Kante Satyavathi, W/o (Late) Adinarayana, Hindu, aged 48years, R/o Pulaparthi Village, Yelamanchili Mandal, Visakhaptnam Dist.

… Complainant

And:

1. National Insurance Co. Ltd., Division Office – III, rep. by its Divisional Manager, National Insurance Building, Ground Floor, 8, India Exchange Place, Kolkatta – 700 001.

2. Golden Trust Financial Services, Rep. by its Manager, 16, R.N.Mukharjee Road, Kolkatta – 700 001.

3. National Insurance Co. Ltd., rep. by its Divisional Manager, Dwarakanagar, Visakhapatnam.

4. Insurance Ombudsman, 6-2-46, 1st Floor, Moin Court, Lane Opposite to Saleem Palace, AC Guards, Lakdi-ka-pool, Hyderabad – 500 004.

… Opposite Parties


: O R D E R :







1. Complainant is the nominee of a “Group Janata Personal Accident Insurance Policy No.100300/47/01/9600022/03/96/30106 of 2003, which is issued by 1st opposite party to the son of the complainant during his life time covering from 23-06-2003 to 22-06-2018. That the deceased son of the complainant hit by speeding van on 27-10-2005 resulting in his death. The same was registered under Crime No.69/2005 with the PS of Yellamanchil under Section 304(a), 338, 337 of IPC and postmortem was also conducted on 27-10-2005 at Government Hospital, Yellamanchilli. That the complainant intimated the same to the 2nd opposite party , who in turn forwarded the same to the 1st opposite party but there was no reply inspite of written correspondence by the complainant on 03-11-2006 & 01-02-2007.


As there was no response complainant gave a complaint to the 4th opposite party on 17-09-2007 to settle the claim, upon which the 4th opposite party passed award on 11-12-2007, directing the 1st opposite party to settle the claim within two months, inspite of that 1st opposite party failed to process or settle the claim. That the complainant issued registered lawyer’s notice date 12-11-2008, but the claim was not settled. Alleging this as deficiency in service complainant filed this complaint, to direct the opposite parties to pay the policy amount along with interest @ 24% .p.a. from the date of accident till realization and to direct the opposite parties 1 to 3 to pay Rs.1,00,000/- towards damages and mental agony caused and for costs.

2. 3rd opposite party filed counter admitting that the complainant is mother and the legal heir of the deceased Kante Ramu, who is covered under the Janatha Personal Accident Policy No.100300/47/01/ 96000222. Further contended that the policy is subjected to limitations and conditions which are incumbent and binding on the complainant during the policy period. That there is no deficiency of service and the time taken is just and reasonable and there is no valid cause of action against this opposite party, hence pleaded for dismissal of complaint against them with exemplary costs.

3. 1st opposite party filed memo adopting the counter filed by the 3rd opposite party.

4. The 2nd opposite party took a plea that it is only a facilitator in obtaining policy for the deceased from 1st opposite party and hence cannot be mulcted with any liability.

5. Complainant filed affidavit and Ex.A.1 to Ex.A.8 are marked. Opposite parties filed their respective affidavits. Ex.B.1 to Ex.B.5 are marked for the 2nd opposite party. 1st opposite party did not file any documents.

6. After careful analization of entire issues it is observed that the complainant has promptly intimate the case of accident within the stipulated time and on failure of the 1st opposite party to respond to the complainant in the back drop of several attempts made by her, it is prima facie found that the 1st opposite party did not respond to the complaint. Subsequent to this the complaint has been placed with 4th opposite party who after examining the case ordered that the insured amount of Rs.1,00,000/- to be paid to the complainant on fulfilling the requirements under Rule 16(5) & 17 and also in respect of the insurer under Rule 16(6) for their respective compliance. Further in the course of proceedings before this Forum the insurer has deposited the insured amount of Rs.1,00,000/- cheque in the name of the complainant and the complainant failed to comply with the requirements. But the crux of the case in this the issue is that the complainant was put to long waiting without clearing the insurance claim with the 1st opposite party which necessitated the complainant to approach the 4th opposite party and subsequently alleged the complainant before this Forum.


Taking cognizance of all these aspects the Forum is of the opinion that besides the delivering the deposit amount of Rs.1,00,000/- by the insurer a compensation of Rs.20,000/- be awarded on account of mental agony and deficiency of service caused by the opposite party 1 & 3. 2nd opposite party has done his part of duty duly remitting the contribution promptly and 4th opposite party need not be brought into the picture as the award passed by him met the requirements to fulfill the claim requirements. In these circumstances the Forum award a compensation of Rs.20,000/- besides the insured amount of Rs.1,00,000/- along with interest @ 9% p.a. from the date of ombudsman order dated 11-12-2007. Accordingly this point is answered.

7. In the result, the complaint is allowed, directing the complainant to collect the deposited cheque amount of Rs.1,00,000/- with this Forum standing in the name of the complainant. The opposite parties 1 & 3 are directed to pay Rs.20,000/- towards compensation on account of mental agony and 9% interest from the date of order i.e., dated 11-12-2007 and to pay Rs.5,000/- towards costs. Claim against the opposite parties 2 and 4 are dismissed.

Babu.K.V.
...........Appellant(s)

Vs.

National Insurance Company Limited

National Insurance Co. Ltd. Branch Office
...........Respondent(s)





ORDER





The case of complainant is that the complainant was a mediclaim policy holder of respondents Insurance Company vide policy No,.570704/42/2001/8204886. The coverage of the policy was from 27.3.02 to 6.3.2007. On 13.8.05 the complainant was met with an accident and sustained injury to his left leg. He was admitted in Chandramathi Amma Memorial Hospital, Olarikkara and treated there for two weeks. After that he has applied for the mediclaim policy benefits with all relevant documents. On 15.1.06 he has gone to the respondent company but was returned back without stating any reason. So on 3.2.06 an Advocate notice was sent but was no reply. Hence this complaint.

2. The counter of respondent is as follows: These respondents deny the averments in the complaint that they have delayed and denied the claim of the complainant stating one reason or the other. These respondents deny the averment in the complaint that on 15.1.06 the complainant went to the respondent Company basing on the assurance give by the Company and on that day without stating any reason for non-payment sent the complainant back. The company deputed its insurance investigator Mr.P.J. Varghese to investigate the claim and on his enquiry it was found that the name and initial shown in the address in the policy does not tally with his fathers name and house name. So he was asked vide letter dated 22.2.06 to bring his original identity card to settle the claim.


He brought a certificate showing his identity from the Village Officer, Aranattukara and accepting that the company has sent a cheque for Rs.16,427/- dated 2.3.06 of Indian Bank, Thrissur by registered post on 15.3.06 and it was received by the complainant and encashed. Even though the claim was for Rs.19,999/- as two receipts produced by the complainant along with the claim did not contain the seal and was not issued by the hospital where the complainant has undergone treatment that amount was not paid to the petitioner. The complainant is not entitled for Rs.20,000/- as compensation and Rs.10,000/- for pain and sufferings. There is no deficiency in service on the part of the respondents. Hence dismiss the complaint.

3. The points for consideration are:
(1) Is there any deficiency in service on the part of respondents?
(2) If so, reliefs and costs.

4. The evidence consists of Exts. P1 to P10 and R1 to R9 series.

5. Points-1 & 2: The case of the complainant is that he being a mediclaim policy holder is entitled to get the reimbursement of the medical expenses incurred to him.

6. In the counter the respondent company stated that on getting the claim the company deputed its investigator to investigate the genuineness of the claim and it was found that the name and father’s name of the complainant does not tally with the address in the policy. Then the company asked to bring his original identity card to verify the address and settle the claim. The complainant brought a certificate from the concerned Village Officer and company settled the claim by sending a cheque for Rs.16,427/- and it was encashed by the complainant. So according to the company, the complainant has no scope for any further claim.

7. In the counter the company stated that even though the claim was for an amount of Rs.19,999/- as two receipts produced by the complainant along with the claim form did not contain the seal and was not issued by the hospital where the complainant has undergone treatment. So they deducted that amount. In the complaint the complainant seeks Rs.20,000/- as the policy claim. The company produced the medical bills submitted by the complainant to the company and marked as Ext. R9 series. The grand total stated as 19,999.95. On perusal we noticed that there are two bills which did not bear seal of the hospital. One bill dated 15.8.2005 shows that an amount of Rs.850/- charged towards professional charges for services rendered at Chandramathi Amma Memorial Hospital. The doctor’s name stated as Nandakishore Menon.


There is no seal as stated by the respondent company. Another bill dated 24.8.05 shows that an amount of Rs.2500/- was imposed towards professional charges. There is also no seal. If those receipts were issued from the hospital there should seal of that hospital. So genuineness of those two receipts is under suspicion. The complainant failed to take any steps to prove the receipts. The counter which was filed on 30.3.07 contains the main defence as the genuineness of these two bills. So the complainant was duty bound to prove the correctness of these receipts. So he is not entitled for the amount deducted by the company.

8. In the counter the respondents stated that a cheque for Rs.16,427/- was sent to the complainant and it was encashed by him. The complainant produced the copy of cheque and marked as Ext. P3. There is no dispute regarding the acceptance of the cash. So the complainant is not entitled for any further claim.

9. In the complaint it is stated that he has entrusted the documents in the respondents company on 6.10.05. Even if the issuance of cheque was on 15.3.06 that is not a delay to honour the claim. The delay was only because of the non-tallying of the name and address of the complainant. So he is not entitled for compensation or cost.

10. In the result, the complaint is dismissed.

M.Padma w/o. V.Manjunatha,

Badavanahally, Madhugiri taluk, Complainant

Tumkur district





AND



The Branch Manager,

National Insurance Co. Ltd, Opposite party

G.Muddappa complex, 1st Floor,

Vivekananda Road, Tumkur





ORDER






2. Through this complaint, the complainant prays for an order against the Opposite Party (hereinafter called as the OP for short) to award compensation of Rs.1,94,058/- alongwith interest at 12% per annum.



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

It is her grievance that, she is a R.C. owner of the Tempo Trax vehicle bearing Reg.No.KA-06-A-4680. The said vehicle was insured with the OP-company vide comprehensive policy No.603903/31/07/6300000953 and it was valid from 29-6-2007 to the mid night of 28-6-2008.



