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





…Complainant





V/S



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

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



…..Opposite parties








ORDER.

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


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


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

2. The opposite party No.1 resisted the complaint by raising preliminary objections that there is no deficiency in service as the claim has been repudiated on the basis of well founded reasons i.e “No tag No claim” and as such the complaint is not maintainable. On merits , the opposite party No.1 has not denied the insurance of the cow by the complainant and investigation of the matter by Sh.Vishal Kumar Guatam Surveyor on 13-11-2006. The opposite party No.1 pleaded that the cow under insurance was allotted tag No.3179 whereas the complainant has produced the tag No.5696 and this shows that the insured cow is still alive .


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

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

4. We have heard the ld. counsel for the parties and have carefully gone through the record of the case . At the very out set, be it stated that the opposite party No.1 has not denied the insurance of the cow of the complainant in the sum of Rs.15,000/-. As per the insurance policy, against the column identification , tag No.5696 was allotted to the cow. It has also not been denied that the intimation with regard to death of the cow was received by it form opposite party No.2. The opposite party No.1 has also not denied that the surveyor was deputed to get the matter investigated.


The claim of the complainant has been repudiated by the opposite party No.1 addressed to the opposite party No.2 who has advanced loan to the complainant on the sole ground that as per the investigation and the insured statement the dead cow was bearing tag No. NIC/3179 and the cow insured was bearing tag No. NIC 5696 and hence the claim was closed as No claim. The onus was upon the opposite party No.1 to prove and establish that the cow bearing tag No. NIC/3179 had died and the insurer is not liable to indemnify the complainant as the cow insured with tag No. NIC-5696 is still alive . The opposite party No.1 has pressed into service the letter dated 13-11-2006 sent by the father of the complainant mentioning the tag No.3179 of the dead cow .


The perusal of the letter shows that the same is thumb marked by the father of the complainant which shows that he is an illiterate person. Moreover, the letter is neither written nor signed by the complainant, therefore ,no benefit can be derived by the opposite party No.1 from the aforesaid letter .The opposite party No.1 had also relied upon the report of Er. Vishal Kumar Gautam ,Surveyor and Loss Assessor which is dated 13-11-2006. The perusal of the same shows that against column Insured’s statement it has been written as under:-

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







The careful scrutiny of the report reveals that the investigator had recorded the statement of the father of the complainant but investigator had failed to record the statement of the insured himself . In our opinion, the investigator had no occasion to record the statement of the father of the complainant who was illiterate and had no knowledge regarding the matter in dispute. No efforts has been made by the investigator to record the statement of the insured .


Moreover in the report it has been mentioned that the surveyor had also obtained few photographs of the animal to show that the ear tag No.3179 was affixed in the left ear of the cow . However, the opposite party No.1 had failed to produce the aforesaid photographs taken by the surveyor as mentioned in the report. Hence, an adverse inference has to be drawn against the opposite party No.1 for not producing the material evidence. Moreover no affidavit of the investigator Sh.Vishal Kumar Gautam has been filed by the opposite party No.1 in order to substantiate its case.


On the other hand, the complainant has placed reliance on the Post Mortem report which clearly suggests that the cow bearing tag Number NIC/5696 had died on 13-11-2006. The post mortem report is signed by Veterinary Surgeon ,Veterinary Hospital Gagal. The opposite party No.1 had not disputed the authenticity of the post mortem report . This report has been issued by a Government Official during the discharge of his official duty and there is no reason to disbelieve the same . The opposite party No.1 had failed to prove and establish that the cow bearing No NIC-3179 had died.


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

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

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

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

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





…Complainant

Vs



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

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

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



…..Opposite parties





ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties. The complainant averred that he has constructed residential house –cum shop in the land comprised in khasra No.265 at Bhambla by procuring loan of Rs.2,00,000/- from the opposite party No.2 and the said house was insured with the opposite party No.1 vide policy on 20-2-2007 in the sum of Rs.2,00,000/-.


