. In the result, the complaint is allowed only towards the cost of the single glass pan damaged @ Rs.51,075/- payable by the opposite party i.e National Insurance Company besides compensation of Rs.10,000/-; No costs. Advocate fee is fixed for Rs.3,000/-