4. It is further submitted that, on 30-1-2008 vehicle was involved in an accident at 1.00 PM near Virudnagar to Madhurai Road and certain inmates of the vehicle had sustained injuries, besides the death of one person on the spot. The said vehicle was also damaged in the accident and damages have been mentioned in detail in the IMV report. It is further submitted that, subsequently, the complainant got repaired the vehicle in workshop at Tumkur and incurred heavy amount for repairs. They are as follows:

1. New National lorry booking office Rs.10,500/-

(For brining vehicle to the workshop)

2. Wiring fitting and DVD fitting Rs.1,150/-

3. Bombay Auto Garage Rs.37,200/-

4. Car Automobiles B’lore Rs.30,000/-

5. Car Automobiles B’lore Rs.11,500/-

6. Bombay Auto garage Rs.5,700/-

7. Paramount Diesels Rs.1,510/-

8. Premier Automobiles Rs.4,887/-

9. M.K.Radiators works Rs.5,000/-

10. H.S. Automobiles Rs.1,435/-

11. Preethipriya Automobiles Rs.1,426/-

12. Evershine Automobiles Rs.33,750/-

Total Rs.1,.44,058/-





5. It is further submitted that, the OP being the insurer of the vehicle had to indemnify the owner. Since the vehicle was insured with the OP, he had submitted the claim application alongwith all the relevant documents to the OP Company. But the OP inspite of its liability for payment of damages has refused to entertain the claim application by assigning the untenable and evasive reasons. Therefore, on 3-12-2008 the complainant got issued a legal notice to the OP. Inspite of the receipt of the notice, the OP did not settle the claim. However, the OP has given an evasive reply.



6. It is further submitted that, the complainant has suffered monetary loss and mental agony which is purely due to the deficiency of service on the part of the OP. In this regard, the complainant has claimed Rs.1,44,058/- towards repairs of the said vehicle and Rs.50,000/- as compensation for mental agony and other incidentals. Hence, this complaint.



7. The OP who has been notified of the complaint entered appearance through his counsel and resisted the same by filing his objections.



8. The gist of the written statement is as follows:

In the written statement filed by the OP, it is alleged that, the complaint is not maintainable either in law or on facts and same is liable to be dismissed. This OP while emphatically denying all the complaint averments as false and untenable, interalia admitted that, the complainant is the owner of the Tempo Trax bearing Reg.No.KA-06-A-4680 and the same was covered under policy No.603903/31/07/6300000953 with this OP. It is contended that, being parties to the contract they are bound by the terms and conditions of the policy. As per the said conditions the complainant was allowed to carry passengers as per RC seating capacity of 11 + 1 =12 persons at a time in the said vehicle. Since, as per the RC, the seating capacity is 11 + 1 = 12. It is further alleged that, as per the FIR at the time of accident the vehicle was loaded with 14 + 1 = 15 persons which is a clear violation and breach of contract of the insurance.



9. It is further alleged that, as per condition, the company shall not be liable under this policy in respect of;

“3. Any accidental loss or damages and / or loss liability caused sustained or incurred whilst the vehicle insured herein.

(a) Being used otherwise then in accordance with the “limitation as to use”.

In these circumstances, the claim of the complainant is against law and not sustainable. As such, they are forced to repudiate the claim.



10. In this regard, this OP had already intimated the same facts to the complainant on 22-9-2008. Under these circumstances, the complaint is devoid of merits and not sustainable. Accordingly, he prays for dismissal of the complaint.



11. In support of the case, the complainant and the OP have filed their affidavits. They have also pressed in to service of relevant documents. We have heard the learned counsels appearing for the parties. We have also examined the materials available on record.



12. The questions that arise for our considerations are:

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

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



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

Point No.1: Yes

Point No.2: As per order



REASONS



14. At the very threshold, we must point out that, from the contentions raised by the OP in repudiating the claim of the complainant, it is seen that, as there was a violation and breach of terms of contract, the complainant is not entitled to claim the repair charges. It is their contention that, at the relevant point of time, the vehicle was over loaded more than the capacity mentioned in the RC.



15. In the RC, it is seen that, the seating capacity of the vehicle was 11+1. This is substantiated through the documentary evidence also. The bone of contention of the OP is that, since the vehicle was loaded with 14 + 1 at the relevant point of time, there was a clear violation of the terms of contract. This contention does not appeal to us in the light of the observation made by the investigating agency at the time of conducting inquest mahazar.


That document though in Tamil language its translated version in English is filed. In so far the correctness of the translation version is concerned, there is no dispute. In the translated version, it is seen at column No.15 that, one Lakshminarayana Setty alongwith others hired the vehicle for tour and on the night of 30-1-2008 the vehicle met with an accident causing death of one person and injuries to other passengers. It reads as thus:

“XV. In this case of the death person Lakshmi Narayana Setty was residing at Badavana halli village, Madhugiri taluk, Tumkur district, he and his villagers purushothaman, Kantharaj, Veerabhadraiah, Ravi, Nagendran, Manjunath, Mahendran, Ravi kumar, Narasimhaiah, Ravi kumar altogether arranged one hired vehicle bearing registration No.KA-06-A-4680 – Tempo Trax Crusier for the purpose of tour at Kanyakumari on 28-1-08 from Madhugiri, during travelling time, on 30-1-08 at night about 1.20 hrs on Virudhunagar to Madurai National Highway, near Reliance Petrol bun, the said vehicle No.KA-06-A-4680 its driver being driven his vehicle with rash and negligent manner and hit against by the side of bridge happened the accident by its driver, as result of the ten passengers of the said vehicle No.KA-06-A-4680 were injuries due to the said accident and one Lakshminarayana setty sustained grevious injuries of his head, face and other injuries of body and died.



16. This document came into existence at a point, where there was no dispute between the parties. Further, the said document has been written by the investigating officer who had no ill-will or prejudice against any one. Therefore, from this document safely said, at the relevant point of time, there were 11 passengers in the vehicle. The OP who has contended the contravention of the terms of the policy should have placed better and cogent evidence to hold that, there was a violation of the terms of policy. Therefore, we find no merits in his contention.



17. The complainant has claimed a sum of Rs.1,44,058/- as repair charges which is substantiated through the documentary evidence produced by him. Therefore, when the vehicle in question had valid insurance policy at the relevant point of time, we are of the opinion that, the OP bound to make good of loss suffered by the complainant. The OP instead of honouring the legitimate claim of the complainant has repudiated the claim on flimsy grounds. This led to the complainant to issue legal notice and ultimately, to approach this forum for redressal. This situation certainly caused mental agony to the complainant. Therefore, it needs to be adequately compensated in terms of money. However, under the circumstance, we quantify the damages under the head of mental agony to Rs.10,000/-. In the result, we hold that the complainant is entitled for reliefs as more specifically mentioned in the order.



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



ORDER



The complaint is allowed in part with costs directing OP to pay a sum of Rs.1,44,058/- towards damages of the vehicle and Rs.10,000/- as compensation for mental agony to the complainant within 8 weeks from the date of this order, failing which, he shall pay interest on the said sum at 10% per annum from the date of accident. The cost of the proceedings is fixed at Rs.1000/-.

Mr.C.S. Ramamurthy,

No.60, 3rd Street,

Officers Colony, Metha Nagar,

Chennai – 29. …. Complainant



Vs.



National Insurance Company Ltd.,

Direct Agent’s Branch,

66, Greams Road Branch, Chennai-6,

Rep. by its Branch Manager, ……. Opposite Party





ORDER





1. The case of the complainant is briefly as follows:

The complainant had taken medi-claim policy from the opposite party on 05.12.2000. As per the requirements of the opposite parties, the complainant had furnished with the ECG report and blood test report from the reputed diagnostic laboratory. The opposite parties after satisfying with the reports furnished by the complainants the opposite parties had issued medi-claim policy for the period from 05.12.2000 to 04.12.2001 and sum insured was Rs.2,00,000/- . The complainant paid annual premium of Rs.3,817/-. As per the policy, the opposite parties had agreed to pay the complainant hospitalization expenses of medical or surgical treatment at any hospital in India for a sum not exceeding Rs.2,00,000/-.


The complainant in the 3rd week of February 2001 had breathing problem and had medical check up with Ms. Cardiac Medical and Research Foundation at a cost of Rs.200/- who in turn referred him to Appollo Hospital and was admitted in the hospital on 07.12.2001 and open heart surgery was performed on and he was in-patient in between 07.02.2001 to 23.02.2001 and incurred expenses of Rs.1,98,513/-. After discharge he made a claim for reimbursement of the medical expenses with the opposite parties on 24.01.2001.


But the opposite parties by letter dated 27.03.2001 repudiated the claim on the ground that the disease for the applicant treated was pre-existing disease. But, at the time of taking the policy there was no such disease even as per reports submitted to the opposite parties. The medi-claim policy was issued to him even after taking E.C.G. and blood tests report. So, the complainant is entitled to get refund of the amount spent for surgery and for taking treatment.

2. The opposite party filed version and contended inter alia that he availed medi-calim policy for the period form 05.12.2000 to 04.12.2001 for a sum insured of Rs.2,00,000/-. The complainant preferred a claim for Rs.1,98,513.51 P for treatment relating to Rheumatic Heart disease/Severe Mitral Stenosis for the period from 07.02.2001 to 23.02.2001, under the first year of the policy itself. The opposite parties after scrutinizing the discharge summary the nature of treatment , medical evidence and after receipt of opinion of medical expert Dr.K.Sriram, the claim was repudiated on the ground that the complainant was suffering a pre-existing disease which was excluded under the terms and conditions of the medi-claim in the insurance policy. Hence, there is no deficiency in service.

3. Proof Affidavits have been filed by both the complainant and the opposite parties. Exhibits A1 to A21 were marked on the side of the complainant. Exhibits B1 to B7 were marked on the side of the opposite parties.

4. The points that arise for consideration are as follows:

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

the opposite parties?.

2) To what relief the complainant is entitled to?

5. Point No.1: Admittedly, the complainant had taken medical insurance policy with the opposite parties for the period from 05.12.2000 to 04.12.2001. Ex A2 is the medi-claim insurance policy. Ex A3 is the premium receipt for paying the premium. The complainant before taking the policy had submitted ECG and blood tests report taking in the reputed diagnostic laboratory and on being satisfied with the reports the opposite parties issued medi-claim policy. The complainant underwent by-pass surgery in the Apollo Hospital and was in-patient from 07.02.2001 to 23.02.2001 and spent Rs.1,98,513.51 P. Ex A3 to Ex A9 are the receipts for payments.


He made claim with the opposite parties. Ex A11 is the claim form. The opposite parties by Ex A13 letter dated 27.03.2001 repudiated the claim under exclusion clause No.4.1 of the policy. The opposite parties filed Ex B1 medi-claim insurance policy. Ex B2 is the discharge summary wherein it was stated that the complainant had Rehumatic Heart Disease and therefore they referred the matter to the expert Dr.K. Sriram and repudiated the claim on the ground that the complainant had a pre-existing disease.