The complainant further averred that he had spent Rs.4,00,000/- for completing the house . It is alleged that on 12-8-2007 due to heavy rain the building of the complainant got damaged due to flood and suffered loss to the tune of Rs..2,85,000/-. The house in question was also inspected by the revenue officer who prepared the damage report to the tune of Rs.2,85,000/- and Rs.50,000/- was paid as relief. Matter was also reported to the police and rapat was lodged on 14-8-2008.


The complainant averred that despite immediate intimation to the opposite party No.2 spot was not inspected by the opposite party No.1 and when he approached the opposite party No.1 to inspect the spot who assured to do the needful orally but nothing has been done and in his absence Manager of the opposite party No.2 alongwith surveyor of opposite party No.1 visited the spot and when the complainant visited the office he was told that he will receive the claim form very soon as entire papers have been supplied to it as given by the complainant .The complainant averred that the claim has not been settled despite service of legal notice upon the opposite parties .


It has further been averred that the opposite party No.1 is demanding documents , but now it is difficult to procure the same . With these averments , the complainant had sought a direction to the opposite party to pay the insurance claim of Rs.2,00,000/- alongwith interest at the rate of 12 % per annum . Apart from this, Rs.50,000/- as compensation and cost of complaint has also been claimed.

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

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

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

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

6 We have heard the ld. counsel for the parties and have carefully gone through the entire record. From the perusal of the reply of the opposite party No.1 it has become clear that the claim case of the complainant with regard to damage to his house has not been processed by the opposite party No.1 because as per the opposite party No.1, the complainant has not lodged any claim .The complainant has not placed on record the copy of claim form vide which claim was submitted with the opposite party No.1 either by himself or through opposite party No.2.


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

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

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

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

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

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



… Complainant.

Versus



1. M/S Goyal Motor Pvt. Ltd.

Authorized Maruti dealers,

Tara Devi, Shimla.



2. National Insurance Company Ltd.,

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

Tara Devi, Shimla.





…Opposite Parties









O R D E R:



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

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

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

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

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

6. The OP No.1 resists the allegations of the complainant and in its reply furnished to the complaint, has, contended, that, the complainant purchased Maruti Van Omni, on, 08.03.2005 under bill No.D1896774 and that the engine number and chassis number of the vehicle have been detailed in it. While relying upon the said bill, hence, they contend that the Maruti Omni Van was of 2005 and not 2004.


The complainant has not been able to rebut the said fact nor has been able to bring forth any satisfactory evidence to show that the chassis number and engine number reflected in the bill did not relate to the vehicles manufactured in the year 2005 and that the numbers were relatable to those models manufactured in the year 2004. For lack of the above satisfactory evidence, having been placed on record, we are inclined to concur with the contention duly supported by the bill of the OP No.1 that, as, a matter of fact Maruti Omni Van of 2005 not 2004 was supplied to the complainant. Hence the complaint being without any merit, is, liable to be dismissed.

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

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

(Complainant)

Vs.



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



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

(Opposite parties)






O R D E R



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

2. It is pleaded by the complainant that Tata Safari vehicle bearing engine number 702727, Chassis no.00491 was purchased by him for Rs. 7,25,785/- on 10.6.2004 from Dada Motors, Ludhiana. After purchase got it insured on 10.6.2004 with the opposite party for Rs. 6,89,496/- vide cover note no. 408672 and paid the premium of Rs. 26,514/-. Vehicle was hypothecated with ICICI Bank Limited, Ludhiana and it bear temporary registration no. PB-10TC-2292. On 13.6.2004, the vehicle met with an accident In Distt. Kota, Rajasthan and was totally damaged. Sh. Devinder Singh holding effective and valid driving license was driving the vehicle at the time of accident. Accident was reported to opposite party and lodged claim with them. But opposite party vide letter dated 11.8.2005 wrongfully and illegally repudiated the claim. This repudiation is assailed to be wrong, null, void and illegal and sought total loss or insurance amount of the vehicle from the opposite party, in addition to compensation of Rs.2,00,000/- for deficiency in service and Rs.11,000/- as litigation costs.