This argument of the apposite parties is not acceptable. The policy was taken on 05.12.2000 and after satisfying that the complainant was not suffering from any disease, the opposite parties issued the policy. Admittedly, they have perused ECG, and blood tests reports taken by the complainant from the reputed diagnostics centre. Therefore, the by-pass surgery performed on the complainant cannot be termed as pre-existing disease under clause 4.2 of the policy, which reads as follows:

“Any disease other than those stated in clause 4.3 contracted by the insured persons during the first 30 days from the commencement date of the policy. (It must be note that the nature of the disease suffered by the applicant had come to the knowledge of the applicant only in February 2001 while the policy itself was taken on 05.12.2000) This exclusion shall not however, apply if in the opinion of the panel of Medical Practitioners constituted by the Company for the purpose, the insured person could not have known of the existence of the disease of any symptoms or complaints thereof at the time of making the proposal for the insurance to the company “.

In the absence of any material evidence to show that the complainant had pre-existing disease at the time of taking the policy and as such the claim of the complainant was repudiated by the opposite parties is not acceptable. The non settlement of the medical claim by the opposite parties amounts to deficiency in service on the part of the opposite parties. The point is answered accordingly.

6. Point No.2: In the result, the complaint is allowed. The opposite party is directed to pay a sum of Rs.1,98,513.51P towards actual medical expenses incurred and Rs.10,000/- as compensation for mental agony and Rs.5000/- as cost of the complaint to the complainant within six weeks from the date of receipt of copy of this order, failing which the amounts shall carry interest at the rate of 9% per annum till the date of payment.

1. Kalaiselvi,

W/o. Late Velusamy.



2. Minor Kaviya Priya

D/o. Velusamy.



3. Minor Srinithi,

D/o. Velusamy.






4. Manickam,

W/o. Natarajan.

(All the complainants are residing at

5/11, Thathipalayam, Konur Post,

Namakkal Taluk & District, Tamil Nadu). .. Complainants.



/versus/

1. National Insurance Co. Ltd.,

74 A, Paramathi Road,

Namakkal Town,

Tamil Nadu.



2. National Insurance Co. Ltd.,

No.3, Middleton Street,

Kolkatta-700 071,

West Bengal.



3. Golden Trust Financial Services,

No.16, R.N. Mutherjee Road,

Kolkatta-700 001, West Bengal. … Opposite parties





This complaint coming on 26th day of August 2009 for final hearing before us in the presence of Thiru C. Thangaraju, Counsel for complainants and of Thiru K. Pandiyan, Counsel for the opposite parties 1 and 2 and of Thiru K. Rajasekaran, Counsel for the Opposite Party No.3 and the Opposite Parties set



exparte and after hearing of Complainants side and having stood over till this day for consideration, this Forum passed the following order:
ORDER




1. The crux of the complaint is : -

The Complainants are legal heirs of deceased Velusamy. The deceased Velusamy has taken Janatha Personal Accident Insurance Policy bearing No.100300/47/9600022/03/30064 of the Opposite Parties 1 and 2 through the 3rd Opposite Party for Rs.5,00,000/- for the period covering 23.05.2003 to 22.05.2006. On 13.02.2004 at about 1-00 while the deceased Velusamy was sleeping in the lorry bearing Reg.No.TN-28-H-2232 as additional driver was hit behind by one lorry bearing Reg.No. KA-01-AB-1780 and died on the spot and post mortem was conducted at Dharmapuri Government Hospital. The deceased’s wife the 1st complainant herein submitted the claim form through the 3rd opposite party to the 1st and 2nd opposite parties with all necessary documents.


But till date the claim has not been settled. The complainants had sent reminders on 23.04.2007 and 10.12.2007, the 3rd opposite party had sent a reminder letter to the 2nd opposite party and copy of the same was sent to the complainants. The complainants have alleged deficiency in service on the part of the opposite parties and has lodged this complaint to direct the opposite parties to settle the claim amount, to pay compensation and cost.

2. The complainants to prove their case has filed proof affidavit along with 11 documents and the same has been marked as Ex.A1 to Ex.A11.

3. The point for consideration is:-

Whether there is any deficiency in service on the part of the opposite parties and if so to what relief the complainants are entitled for?

5. POINT:- The deceased N. Velusamy has taken Janatha Personal Accident Insurance Policy bearing No.100300/47/01/9600022/03/96/30064 of the opposite parties 1 and 2 through the 3rd opposite party for Rs.5,00,000/- for the period covering 23.05.2003 to 22.05.2006. The copy of the said insurance policy has been produced and placed before us as Ex.A1 by the complainants. The receipt for payment of the insurance premium has also been marked as Ex.A8 by the Complainants. On 13.02.2004 while the deceased Velusamy was sleeping in the lorry bearing Reg.No.TN-28-H-2232 as additional driver was hit behind by one lorry bearing Reg.No.KA-01-AB-1780 and died on the spot. The driving license of the deceased N. Velusamy has been produced and placed before us







as Ex.A11. The Kariamangalam Police has registered case in Cr.No.64/2004 u/s. 279 and 304(A) of IPC and post mortem was conducted at Dharmapuri

Government Hospital. The copy of the FIR and Post Mortem Report has been placed before us by the complainants to prove the accident and subsequent death as Ex.A2. The complainants are legal heirs of deceased N. Velusamy. The legal heir certificate has been produced and placed before us as Ex.A5. The deceased’s wife the 1st complainant herein submitted the claim form through the 3rd opposite party to the 1st and 2nd opposite parties with all necessary documents. The copy of the claim form has been produced and placed before us as Ex.A1 by the complainants. But till date the claim not been settled. The complainants had sent reminders on 23.04.2007 and 10.12.2007, the 3rd opposite party had sent a reminder letter to the 2nd opposite party and copy of the same was sent to the complainants.


The said letter has been produced and placed before us as Ex.A9 and Ex.A10 by the complainants. But, inspite of all these efforts the opposites 1 and 2 have neither settled the claim nor has given any reply to the complainants regarding the fate of their claim application. The complainants have established and proved their case with all required documentary evidences. The opposite parties 1 and 2 ought to have considered the claim form of the complainants within a reasonable and should have settled the claim. The opposite parties 1 and 2 have not done so even inspite of reminders from the 3rd opposite party, who is the principal insured.


No deficiency in service can be attributed on the 3rd opposite party since he has promptly forwarded the claim form to the opposite parties 1 and 2 and has also taken all steps by writing reminders to the opposite parties 1 and 2. In this circumstances and in view of the above discussion we hold the act of the opposite parties 1 and 2 as deficiency in service coupled with negligence. The delay in settlement of the claim amount by the opposite parties 1 and 2 would have definitely caused mental agony to the complainants, who have already lost their head of the family and the complainant here are the widow and her minor children and as such they are entitled for compensation on account of mental agony.

7. In the result, the complaint is allowed and the opposite parties 1 and 2 are directed to settle the claim amount of Rs.5,00,000/- along with interest at the rate of 5% per annum from the date of claim i.e.30.03.2004 to the Complainants. The Opposite Parties 1 and 2 are further directed to pay a sum of Rs.5,000/- as compensation for mental agony and Rs.1,000/- as cost of this complaint to the complainants. The complaint as against the 3rd opposite party is dismissed. Time for payment one month from the date of this order.

COMPLAINANT (1) Smt Jyoti Wd/o. Panditrao Rahangdale

Represented by aged about 22 years, Occupation Agriculturist

Adv.Mukesh K.Borikar at Anjora Tah. Amgaon, Distt.Gondia

(2) Ritu Mani D/o. Panditrao Rahangdale

Aged about 15 years, Occupation –Nil

(Being Minor through her mother)



Both R/o. village Anjora,

Tahsil-Amgaon, Districit -Gondia



VERSUS



OPPOSITE PARTIES :- 1) National Insurance Company Ltd.,

Represented by Through Divisional Manager

Adv. Omprakash G.Methi Divisional Office XIV at 2nd Floor

Stearling Cinema Building, 65

Marzban Street, FORT , Mumbai-400001



2) Cabal Insurance Services Pvt. Ltd.,

Through it’s Manager

Office at 11, Daga Layout,

North Ambazari Road, Nagpur-440033



3 Tahsildar, Amgaon

Office at Amgaon(Tahsil Office)

Tahsil-Amgaon, District-Gondia




JUDGEMENT





Complainant filed the complaint against Opposite Parties for seeking various relief as per prayer clause :-

(1) Complainant’s case in short is that her husband was a agriculturist and owned about 1.27 H.R. of agricultural land at Mouza Anjora, District-Gondia. Hence he was beneficiary of Scheme Farmer’s Personal Accident Insurance Company under the scheme of Govt. of Maharashtra through Tahsildar, Amgaon (O.P.No.3). In this scheme if beneficiary died by any accidental death than O.P.No.1 is liable to pay Rs.1,00,000/- as insured amount.

(2) Complainant’s husband on dt. 18.06.2007 while running a Taxi from Sakharitola to Anjora he met with an accident and died on spot. On dt. 24.7.2007 complainant filed her claim under Farmer’s Personal Accident Claim Insurance Scheme before O.P.No.3 at Amgaon and the copy of the same was submitted to O.P.No.2 and O.P.No.2 forwarded it to O.P.No.1 vide Claim No.260600/47/07/9690001384 . O.P.No. 1 & 2 sent 3 reminder letters to complainant to submit all documents but O.P.No. 3 failed to submit all documents to O.P.No.1 . So O.P.No.1 closed the file of above claim due to non-submission of necessary documents.

(3) Complainant prayed to direct O.P.No.1 not to close the file of above Claim No.260600/47/07/9690001384 and also direct to release claim amount Rs.1,00,000/- with 18% interest and Rs.10,000/- as compensation Plus Rs.5000/- cost of the complaint.

(4) In response to the notice under Section 13 of Consumer Protection Act 1986, O.P.No.1 appeared and filed his reply (Exh.13). O.P.No.1 denied all allegations of complainant. O.P.No.1 submitted as per record, that complainant No. 1 submitted claim under the Farmer’s Personal Accident Insurance claim to O.P.No.3 along with all the necessary documents on dated 24-07-2007 , when Mr. Chandrabhan Khandait was the Tahsildar, Amgaon and copy of that was also submitted to O.P.No.2 and O.P.No.2 forwarded this copy to O.P.No.1 vide Claim No.260600/47/07/9690001384. But O.P.No.3 failed to submit all documents relating to the claim to O.P.No.1 or O.P.No.2. Therefore O.P.No.1 on dated 10.06.2008, 31-7-2008 and 10-8-2008 sent three reminder letters to the complainant No. 1 and there by asked her to submit all documents relating to the claim but the complainant already submitted all documents to O.P.No.3. But O.P.No.3 failed to submit all these documents to O.P.No.1. Hence due to non-submission of document O.P.No.1 closed the file of above claim.

(5) O.P.No.1 further submitted that vide it’s letter dt.10-8-2008, 31-7-2008 directed the complainant to send the “Visera” report copy to be authenticated by Medical Officer which too was not complied with, therefore petition against O.P.No.1 needs to be dismissed with cost.

(6) O.P.No.2 i.e. Cabal Insurance Services Pvt. Ltd. , Nagpur filed his reply (Exh 11) . O.P.No.2 submitted that since the role of O.P.No.2 is limited as an Insurance Consultant/Broker and by the decision of settlement of claim is taken by the policy issuing company i.e. National Insurance Company Limited on merit of each case O.P.No.2 enclosed one case law:-

Maharashtra State Consumer Dispute Redressal Commission, Mumbai Circuit Bench At Aurangabad, First Appeal No.114 of 2008 decided on 16-3-2009.

In this case Judgement passed against Cabal Insurance Company was quashed and set aside . O.P.No.2 reported to drop proceeding against him.

7 O.P.No.3 Tahsildar, Amgaon filed his reply (Exh.14) with three letters which was submitted to O.P.No.2 on dated 24-7-2007 Annexure-A and second Annexure-2 which was submitted on 29-01-2008 and third letter submitted to O.P.No.1 on 31-7-2008 as Annexure-C

8 On verifying all the records and hearing arguments of both the sides and all the opposite parties, only point arise for our consideration whether applicant is entitled for any relief as per prayer clause and our finding is in affirmative due to following reasons:-

REASONS



9 It is not disputed that deceased Panditrao @Kishor S/o Basiram Rahangdale was a farmer and who is husband of complainant. She is legal successor of Panditrao. At the time of accident he was owner of 1.27 H.R. Agricultural land hence he was a farmer. So his wife Smt. Jyoti Wd/o Panditrao Rahangdale was entitled for Farmer Personal Accident Insurance Scheme through O.P.No.3 who is Tahsildar of Amgaon Tahsil. Complainant submitted her claim under this scheme to O.P.No.3 with all documents. The Claim No. is 260600/47/07/9690001384 and copy of this claim was forwarded to O.P.No.2 by Tahsildar Amgaon by Letter No.अका/संकिर्ण/कावि/185/2007dated 24-07-2007. The O.P.No.2 vide their letter dated 30-07-2007 pointed out and demanded certain documents. By this correspondence it is clear that O.P.No.3 has taken action on the complainant’s application promptly.

10 O.P.No.3 again on dated 29-01-2008 and 31-07-2008 sent to all documents as demanded by O.P.No.2 vide letter No.73/08 and 523/08 respectively. So O.P.No.1&2 are deficient in their service by closing the file of complainant’s case, when all documents were submitted by O.P.No.3.

11 At the time of argument O.P.No.1 argued that while going through the post mortem report “Visera” report is not readable. Post Mortem report was supplied by Police Department to complainant, as it is not readable than there was no any fault of complainant. But it is clear on the record that her husband was died in a accident and holds 1.27 H.R. of lands. So by without going through the technicality of the case about “Visera” report complainant is entitle for the claim of Rs. 1,00,000/- .

12 Complainant has filed one case law of N.C.D.R.C. reported in 1(2000)CPJ 50 NC Smt. C.Rajeshwari Vs. L.I.C. of India and another But this case law is not applicable to the present case.

Hence we proceed to pass following order:-



ORDER



(1) Complaint is allowed.

(2) O.P. No. 1 is directed to pay Rs.1,00,000/- (Rs.One lac) to complainants within one month , from unless this amount will carry interest @ 12% per annum.

(3) O.P. is also directed to pay Rs.1,000/- as the cost of this complaint case.

Mrs. Gruschwitz Dorit M.J. .. )

R/at - Highrise, C - 1, No 1780, .. )

Khandala, Tal. - Maval, .. )

PUNE - 410 301 .. ) …COMPLAINANT

V/S

1. National Insurance Co. Ltd., .. )

General Manager of Issuing Office, .. )

Pimpri Divisional Office, .. )

Maharashtra Commercial House, .. )

Mumbai-Pune Road, Pimpri, .. )

PUNE - 411 018 .. )

2. National Insurance Co. Ltd., .. )

Branch Manager, D-40, .. )

Bombay-Pune Road, .. )

Gavali Wada, Lonavala, .. )

PUNE - 410 401 .. ) …OPPONENTS










** J U D G M E N T **

(27/9/2007)

This is the complaint filed by the complainant Mrs. Grushwitz Dorit M. J. against the opponents General Manager and Branch Manager of National Insurance Co. Ltd.

The brief facts of the complaint are as follows,

The complainant is the mediclaim policy holder of the opponent insurance company vide policy no. 271002/48/03/8500424 issued on 19th March 2004 for the period from 19/3/2004 to 18/03/2005 for the sum insured Rs. 3,00,000/-, thereafter the complainant has renewed that policy in the second year 2005-06 and 2006-07 by paying premium. According to the complainant, as per the mediclaim policy, health check-up i.e. medical examination was done by the concerned authority and the complainant was found medically fit and eligible for the said policy.


It is contended by the complainant that, she was admitted first time in Jahangir hospital on 7/9/2005 for severe acute pain and after due investigation the doctors come to the conclusion that the complainant had tuberculosis of lumber vertebra, which is of acute origin and acute tuberculosis infection of two to three weeks origin, therefore she was under treatment in Jahangir Hospital from 7/9/2005 to 17/10/2005 as an indoor patient. According to the complainant thereafter she lodged the mediclaim with the opponent, but the opponent rejected the claim of the complainant on 15/12/2005, stating the treatment related to pre-existing disease as per exclusion clause no. 4.1. Hence

the complainant filed the present complaint before this Forum asking an amount

of Rs. 3,40,774/- alongwith interest @ 18% p.a. and cost and compensation.

The complainant alongwith the complaint has filed her affidavit in support of the complaint and the documents with list, which includes, copy of insurance policy, letter of repudiation dtd. 15/12/2005, copy of medical certificate dtd. 17/10/2005, copy of bill dtd. 17/10/2005 and report of Dr. Amrut Oswal dtd. 23/12/2005.

The Forum sent notice to the opponent and the opponent appeared and resisted the complaint by filing written statement. According to the opponent, the repudiation of the mediclaim is on the point of breach of policy terms and conditions and hence it can not be said as deficiency in service. According to the opponents, the complainant was suffering from pre-existing disease, hence the said claim was repudiated. With these contentions the opponent denied most of the contentions of the complainant.

The opponents have filed affidavit of Mrs. R. Sivahambika in support of their written statement.

The complainant filed rejoinder-affidavit denying the contents of the written statement of the opponents.

Both the sides filed their written notes of argument. The Forum has gone through the entire record produced by both the sides. The points for consideration and determination before the Forum are as follows,

POINTS FINDINGS

1. Whether opponent committed deficiency in :

service by repudiating mediclaim of the :

complainant? : Yes

2. What order? : As per final order

REASONS FOR FINDINGS

Admittedly the complainant is the mediclaim policy holder of the opponent insurance company and admittedly she was hospitalised in Jahangir hospital on 7/9/2005 and discharged on 17/10/2005 and was under treatment of Dr. Amrut Oswal, M. S. (Ortho) D.(Ortho), Consultant and Orthopedic Surgeon of Jahangir hospital and thereafter when she lodged the claim with the opponent, the opponent repudiated the claim on the ground of pre-existing disease as per exclusion clause no. 4.1. The opponent is relying on the discharge summary of Jahangir Hospital, which states, the patient was having mild low back pain since 2 to 3 years and therefore the opponent repudiated the claim of the complainant.

The complainant alongwith the complaint has produced the certificate of Dr. Amrut V. Oswal, M. S. (Ortho) D (Ortho), Consultant Orthopaedic surgeon, as well as his affidavit, which states as follows,

"I issued certificate dtd. 23/12/2005 in the name of

Mrs. Dorit Maria…………….. in which I wrote that

she had tuberculosis of lumber vertebra, which is

in any way not related to her back ache. This was

of acute origin & acute tubercular infection of two

three weeks origin.

In my opinion tuberculosis can not be existing for

many years. She had back ache for six to seven

years. Tuberculosis of spine is not related to this

back ache. This disease is of separate infective

origin of acute duration of three to four months."

After going through the opinion of an expert doctor, it is crystal clear that the disease or ailment suffered by the complainant was not at all the 'Pre-Existing disease'. The opponent without investigating the matter of the complainant repudiated her claim only relying the past history given in the discharge card, which is not at all sufficient to prove the pre-existing disease. The Forum is relying on the following decision of Hon'ble National Commission.

III (2004) CPJ 165

“United India Insurance Co. Ltd

V/S

Mehenga Singh”

“Consumer Protection Act, 1986 ---Section 15—Insurance

--Repudiation of claim – Contention, deceased suffering

From chronic renal failure before 2 years of taking the

Policy not acceptable in absence of evidence in support

--Person who is suffering from kidney trouble for last 2

Years will definitely take some treatment –CASE HISTORY

NOT SUFFICIENT TO PROVE EARLIER DISEASE –

Allegation not proved in absence of doctor’s affidavit—

Company is liable under the policy.”

Considering the affidavit of an expert doctor, Dr. Amrut V. Oswal, M. S. (Ortho) D (Ortho), Consultant Orthopaedic surgeon and the decision of Hon'ble National commission, the Forum is of the view that the opponent failed to substantiate their contention regarding the complainant was suffering from pre-existing disease and further is of the view that they repudiated the claim of the complainant on wrong ground, which resulted into deficiency in service under section 2(1)(g) of the Consumer Protection Act, 1986. Hence we answer our issue no.1 as affirmative. The complainant is entitled to get her amount of mediclaim policy.

The complainant alongwith the complaint has produced the copy of final bill of Jehangir Hospital amounting to Rs. 3,40,774/-. The Forum is of the view that the complainant is entitled to get the amount of sum insured i.e. Rs. 3,00,000/- with interest @ 9% p.a.