3. OP-Insurance Company in reply pleaded that the complaint is not maintainable; is also barred by limitation. Averred that contract of insurance is a contract of utmost good faith. Vehicle was insured on the assurance of M/s Prince Distributors that they were owner of the vehicle whereas invoice of the vehicle was issued on 18.6.2004. The vehicle was never purchased by the complainant on 10.6.2004. There is no privity of contract between the complainant and opposite party and the complainant was not owner of the vehicle on the date of alleged accident. Complaint is also bad for non joinder of necessary parties. Insuring the vehicle on 10.6.2004 vide cover note no.408672 by M/s Dada Motors, Ludhiana is conceded. But claimed that insurance premium was paid through cheque by M/s Dada Motors, Ludhiana. Delivery of the vehicle was given by M/s Dada Motors on gate pass delivery challan and no temporary registration number was issued to the said vehicle before it was delivered on 10.6.2004. The vehicle on the date of alleged accident on 13.6.2004 was being plied with trade certificate PB-10TC-2292.


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

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

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

6. As per case, complainant purchased the vehicle in question on 10.6.2004 and got the same insured vide cover note Ex.C.3 from the opposite party. It is not in dispute that this cover note Ex.C.3 was issued on 10.6.2004 at 8.20 P.M. by M/s Dada Motors acting on behalf of National Insurance Company. Insurance premium as per allegations of the complainant by way of cheque was paid to Dada Motors, who in lieu issued cheque of the insurance premium from their account to National Insurance Company. As a result cover note no. 408672 insuring the vehicle bearing engine no. 702727, chassis no.00492 was issued in favour of M/s Prince Distributors, of which complainant claims himself to be a partner. In the cover note temporary registration number of the vehicle was not mentioned and only engine number and chassis number of the vehicle were recorded. However, complainant in para no.2 of the complaint has mentioned that the vehicle was purchased on 10.6.2004 and insured w.e.f. same date and was assigned temporary registration no. PB-10TC-2292.


But we may say that PB-10TC-2292 was not temporary registration number of the vehicle. Rather it was a trade certificate on form No.17 under rule 35 of the Motor Vehicle Rules. Probably it was for such reason that temporary registration number of the vehicle was not mentioned in the insurance cover note Ex.C.3. Because, it on 10.6.2004 was never temporary registered, nor assigned any number. So, plea of the complainant that the vehicle had PB-10TC-2292 temporary registration number stand falsified.

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

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

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

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

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

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

11. Now adverting to the case in hand.

12. On 10.6.20-04 the vehicle allegedly purchased by the complainant from M/s dada Motors ltd. was not issued or assigned any temporary registration number. Such temporary registration number of the vehicle was assigned on 18.6.2004 as apparent from copy of the temporary registration certificate Ex.R.17. Though gate pass/vehicle delivery certificate (Ex.R.8) issued by M/s Dada Motors to Prince Distributors bears date 10.6.2004. But invoice of the vehicle sold by M/s Dada Motors to the complainant (Ex.C.5) contains date of sale as 18.6.2004. There is inconsistence in invoice Ex.C.5 and delivery challan/gate pass Ex.R8. Delivery challan and gate pass is dated 10.6.2004 whereas sale invoice shows sale of the vehicle on 18.6.2004 and insurance cover note qua the vehicle was issued on 10.6.2004.

13. It appears in these circumstances that the record qua delivery challan was got manipulated by the complainant in connivance with M/s Dada Motors and consequently purposely they did make it to help the complainant. Because on 10.6.2004, M/s Dada Motors could not have delivered this vehicle to the complainant, without providing temporary registration number. Complaint tried to make out that number mentioned in the trade certificate Ex.R.15 (Ex.C.4) was temporary registration number. This trade certificate was issued to dealer of the vehicle M/s Dada Motors and under Central Motor Vehicle Rules, they could not have sold the vehicle without temporary registration number. Temporary registration number to the sold vehicle was issued on 18.6.2004, on which date sale invoice Ex.C5 (R2) was issued.


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

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

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

Charan Singh Kohli son of Sh.Sardar Singh resident of 212-B, Industrial Estate, Ludhiana.

….Complainant.

Versus

National Insurance Company Limited, Branch Office No.III, Cheema Chowk, Ludhiana through its Branch Manager.

….Opposite party.