It is settled principle of law that when interest is allowed, no separate compensation needs to be awarded. (See the decisions in Skipper Bhavan V/S Skipper Scales (Pvt) Ltd. I (1995) CPJ 210 (NC); M/s Ketan Consultants Pvt. Ltd. V/s Sanjiv Bansod & Anr. - I (2000) CPJ 24 (NC).

Considering the facts and the circumstances and the entire record we pass the following order.

** O R D E R **

1. Complaint is allowed. Opponent, National

Insurance Co. Ltd. is directed to pay the amount

of sum insured Rs. 3,00,000/- (Rs. Three Lacs

only) to the complainant alongwith interest @

9% p.a. from the date of filing the complaint till

its realisation, within 6 weeks from the date of

receipt of copy of the order.

2. Opponent is further directed to pay an amount

Rs. 500/- (Rs. Five Hundred only) to the complainant

towards cost for filing the complaint, within 6 weeks

from the date of receipt of copy of the order.

3. Copies of this order be sent to the parties free of cost.

Shri Devender Sharma,

S/o late Sh. M.R. Sharma,

R/O Ningan Cottage,

Near Balraj Sahani Estate,

Chakkar, Shimla-5.



… Complainant.

Versus





1. M/S Goyal Motors Pvt. Ltd.

Authorised Maruti Dealers, A-901, Tara Devi, Shimla-10, through its Managing Director.



2. National Insurance Company Ltd. Through its Divisional Manager, Himland Hotel, Circular Road, Shimla-171001



…Opposite Parties.





O R D E R:

This 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-03B-0667, which was purchased by him from OP No.1, and insured with the OP No.2. He further alleged that the aforesaid vehicle met with an accident, hence, was handed over to the OP No.1 for carry out repairs, who assured the complainant that the vehicle would be repaired within a week and would be handed over immediately after completion of the repairs, hence the surveyor appointed by the OP No.2-Company also submitted his report to the OP No.2-Company. The complainant further proceeded to aver that the work was completed on or before 19.07.2007, but the vehicle was not delivered to him, unlawfully and illegally, by OP No.1, till 02.08.2007, for which he suffered huge financial loss. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP No.1, in its written version, to the complaint, contended that no assurance was given to the complainant that the vehicle would be repaired within one week. Thereafter, the surveyor appointed by the OP No.2-Company gave assessment of repair at Rs.10,176/-but in the mean time repair work was carried out and invoice dated 19.07.2007 for Rs.21,458/- was made, out of which the OP No.2-Company was prepared to pay only Rs.10,176/- and the remaining amount of Rs.11,282/- was to be paid by the complainant. The complainant paid the balance amount on, 02.08.2007 and took delivery on same date, hence no deficiency in service can be attributed on the part of the OP No.1. The OP No.2-Company also filed reply and denied the allegations as leveled against it.

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

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

5. The vehicle of the complainant met with an accident during the currency of the insurance policy, purchased by him, from the OP No.2-Company. The afflicted vehicle was parked at the workshop of the OP No.1 for carrying out necessary repairs. The OP No.1 does not deny the fact of the vehicle having been completely repaired, on, 19.07.2007. The complainant, is, aggrieved by the fact that when the OP No.1 had completed the repairs on, 19.07.2007 and when on that day, he, was willing, to, pay his part of his financial liability towards the expenses incurred by the OP in repairing the vehicle, the act of the OP No.1, in, refusing to deliver the vehicle to him, on, that day, itself resulted in monetary loss to him, to, the extent, as, detailed in the complaint, which, he, urges, us, to be ordered to be indemnified to him, by, the OP No.1.

6. The OP No.2, who, had come to be impleaded as a party, has contended in its reply that it had on the date when the OP No.1 completely repaired the afflicted vehicle of the complainant, had tendered to the OP No.1, its, part of financial liability towards the expenses incurred by the OP in repairing the vehicle as envisages under the insurance cover. Annexures R-2 & 3, has been placed on record in proof of the OP No.2 having tendered to, the OP No.1, its, part of its financial obligation under the insurance cover purchased from it by the complainant. It appears, hence, the remaining amount as per, the, bill of repairs comprising a sum of Rs.11,282/- was to be paid by the complainant to the OP No.1.


Even though, the complainant canvasses before, us, that, on, the day when the OP No.1 completely repaired his vehicle, i.e. on, 19.07.2007, he, was ready and willing to pay his part of the financial obligations as ordained by the insurance cover, yet, the OP No.1 untenably refused to deliver the vehicle and come to ultimately deliver to him on 02.08.2007. In proof of willingness to defray the requisite amount, as required to be paid by him to the OP No.1, he, has relied upon the copy of the daily diary report, lodged by him with the concerned Police Station, narrating, the, fact of OP No.1, not, delivering the vehicle, to, him despite his willingness to pay the amount as desired by it. Besides, the copy of the daily diary report, the complainant has not adduced any evidence existing, in, the shape of the sworn affidavit of any person accompanying the complainant at the time.


when the purported refusal to deliver the vehicle was made to him by the OP No.1, hence, absence of proof in corroboration of the daily diary report, as also, when the complainant could take recourse to making a complaint before the concerned Police Station against the OP No.1, for their purported refusal to deliver the vehicle to him, despite, his willingness to defray his share of expenses incurred by the OP No.1, for, repairing his vehicle, it is, enigmatic as, to, what precluded him from, also, not taking steps, other than visiting the OP No.1 and demonstrating his willingness to tender the amount on 19.07.2007, or materialize his offer by means other than by way of his willingness tender to the OP the amount comprising his share of the expenses incurred by the OP in repairing the vehicle, either, by depositing money in the bank account of the OP No.1 by electronic means or by even dispatching them by post a demand draft comprising, his, share of the expenses incurred by the OP No.1, in, repairing the vehicle.


The willingness, is, merely an in choate act it as to culminate in an overt act manifesting by actual tender, hence, assuming that there, was, mere willingness, it cannot, take the place or actual tender, in proof, whereof, no evidence exists on record, rather, when proof exists of actual payment having been made only on, 02.08.2007, on which date the vehicle was delivered to him. A draft comprising a sum of Rs.1270/- in the name of the insurer, cannot be construed to be payment to the OPs. Therefore, the complaint being merit less and without any substance is liable to be dismissed.

7. Resultantly, the complaint being merit less deserves dismissal and we order accordingly. However, parties are left to bear their own cost. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Parvesh Sharma aged 36 years S/O Kuldip Raj Sharma , Prop. Of M/S K.M. Unique Autos, G.T. Road , Near Old Bus stand , Talwara , Distt. Hoshiarpur (Punjab).


........... Complainant

versus

1.

The National Insurance Co. 35-D-24, G.T. Road, Mukerian, Distt. Hoshiarpur , Punjab through its Manager.
2.

The National Insurance Co., Phagwara Road, Hoshiarpur through its Divisional Manager.


.............. Opposite Parties




1.

The complainant namely Parvesh Sharma, Proprietor of M/s. K.M. Unique Autos, Talwara, has filed the present complaint, under section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the complainant is insured for Rs. 14 ,00,000/- for the period 14.09.2007 to 13.09.2008. It is further the case of the complainant that he also got insured the building for Rs. 5,00,000/- and other stock for Rs. 14000/- through policy No. 401506/11/07/3400000270.
2.

It is the allegation of the complainant that on 04.7.2008 due to heavy rain in Talwara , the outer wall of the M/S K.M. Unique Autos, demolished and heavy rain water entered in the building premises due to which he suffered a loss amounting to Rs. 77481/-, out of which Rs. 56580/- had been spent for the reconstruction of the wall on the direction of the agent of OP No.1. The complainant lodged the claim with OP No.1 and also fulfilled the requisite formalities.
3.

It is further the case of the complainant that OP No. 1 paid Rs. 5900/- as full and final settlement and refused to pay the balance amount. Legal notice was served, but of no consequences. That OP NO.1 has failed to reconsider and settle the claim , hence this complaint.
4.

The OPs filed the joint reply . The preliminary objections vis a vis jurisdiction, non-joinder of necessary parties and locus standi were raised. On merits, the averments contained in the reply were denied. It is replied that the claim in question has already been settled for Rs. 5980/-, per survey report of Sh. M.LMehta dated 26.1.2009. The payment of Rs. 5980/- has also been made to the complainant through cheque No. 191763 dated 30.03.2009, payable at State Bank of India, which has been received by the complainant, without any protest, as full and final settlement of the claim.
5.

It is further replied that the insured of the replying OP is M/S K.M. Unique Autos, Talwara, whereas the present complaint has been filed by SH. Parvesh Sharma, who is not the insured of the replying OP. However, it is admitted that due to heavy rains the boundary wall of the building of complainant got damaged and intimation to this effect was given to the replying OP. It is denied that the complainant suffered a loss of Rs. 56,580/- .


That Sh. M.L. Mehta was deputed to assess the loss and as per report, the boundary wall suffered damaged to the tune of Rs. 20,775/- and after applying average and excess clause of the Insurance Policy, the claim payable comes to Rs. 5980/-, which was paid to the insured firm and was accepted without protest. It is stated that as per survey report, the wall of the insured firm which got damaged on 4.7.2008 was made of bricks, cement , sand and Bajri whereas the complainant is seeking damage for construction of the RCC wall . The cost of RCC wall is much more than wall of bricks, hence the insured firm is not entitled for compensation of RCC wall.
6.

In order to prove the case, the complainant tendered in evidence affidavit Ex.C-1, insurance policy alongwith certificate Mark C-2, certificate by Sarpanch MarkC-3, estimate loss Mark C-4, estimate for RCC walls Mark C-5, list of tolls Mark C-6, stock statement Mark C-7, photographs Mark C-8 to C-14, newspaper clipping Mark C-15,C-16, legal notice dated 13.3.2009 Mark C-17, reply to notice dated 30.6.2009 Ex. C-18, bill dated 4.9.2008 Ex. C-19, copy of income tax return Mark C-20 and closed the evidence.
7.

In rebuttal, the OPs tendered in evidence affidavit of A.S.Kohli Ex.OP-1, of M.L.Mehta Ex.OP-2, survey report dated 26.1.2009 Ex.OP-3 and evidence of the OPs was closed by the order of the Forum on 10.9.2009.
8.

Ld counsel for the parties have filed written arguments . We have gone through the written submissions and record of the file minutely.
9.

The OPs have raised the preliminary objection no.1 that the claim in question had already been settled for Rs.5980/- and the payment has also been made , hence, there is no deficiency in service on the part of the OPs.
10.

The complainant vide para no.6 of the complaint has admitted that approximate amount of Rs.5900/- has been received in full and final settlement . The relevant portion of para no.6 of the complaint is reproduced as under:

“ The OP No.1 have paid to complainant (approximately)

Rs. 5900/- as full and final settlement and refused to

pay rest of the amount as per the bills and estimated

loss deposited with OP NO.1”

10.

Ld. Counsel for the complainant submitted that the amount of Rs.5900/- as stated in para no.6 o the complaint has not been received as full and final settlement of the claim as OP No.1 has refused to pay rest of the amount as per the bills and estimated loss submitted to the Insurance Company.
11.

Now the only point which calls decision from this Court is whether approximate amount of Rs.5900/- has been received by the complainant as full and final settlement? The answer to this is in the affirmative.
12.

The careful perusal of para no.6 of the complaint makes it clear and leaves no doubt in the mind of this Court that the complainant has admitted that approximate amount of Rs.5900/- has been received as full and final settlement of the claim. It is not the case of the complainant that said amount has been received under protest. The grouse of the complainant is that OP No.1 has refused to pay the balance amount as per the bills and estimated loss submitted to the Insurance Company but this plea is not available to him as amount of Rs.5900/- has been received by him as full and final settlement and there is nothing on the record to prove that approximate amount of Rs.5900/- has been received under any protest.
13.

Now it is established on record that the complainant had received the amount of Rs.5900/- in full and final settlement of the claim from the opposite parties . Further, there is no allegation of fraud, undue influence or misrepresentation from the side of the complainant. It means that the said receipt/ discharge voucher amounting to Rs.5900/- had not been obtained by the opposite parties from the complainant by exercising fraud, undue influence or by misrepresentation. It is also proved that the complainant while receiving the said amount gave a clean discharge to the opposite parties without any qualification, signifying its receipt in full and final settlement of the claim. Reliance placed on 2006, CTJ , 1065( Supreme Court)(CP) National Insurance Company Ltd. vs. Nipha Exports Pvt. Ltd.
14.

Now, the next question to be considered is as to whether after giving a clean discharge receipt by accepting the amount of Rs.5900/- and signing the voucher, the complainant can maintain the present complaint. The answer to this is in the negative. As already noticed, the payment of Rs.5900/- has been made by the opposite parties to the complainant and the complainant gave a clean discharge to the opposite parties without any qualification and in token thereof issued the receipt in full and final settlement of the claim, therefore, the present complaint is not maintainable.
15.

Since, the complaint is liable to fail on this sole ground discussed in para supra, therefore, it will be a vain attempt to go into the other aspects of the matter on merits, consequently , it is held that the present complaint is not maintainable. It is also proved that there is no deficiency in service on the part of the opposite parties, with the result, the complaint is dismissed. No order as to costs. Copy of the order be sent to the parties free of cost. File be consigned to the record.

Gurdeep Singh son of Sh. Dapinder Singh, resident of Talwandi Gate, Raikot, Ludhiana.

(Complainant)

Vs.



1. The National Insurance Co. Ltd. Division XV, Rabindra Sarani, Pooddar Court, Gate No.4, 6th Floor, Kolkata-700 001, through its Divisional Manager.



2. The National Insurance Company Ltd. Divisional Office No.1, Dhuri Railway Lines, Attam Park, Ludhiana.



3. M/s Magma Leasing Ltd. Savitri Complex, G.T. Road, Dholewal Chowk, Ludhiana through its Manager.



4. M/s Magma Leasing Limited, SCO 317-318, 1st Floor, Sector 34-B, Chandigarh through its Manager.



5. M/s Magma Leasing Limited, Moga through its Manager.

(Opposite parties)








O R D E R


1. After obtaining finance from opposite parties no.3 to 5, complainant purchased a second hand truck bearing registration no. PB-05-G-9943 from Sh. Balbir Singh. He got the truck insured from opposite parties no.1 & 2 vide policy no.150100/31/00/6300000959, valid from 1.4.2006 to 31.3.2007. The truck was stolen on 14.2.2007, qua which lodged FIR no.28 dated 14.2.2007 in P.S. Raikot but the police failed to trace the same. Opposite parties no.1 & 2 were approached time and again to settle his insurance claim, but they failed to make payment to the complainant or his financer opposite parties no.3 to 5. Consequently, in this complaint under section 12 of the Consumer Protection Act, 1986, sought direction for deficiency in service by opposite parties no.1 & 2 to pay him insurance claim of Rs.5,00,000/- for which the vehicle was insured and settle his claim.

2. Opposite parties no.1 & 2 admitted obtaining insurance of the truck by the complainant and lodging the insurance claim after theft. But claimed that there is no deficiency in service on their part. As, on receipt of the claim same was forwarded to opposite parties no.3 to 5 for processing the same and engaging surveyor to look into the matter. Matter remained pending with opposite parties no.3 to 5 who were in communication with the complainant. Complainant failed to furnish the documents required to process the claim, so, the claim could not be processed and settled. Qua it, letter dated 23.9.2008 for supplying documents was written to the complainant and on their application the Fora vide order dated 22.10.2008 directed the complainant to supply the documents but he failed to supply the same. Hence, there is no deficiency in service on their part.

3. Opposite parties no.3 to 5 by way of separate reply claimed that complainant had been plying the vehicle for commercial purpose, so, not entitled to file the complaint. He has no locus standi to institute the complaint and is estopped by his act and conduct. Releasing loan for purchase of the truck to the complainant is conceded and that he was bound by loan agreement.

4. Parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

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

6. It is admitted that claim so lodged by the complainant with the opposite parties no.1 & 2 has not been settled. For non settling, defence of OP-Insurance Company is non compliance of their letter dated 23.9.2008 (Ex.R.2). Under that letter, opposite parties no.1 & 2 required complainant to furnish the following documents:

1) Original FIR and Police Final Report

2) Claim Form duly filled up by you.

3) Intimation letter to RTO/DTO.

4) Original Registration Book, Fitness Certificate and Tax Token.

5) NCRB Report.

6) 2 Nos. of Ignition Key

7) Letter of Subrogation.

8) Form No.29, 30, 35 from the R.T.O./D.T.O. (duly Filled)



7. Subsequently during trial, an application was moved by the opposite parties no.1 & 2 directing the complainant to supply all those documents. Fora vide order dated 22.10.2008 required the complainant to supply the documents as mentioned in the application of the opposite parties no.1 & 2 but he failed to do the needful.

8. At the time of arguments, it was pointed on behalf of opposite parties no.1 & 2 that once documents sought under letter Ex.R.2 are made available, they will settle the claim.

9. In view of such aspects, we allow this complaint and consequently direct complainant to make available the documents to opposite parties no.1 & 2 as mentioned in letter Ex.R.2. Whenever such documents are made available, opposite parties no.1 & 2 shall acknowledge the same in writing by giving receipt to the complainant. Then the opposite parties no.1 & 2 shall decide the claim of the complainant within 45 days of the receipt of such papers from the complainant. In peculiar circumstances, we leave the parties to bear their own costs.

1. Darshan Kumar Saluja proprietor of M/s Khurana Fabrics 6147/E, new Kidwai Nagar, Hargobind Nagar, Ludhiana.



2. M/s Khurana Fabrics, 6147/E, New Kidwai Nagar, Hargobind Nagar, Ludhiana through its prop. Sh. Darshan kumar Saluja.

(Complainants)

Vs.



National Insurance Company Ltd. Branch Office No.5, Gill Road, Miller Ganj, Ludhiana, through its Branch Manager.

(Opposite party)






O R D E R




1. This complaint has chequered history. The complaint was initially decided by the Fora vide order dated 25.3.2002 dismissing the complaint, requiring complainant to approach the Civil court, if feels not satisfied with the order. Order of the Fora was reversed by the Hon’ble Union Territory State Consumer Disputes Redressal Commission, Chandigarh, to which the case was transferred for disposal. Hon’ble Union Territory State Consumer Disputes Redressal Commission, Chandigarh, vide order dated 1.8.2008 set aside the order of the Fora, directing the Fora to decide the case afresh after giving opportunity to both the parties, by concluding that the dispute can be settled by the Fora and no need to refer the same to the Civil Court.

2. Be it stated that on receipt of order of the Hon’ble U.T. Commission, Chandigarh, it was disclosed that the original record of the complaint has been destroyed. Therefore, the file was reconstructed and when both the parties consented that file has been reconstructed completely, they were heard through respective counsels.

3. Briefly stated, case of the complainant was that complainant no.1 being proprietor of complainant no.2 obtained two Fire Insurance Policies from the opposite party against its finished, unfinished stock and raw material. First policy was for Rs.4,00,000/- valid from 7.10.1997 to 6.10.1998 and the second policy was for Rs.9,00,000/- valid from 18.12.1997 to 17.12.1998. Under the policies all kinds of raw material, finished and unfinished goods were covered. Unfortunately, on 28.5.1998 at about 3 p.m. fire broke out in the factory premises of complainant no.2 due to electric short circuit. On receipt of telephonic information, complainant no.1 reached factory, intimated fire brigade, who came and extinguished the fire after three hours.


Intimation to Police Station Division no.2 was given. Fire caused loss of Rs.4,55,831/-. Intimation was also given to opposite party who appointed M/s Kapoor & Company Surveyor & Loss Assessor to assess the loss. Surveyor visited the premises, took photographs, but heard nothing from the opposite party despite lapse of long period. Hence, filed the complaint. Written reply in that complaint was filed by opposite party and through which it came to known that they had deposited Rs.50,400/- as full and final settlement through cheque dated 29.4.1999 in his bank account. But he was never intimated by them. Nor any voucher was got executed regarding receipt of such payment.


He had never authorised the bank to receive compensation under the policy on his behalf. Opposite party malafidely deposited amount in his account without intimation to him. But the Fora decided that amount as deposited in account of the complainant was not full and final settlement and assessment by the surveyor of the opposite party was made without applying his mind. That assessment was set aside, with direction to opposite party to appoint a new surveyor for settlement of the claim within three months. Subsequently, received letter dated 29.11.2000 from opposite party intimating that they had no liability except for the amount of Rs.50,400/- which has been already paid to bank of the complainant.


Thus, it came to his notice that opposite party appointed new surveyor M/s Consolidate Surveyors (P) Ltd. who recommended loss of Rs.50,489/- only. That surveyor never visited his premises, nor checked record. Appointment of such surveyor was an eye wash. Second surveyor acted at his own whims. Second surveyor also assessed loss at Rs. 62,050/- as was assessed by the first surveyor M/s Kapoor & Company. Also that second surveyor never applied his mind. Such report is also arbitrary, who wrongly assessed the loss. In fact, loss suffered by the complainant due to fire was Rs.4,55,831/-, so, is entitled for this amount with 12% per annum interest along with damages of Rs.10,000/-on account of deficiency in service by opposite party.