O R D E R






Complainant is a senior citizen aged 77 years and purchased Mediclaim insurance policy bearing no.404501/48/06/8500000410 effective from 30.03.2007 to 29.03.2008 by insuring himself for Rs.1 lac. Complainant had been continuously obtaining such policies from OP for the last 15 years i.e. from 25.11.1992 without any break. On 04.03.2008 complainant due to chest pain, got treatment in Hero DMC Heart Institute, Ludhiana, where he remained up to 15.03.2008.


The doctor diagnosed ailment as “Coronary Artery Disease (hereinafter referred to as ‘CAD’) –Triple Vessel Disease”. He spent approximately Rs.115000/-on treatment and hospitalization. Claim of Rs. 100000/- being insured and Rs.15000/- being cumulative bonus was lodged with OP. But they wrongly and illegally vide letter dated 14.05.2008 repudiated the same on the ground of “previous history of 12 years of CAD, hence pre-existing disease”. Such repudiation is false and illegal due to extraneous reasons. Hence OP is deficient in rendering services. So, complainant in this complaint under section 12 of the Consumer Protection Act, 1986 has sought direction to pay full compensation with 12% interest per annum and also award compensation of Rs.50000/- for harassment suffered due to deficiency of service and illegal rejection of the claim.

2. OP admitted obtaining Mediclaim policy and lodging claim there under by the complainant and rejecting the same. But they denied that complainant continuously since 15 years from 25.11.1992 has been purchasing Mediclaim policy from them, also denied complainant suffering chest pain and got treatment in hospital and spent Rs.150000/-on treatment. The claim lodged by the complainant was false. Claim of the complainant was rightly repudiated as the disease was preexisting disease, because complainant has “previous history of 12 years of CAD hence pre-existing disease”, the reasons for repudiating the claim are proper and legal. There is no deficiency in service on their part, and the complaint deserves dismissal.

3. Both parties adduced evidence by way of affidavits and documents. We have heard the ld. counsel for the parties and gone through the entire record placed on the file.

4. Repudiation of the claim of the complainant was made vide letter Ex.C1 dated 14.05.2008 of the OP. The reasons conveyed for repudiating claim was as under:-

“Previous history of 12 years of CAD hence pre-existing disease”.

5. Whereas, complainant claimed, that he has been regularly without break, purchasing the policies from the OP since 15 years. Therefore, the objections of the OP to repudiate his claim are not only unfounded but unsustainable as well. Therefore, vital question to be decided in view of the rejection letter Ex.C1 is whether complainant was having Mediclaim policy since more than 12 years back, so as to make non-existent and nonapplicable the exclusion clause of pre-existing disease. We state that the present insurance claim was lodged by the complainant under insurance policy valid from 30.03.2007 to 29.03.2008 copy of which is Ex.C15. Complainant as per discharge summary Ex.C3 of Hero DMC Heart Institute, Ludhiana, got admitted on 04.03.2008, the surgery conducted on 6.3.2008 and discharged from the hospital on 15.3.2008. He was diagnosed of type 2 Diabetes Mellitus CAD-old inferior Wall MI CAD-Triple Vessel Disease. For such disease angiography Ex.C2 was also conducted. He also placed on record invoice and bills Ex.C4 to Ex.C14 qua the amount spent on purchase of medicines and payment made to the hospital. It is to be seen whether complainant continuously, without any interruption obtained regular Mediclaim policies since 1992 from the OP, till filing of claim under insurance policy Ex.C15 valid from 30.03.2007 to 29.03.2008.

6. Following details drawn on the strength of Insurance certificate Ex.C15 to Ex.C28 would make the picture crystal clear:

Sl.No. Exhibits Mediclaim policy period

01 Ex.C28 25.11.1992 to 24.11.1993

02 Ex.C27 30.11.1993 to 29.11.1994

03 Ex.C26 08.12.1994 to 07.12.1995

04 Ex.C25 03.01.1995 to 02.01.1996

05 Ex.C24 24.01.1997 to 23.01.1998

06 Ex.C23 06.02.1998 to 05.02.1999

07 Ex.C22 22.03.1999 to 21.03.2000

08 Ex.C21 24.03.2000 to 23.03.2001

09 Ex.C20 30.03.2001 to 29.03.2002

10 Ex.C19 20.03.2002 to 29.03.2003

11 Ex.C18 30.03.2003 to 29.03.2004

12 Ex.C17 30.03.2004 to 29.03.2005

13 Ex.C16 30.03.2006 to 29.03.2007

14 Ex.C15 30.03.2007 to 29.03.2008



7. All these insurance Mediclaim policies were obtained by the complainant from National Insurance Company. First of such policy was taken by him effective from 25.11.1992 to 24.11.1993 so means since 1992 till 2008, had obtained Mediclaim policy for 15 years from the OP. The policy had been taken by him regularly, which OP had been issuing to the complainant. In such scenario, we fail to understand how OP under rejection letter Ex.C1 concluded that complainant had previous history of 12 years CAD, hence having preexisting disease and not covered in the policy. Even if such allegations that complainant had some medical problem since 12 years, have some substance, it cannot be construed to be preexisting disease for purpose of Insurance policy Ex.C15. Because, even such disease would be deemed to be contracted by the complainant after policy incepted for the first time in the year 1992-93 vide policy Ex.C28 valid from 25.11.1992 to 24.11.1993. This means that OP rejected the claim without verification of its own record. As a result, repudiation would be unjustified, illegal, arbitrary and unjust to its own consumer.

8. Even otherwise, also there is no proof in the case that disease with which complainant suffered and took treatment, was preexisting since 12 years, though OP in support thereof have filed letter Ex.R2 of Genins India Ltd, Third party administrator in Health Insurance that deceased had previous history of 12 years for CAD. How and from which material they could gather such conclusion, there is nothing on the record. Neither affidavit of Third party administrator in Health Insurance filed, nor any other medical record produced to prove such plea. Consequently, there is no proof that complainant since 12 years suffered from heart problem.

9. Sequel to the discussion, we are clear of the view that OP has arbitrary and illegally rejected the claim, causing mental agony and torture to the complainant.

10. Therefore, we allow this complaint and as a result direct OP to settle and pay claim under Mediclaim policy, to the complainant under insurance policy Ex.C15 within 30 days of receipt of copy of this order and the amount found due under the policy, be paid within 30 days, failing which shall be liable to pay 9% from the date of complainant till payment. For thrusting this uncalled litigation on complainant, causing harassment to him they are ordered to pay Rs.20000/- as compensation and litigation cost assessed to Rs.4000/-.

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

….Complainant.

Versus



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



….Opposite party.






O R D E R








1- Complainant being owner of scooter bearing registration no.PB-10AJ-4549, valuing Rs.10,800/-, got it insured with opposite party, vide policy no.401311/31/04/6202134 for Rs.10,800/-. The policy was valid from 25.7.2004 to 24.7.2005. During intervening night of 22/23rd July, 2005, locked scooter was parked by the complainant in the street in front of his house, but was stolen. On 23.7.2005, visited P.S. Divn. No.4, to lodge FIR qua theft. Police demanded affidavit. Stamp papers purchased on 22.7.2005 for some other purpose, were used for the affidavit which was given to the police on 23.7.2005.


The affidavit was attested by the Notary Public on 23.7.2005. After taking affidavit, police registered FIR No.55/6.8.2005. Immediately, intimation of theft, was also given to the opposite party. Police could not trace the stolen scooter and filed untraced report on 2.4.2006. Thereafter, has been requesting opposite party, to settle his insurance claim. Even their investigator Sh. M.L. Mahla in his report, has recommended payment under the policy, due to theft of the scooter. But opposite party got the same re-investigated from him, without his notice or consent.


After taking statement of the complainant, Sh. M.L. Mahla investigator submitted report dated 21.12.2006 on the basis of which, opposite party repudiated the claim vide letter dated 28.12.2006.This repudiation is assailed to be illegal, null and void, by filing the present complaint under section 12 of the Consumer Protection Act, 1986. Further claimed that had earlier filed complaint at Ambala Fora, which on technical ground of jurisdiction, was dismissed. Hence, sought insurance amount of the scooter alongwith Rs.50,000/- for humiliation and harassment with Rs.11000/- litigation expenses.