4. Opposite party in reply claimed that complaint is not maintainable, complainant is estopped by act and conduct to file the complaint, which is bad for mis joinder and non joinder. However, obtaining two policies by the complainant is conceded. Damage by fire is denied for want of knowledge. Complainant never suffered loss on account of such fire. But he lodged the claim. Consequently M/s Kapoor & Company surveyors were appointed. Complainant failed to co-operate with the surveyor by furnishing the documents. Surveyor assessed the loss at Rs.50,500/- which was settled, paid and accepted by the complainant. There is no deficiency in service on their part. As per directions of the Fora, new Surveyor was appointed and on receipt of report of the surveyor, claim was settled amounting to Rs.50,489/-, and the amount as found due by second surveyor had already been paid and no further payment was due to the complainant. Complaint deserves dismissal.

5. Parties led their evidence by way of affidavits and documents in support of their respective contentions.

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

7. It is contended on behalf of the complainant that the total loss to the insured goods was to the tune of Rs.4,50,000/- and claim so lodged with the opposite party has wrongly and illegally been rejected. Complainant was able to prove such loss from material produced before M/s Kapoor & Company Surveyor & Loss Assessor engaged by the opposite party. But he ignored the same and also wrongly applied average clause, to assess the total damage. Second surveyor engaged on directions of the Fora M/s Consolidated Surveyors Private Ltd. made no independent assessment and simply based on report of first surveyor M/s Kapoor & Company. Therefore, second report is untenable. It was contended that the opposite party fabricated receipt qua full and final payment and without intimating to the complainant deposited part of the amount in his bank account, without intimation.

8. On the other hand, it is argued by the ld. counsel for the opposite party that the complainant equited opposite party after receipt of Rs.50,500/- as full and final claim, so, he is estopped from filing he complaint and claim more amount. The amount as assessed by second surveyor engaged by the opposite party has rightly and legally been paid to the complainant and he is not entitled to any further amount. As damage or loss was to the machinery and not to the finished or unfinished goods or raw material stock, which only was insured and not machinery and plant. Surveyor had taken all documents in consideration and arrived at just conclusion on the basis of the material to assess the total loss to the insured goods of the complainant. Resultantly, complaint deserves dismissal.

9. We have considered rival contention of the parties and gone through the record.

10. Be stated that opposite party after engaging surveyor paid Rs.50,500/- to the complainant out of his two policies of Rs.13,00,000/-. Though the complainant had sought in the claim form, claim of more than Rs.4,50,000/- qua insured goods destroyed by fire. We make it clear outrightly that both the surveyors engaged by the complainant have not at all disputed or denied breaking out of fire in the premises of the complainant, damaging insured goods. The question is to what extent damage to the insured goods of the complainant was caused.

11. After lodging of the insurance claim with the opposite party, they engaged M/s Kapoor & Company surveyor & Loss Assessor who submitted the report dated 27.2.1999 Ex.R.1. After inspecting the premises of the complainant and physically verifying the stock, going through stock register, documents and vouchers, found that stock worth Rs.14,36,360/- was lying safe in the factory, after fire. Had assessed loss of Rs. 62,050/- to the insured goods of the complainant.


But by applying average clause assessed, total loss of Rs.50,000/-. This amount of Rs.50,500/- was not directly paid by the opposite party to the complainant. Rather, they deposited the same in the bank account of the complainant and obtained receipt from the Bank Manager qua such payment. Thus, in such circumstances, food for thought is whether the payment by depositing compensation in the bank account of the complainant would amount to payment to the complainant.

12. Such like matter, whether payment made to the bank behind the back of the insured is a payment, came to be considered by the Hon’ble National Commission in case reported in II (1999) CPJ 34 (NC) titled as Branch Manager, New India Assurance Company Limited. Vs. M/s Vimal Through its Proprietor, Vikramaditya Pal. In that case, it was held that payment made to the bank by the insurance company would not amount to payment of the insurance claim as full and final settlement. Similar is the situation in the instant case.

13. The next document relied by the opposite party that complainant received Rs.50,500/- as full and final settlement of the claim is the receipt Ex.R.4 executed by the complainant in favour of the opposite party. But rightly contended by ld. counsel for the complainant that his client was made to sign blank form/papers by the opposite party which converted into receipt Ex.R.4 as full and final receipt of compensation from the opposite party. This receipt is dated 27.1.1999 vide which complainant received Rs.50,500/- as full and final payment of this claim from the opposite party. How, on 27.1.1999 opposite party was able to assess this amount and obtain receipt from the complainant, we are totally baffled and unable to decide. Because, opposite party had engaged M/s Kapoor & Company Surveyor & loss Assessor who submitted report dated 27.2.1999.


It was in that report that a sum of Rs.50,500/- was held payable by the Insurance Company to the complainant being loss to the damaged goods on account of fire in his premises. The report is dated 27.2.1999. Whereas receipt Ex.R.4 is dated 27.1.1999. It means, it was obtained one month earlier to submission of assessment report by surveyor of the opposite party. It leads us with confident conclusion that this document Ex.R.4 stands fabricated by the opposite party and contention of the complainant appears right that his signatures were obtained on blank form by the opposite party.


It appears that this blank form Ex.R.4 containing signatures of the complainant was converted into receipt later on by the opposite party. Because, on 27.1.1999, report of the surveyor had not seen the light of the day, which took birth on 27.2.1999 i.e. after one month of execution of the receipt. Therefore, this acceptance Ex.R.4 can not be read against the complainant nor we can conclude that he accordingly stand prohibited and estopped from filing the present complaint.

14. Hon’ble Supreme Court in case United India Insurance Vs. Ajmer Singh Cotton & General Mills & ors. reported in II 91999) CPJ 10 (SC) has held that mere execution of the discharge voucher would not deprive a consumer from preferring the claim with respect to deficiency in service. In the instant case also receipt qua discharge voucher was obtained by way of fraud from the complainant so is of no consequence.

15. Where signatures of the insured were taken on blank papers, it was held by Hon’ble Haryana State Consumer Disputes Redressal Commission, Panchkula in case United India insurance Co. ltd. and another Vs. Varinder and Narender reported in 2007 (1) CPC, 341 , that it would not amount to consent for settlement of the claim.

16. We would not be doing justice, in case we fail to refer second report of the surveyor Ex.R.5 of M/s Consolidated Surveyors. No doubt, second surveyor was engaged by the opposite party after this Forum intervened in the matter. But suffice to say that second surveyor submitted report Ex.R.5 dated 16.11.2000. Though damage due to fire was caused on 28.5.1998. He consequently referred the record which was scanned by M/s Kapoor & Company , then consulted surveyor and also concluded that loss of Rs.50,489.85p was payable to the insured. As he took figures from earlier report of M/s Kapoor & Company, so, his report is of no consequence and in our view was mere exercise in fertility.

17. Now adverting to the actual position, whether the complainant is able to prove the loss suffered on account of fire. Conclusion of surveyor M/s Kapoor & Company that goods worth Rs. 14,36,360/- were shown intact after fire appears to be correct. As per report Ex.C.7 of the Chartered Accountant M/s Rajneesh Jain & Company of the firm of the complainant, as on 27.5.1998 closing stock was worth Rs.14,91,827/-. Apparent to note that fire took place on 28.5.1998. On proceeding day of the fire, the stock worth Rs.14,91,827/- was in the godown of the complainant.


Therefore, the loss assessed by the surveyor M/s Kapoor & Company to the tune of Rs.62,050/- appears to be justified and correct. But he acted wrongly and illegally by applying average clause for reducing the actual loss to Rs.50,500/-. In our view, average clause was not applicable to the goods in this case. As insurance of the goods was worth Rs.13,00,000/- and insurance claim was for Rs.4,50,000/-. Consequently, average clause could not have been made applicable as the loss assessed was less than the sum assured.

18. For coming to such conclusion, we stand fortified from the findings of the Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in case Sanjeev Sood Vs. Oriental Insurance Co. Ltd. & Anr. reported in III (1998) CPJ 671. In that case surveyor had also applied average clause and reduced the amount. Loss assessed was less than the sum assured. Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla held that in such cases, where the loss assessed was less than the sum assured, average clause has no application.

19. Consequently, if we take out average clause as applied by M/s Kapoor & Company, then total loss suffered by the insured goods comes to Rs. 62,050/- only. To this amount, complainant certainly would be entitled to receive from the opposite party under the Insurance Policies.

20. Further on behalf of the complainant, argued that he has suffered loss more than Rs.4,50,000/- and this can be verified from the photographs Ex.C22 to C.34 placed on record as taken by the surveyor of the opposite party. However, photographs would not help us to infer or conclude to what extent damage suffered to the insured goods of the complainant. Rather surveyor who had physically verified the stock, seen situation with his own eyes on the next day of the fire, would be relevant to be considered for assessing damage suffered by the complainant.

21. In these circumstances we feel that opposite party has not rendered proper services to the complainant by not paying the actual loss of Rs.62,050/- to the complainant, to which he is entitled.

22. Therefore, we allow this complaint and as a result thereof direct opposite party to pay under the insurance policies loss of Rs.62,050/- minus Rs.50,500/-(already paid) =Rs.11,550/- along with interest @9% per annum from the date of complaint till payment and for deficiency in service ordered to pay compensation of Rs.25,000/- (Rs. Twenty Five Thousands only) and litigation expenses of Rs.5000/-(Rs. Five Thousands only). Compliance of the order be made within one month of the receipt of copy of the order, which be made available to the parties free of costs

1- Neelam Rani aged 45 years, w/o Sh. Inderjit Singh;

2- Inderjit Singh aged about 50 years, s/o Sh. Amritsaria Ram;



Both Rs/o of H.No.7278, New Moti Nagar, Gali No.6, Ludhiana. …..Complainants.

Versus



The National Insurance Company Limited, Kochhar Market, Ludhiana,

through its Manager.

…..Opposite party.






O R D E R





1- Accidental damage calim to the vehicle of the complainant, bearing no.PB08-AN-8339, insured with opposite party vide policy no.404005/31/07/6100 002917 dated 24.9.2007 and valid upto 23.9.2008, was repudiated by opposite party, on ground that Sh. Rakesh Kumar owner of vehicle, had no insurable interest in the vehicle, as policy stood in the name of previous owner of the vehicle. The complaint is instituted by parents of Sh. Rakesh Kumar, who had purchased the car and got it transferred in his name. The car met with an accident on 25.4.2008 qua which FIR no.110 dated 22.4.2008 was registered in P.S. Focal Point, Ludhiana. In the accident, owner of the car, Sh. Rakesh Kumar died and the car was totally damaged. Claim under the policy was lodged by complainants, being legal heirs, furnished all necessary documents along with estimate of repairs. But opposite party wrong and illegally vide letter dated 24.11.2008, repudiated the claim.


It is claimed by the complainant that u/s 157 of Motor Vehicle Act, 1988, transfer of insurance in favour of their son Sh. Rakesh Kumar, was automatic and by repudiating the claim, opposite party acted illegally. Hence, this complaint u/s 12 of the Consumer Protection Act, 1986, for direction to opposite party to settle the claim and pay Rs.3 lacs compensation for loss and damages.

2- Opposite party in reply claimed that complaint is barred u/s 26 of the Consumer Protection Act, the Fora has no jurisdiction to try the same, as there is no deficiency in service on their part. However, it has been admitted that Sh. Rakesh Kumar after purchase of the car, got RC transferred in his name. At that time, car was insured with them and stood in the name of previous owner Sh. Ranjit Singh. This insurance was never got transferred by Sh. Rakesh Kumar in his favour. As such, Sh. Rakesh Kumar had no insurable interest in the vehicle. They denied that car met with an accident on 25.4.2008 and was completely damaged. Lodging of claim by the complainant, is conceded, but denied that estimate of Rs.2,96,568/- for repair of the car, was submitted. The claim has rightly and legally been repudiated, in accordance with law. Deemed transfer of the insurance u/s 157 of the Motor Vehicle Act, is applicable to third party loss and not to loss of the owner.

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

4- The only dispute in this case is of legal nature whether insurance is deemed to be transferred in favour of purchaser of the vehicle, u/s 157 of the Motor Vehicle Act, 1988 or such deemed transfer is qua loss of third party.

5- Before we come to discuss aforesaid legal controversy, may highlight undisputed aspects of the case. Vehicle no.PB08-AN-8338 was owned by Sh. Ranjit Singh and Sh. Rakesh Kumar son of the complainant had purchased it. In RC (Ex.R10) of the vehicle, purchaser Sh. Rakesh Kumar was entered owner. At the time of purchase by Sh. Rakesh Kumar, the vehicle was insured with the opposite party, vide policy Ex.R13, which stood in the name of Sh. Ranjit Singh. There was accident of this vehicle on 25.4.2008 and next day on 26.4.2008, owner Sh. Rakesh Kumar, who was driving the vehicle, died in the accident. After his death, claim was lodged under insurance policy by the complainants being legal heirs and parents of the deceased and the same stood repudiated, vide letter Ex.R1 dated 24.11.2008 of the opposite party, on ground that Sh. Rakesh Kumar had no insurable interest in the vehicle at the time of accident.

6- Opposite party in support of contention that there was no insurable interest in favour of Sh. Rakesh Kumar purchaser of the vehicle, referred few decisions reported in Madan Singh Vs United India Insurance Co. Ltd. & Anr. I(2009)CPJ-158(NC); New India Assurance Co. Ltd. Vs Jai Pal II(2009)CPJ-491(UT State Commission, Chandigarh); New India Assurance Co. Ltd. Vs Dattaraya Shanker Buva(Since deceased) through his LRs & Ors. I(2009)CPJ-568(Maharashtra State Commission); New India Assurance Co. Ltd. Vs Sant Ram Chauhan I(2006)CPJ-478(HP State Commission); Om Parkash Sharma Vs National Insurance Co. Ltd. & Ors. IV(2008)CPJ-65(NC) and Mandeep Singh Vs National Ins. Co. Ltd. & Anr. I(2007)CPJ-245(Pb. State Commission).

7- With due respect to all the authorities in preceding para, we venture to record that they have no application to the facts of the case in hand. As in all those authorities, circular of General Insurance Companies was not referred or considered. Be it stated that Insurance Companies had issued India Motor Tariff Regulation GR-10 in 1994 U/s 157 of the Motor Vehicles Act, 1988. By such regulation, transfer of insurance policy was made automatic on the transfer of ownership of the vehicle. Such regulations were considered by the Hon’ble National Commission in Narayan Singh Vs New India Assurance Company Ltd. IV(2007)CPJ-289(NC).

8- Relying on this authority of the Hon’ble National Commission, Hon’ble Punjab State Commission in Kulwant Singh Vs United India Insurance Co. Ltd. & Anr. II(2009)CPJ-213(Punjab State Commission), has also laid that in view of India Motor Tariff Regulations GR-10, insurance of the vehicle stands automatically transferred in the name of purchaser. In view of such regulation and the law, it is apparent that deceased Sh. Rakesh Kumar had insurable interest in the vehicle. Rejection of the claim on the ground that Sh. Rakesh Kumar had no insurable interest, is illegal, contrary to Regulations GR-10, governing the subject.

9- It is consequently, apparent that opposite party are guilty of mis-conduct, by repudiating the claim on untenable ground, by ignoring mandatory regulations issued by the Insurance Companies U/s 157 of the Motor Vehicle Act, 1988. So, means insurance of the vehicle in favour of Sh. Rakesh Kumar stood automatically transferred. So, complainants being his legal heirs would be entitled for loss of the vehicle.

10- As a result of the discussions, complaint allowed and consequently, we direct opposite party to settle insurance claim of the insured car of son of the complainants, in terms of insurance policy Ex.R13, within 60 days of receipt of copy of this order and pay the damage amount to the complainants, in conformity with the insurance policy. For thrusting this litigation on complainants, they are also ordered to pay compensation of Rs.5000/- and litigation costs of Rs.2000/-. Copy of order be provided to the parties free of charge. File be completed and consigned to record room.

1) Mrs. Susoma Chatterjee,

Village: Khamarchandi,

Dist. Hooghly, Pin-712405. ---------- Complainant

---Verses---

1) National Insurance Co. Ltd.,

3, Middleton Street, Kolkata-71.



2) Golden Trust Financial Services,

16, R.N. Mukherjee Road, Kolkata700001. ---------- Opposite Party









Complainant Ms. Susama Chatterjee by filing a petition u/s 12 of the C. P. Act on 18.02.2008 has prayed for issuing necessary direction upon the O.P. to pay a sum of Rs. 2,00,000.00 with interest till realization of the insured amount and compensation of Rs. 5,000.00 and for any other order as the Forum may deem fit and proper.



It is the specific case of the Complainant that her deceased husband Kashi Nath Chatterjee was insurance policy holder covering the risk of accidental death/loss of limbs/permanent/total disablement in the name of group mediclaim insurance and Group Janata Personal Accident through O.P. 2 for a sum of Rs. 2,00,000.00 against the policy bearing No. 1003000/47/2K/9601062/2K/96/00272 expiring on 07.02.2016 in which the petitioner is the nominee. Her husband Kashi Nath died out of a road accident on 25.04.2005 at Haripal Hospital.


It was informed to the local police station. After the death of her husband, the petitioner, Ms. Susoma was under the treatment of Dr. Gautam Patra from 28.04.2005 to 10.07.2005 for mental depression syndrome. After recovery she informed it to the O.P. 2 alongwith the claim for Rs. 2,00,000.00. She also submitted all other relevant papers for processing the claim of her insurance. She made a series of correspondences to settle the matter but as the O.P. no.1 has not yet taken any effective measure, she has filed this case with the aforesaid prayers

O.P 1, National Insurance Co. by filing a WV on 31.07.2008 has contested this case alleging therein that the Petitioner has suppressed the material facts. They have no knowledge about the death of insured person, namely, Kashinath Chatterjee. They have also denied that the delay in settlement of payment of insurance was not due to their laches and negligence but the delay has been caused due to the petitioner and they have prayed for the dismissal of the case.



DECISION WITH REASONS

Admitted by Kashi Nath Chatterjee, the husband of the present Petitioner, the holder of the life insurance policy of Rs. 2,00,000.00 under O.P. 1 through Group Mediclaim Insurance under O.P. 2. Admittedly, he died on 25.04.2005 out of aroad accident. We have perused the insurance policy documents certifying the proposal and declaration submitted to the insurance company by Kashi Nath Chatterjee, now dead. It is evident from his certificate of death that 25.04.2005 at the age of 65, he died at Haripal. We have also perused the FIR bearing No. 57/05 dt. 25.04.2005 lodged u/s 279/238/427/304A IPC. We have also perused the other police papers including the statement of one eye witness of the accident, which caused death of Kashi Nath Chatterjee on 25.04.2005. We have also perused the post-mortem report of deceased Kashinath.


We have also perused the letter dated 21.08.2007 of GTFS, O.P. 2 on the subject of reconstruction of repudiation file of the insurance of deceased Kashinath having reference to the letter dt. 26.07.2007 addressed to Ms. Susoma Chatterjee, the wife of the deceased Kashinath. In the impugned letter dated 21.08.2007, it has been mentioned that the claimant was under the medical treatment of Dr. Gautam Patra from 28.04.2005 to 10.07.2005 due to severe mental depression syndrome. It was also mentioned in the letter wherein GTFS had requested to reconsider the decision of O.P. 1 and proceed towards settlement of claim at an early date under advice to GTFS.

In their WV filed on 13.08.2008 by O.P. 2 have prayed for expunging their name because the Petitioner has no claim against them. But they have suppressed the case of the Complainant. In the Affidavit of Evidence Shri Ashim Sengupta who had swore on 05.01.2009 had admitted that Kashinath Chatterjee was the insured person under O.P. 1 through O.P. 2. The contents of the Affidavit of Examination in-Chief of the Complainant are in tune with the averments made out in the complaint/petition.

We have also perused the BNA filed by the parties.

Having due regard to the facts, circumstances, evidence on record on both oral and documentary, we are of the opinion that the Petitioner, Susoma Chatterjee is entitled to get the relief as prayed for. Hence ordered that the petition of complaint is allowed against the O.Ps. O.P. 1 is directed to pay a sum of Rs. 2,00.000.00 (/Two Lakh) with interest as per the then prevailing rate till full realization. The Complainant do also get an award of compensation of Rs. 3,000.00 and litigation cost of Rs. 2,000.00. The O.P. 1 is directed to pay total decreetal amount within 30 days from the date of communication to them and in default it will carry an interest @ 10% p.a. till full realization. Fees paid are correct.

Supply Certified Copies of this Order to the Complainant on payment of prescribed fees by the parties.

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.









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.