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

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

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

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

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

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

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

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

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


......... Complainant


versus


1.

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

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

......... Opposite Parties




1.

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

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

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

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

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

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

It is further replied that the truck in question was brought for repair to Delhi, where final survey was conducted. The complainant filed the claim at Jalandhar. The National Insurance Company, Jalandhar asked the complainant to provide necessary particulars regarding intimation letter for assessment of loss, appointment of surveyor by the competent authority. The complainant was also asked to clarify that some of the bills submitted by him are not from the person, whose estimate has been supplied, as such the re-inspection was done by the surveyor. However, despite of number of requests, the claimant-complainant failed to respond or clarify the matter.


Thus, the claim file was closed as it was not possible to keep it pending for a long period. The file was closed as no claim vide letter dated 7.3.2008 and its due intimation was given to the claimant. Since the complainant failed to provide necessary information and documents, as such the claim could not be processed.
8.

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

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

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

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

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


The complaint stands disposed of accordingly. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

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

…..Complainant.

Versus



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

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

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

…..Opposite parties.





O R D E R





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


Relevant copies of cover notes show that medi-claim policy has been continuously renewed upto 18.7.08.In last cover note no.5589380 dated 16.7.07, opposite party issued policyno.404000/48/07/8500000406 under which, complainant himself, his wife Shivani, Baby Prinyanka his daughter and Master Rushit Goel his son, all were insured for Rs.50,000/- each. On 16.2.2008, Master Rushit Goel was admitted with Dr. Kanwar Mohan”s Squint Centre, SCO no.833-834, 2nd Floor, Sector 22-A, Near Bus Stand, opposite Parade Ground, Chandigarh, for squint surgery of his left eye, who performed squint surgery of Master Rushit Goel and was discharged on the same evening. Rs.26,955/- were spent on treatment. Claim was lodged with opposite party.


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


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

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


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

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

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

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

(ii) Devi Priyanka D/o Naresh Goel

(iii) Master Rushit Goel s/o Naresh Goel

and complainant himself.

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


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

6- Opposite party argued that on receipt of claim form, it was duly entertained, registered and referred to opposite party no.3 and insured was called upon to submit documents in support of claim. After receipt of receipt of documents and scrutiny thereof, it was found that claim wasn’t tenable on ground that Master Rushit Goel son of complainant was suffering from Iris Coloboma of left eye just after two months of his birth (Ex.C16) and complainant failed to supply schedule of treatment taken for the same.


Complainant was asked to get certificate from treating doctor whether the disease was congenital or acquired to process the claim, but he failed to do so, despite of repeated reminders Ex.R1, Ex.R2, Ex.R4,Ex.R6 and Ex.R7. Opposite party further argued that most of the cases, the disease of squint is from birth and claim could not be processed in absence of certificate. It is presumed that the complainant was having this problem from birth, so opposite party is not liable to make any payment. Under clause 4.1 of the policy, all diseases/injuries which are pre existing when the cover incepts for the first time, are not payable. Disease of his son was existing at time of purchasing the policy, but complainant did not inform it to the company while purchasing policy for the first time.


The complainant was supplied with terms and conditions of policy and he was aware of the same but despite he failed to comply with terms and conditions of policy bond. Therefore, claim of complainant was repudiated vide letter dated 16.10.2008 Ex.R10 and file was closed as no claim as the complainant did not furnish information regarding many letters mentioned above in Ex.R10.

7- From above facts and figures, it is to mention here that complainant on 16.2.2008, got admitted his son Master Rushit Goel in Dr. Kanwar Mohan ‘s Squint Centre, SCO no.833-34, 2nd Floor, Sector 222-A, Chandigarh and got squint surgery for his left eye done, he was discharged on same day after surgery. He made payment of Rs.26955/- vide bills Ex.C8 to Ex.C11. It is also to mention here that this surgery was done for his son for squint of his left eye.


Whereas opposite party has objected that his son was having this diseases Iris Coloboma in left eye just after two months of his birth(Ex.C16) and this certificate has been issued by CMC & Hospital, Ludhiana. It is also to mention here that Master Rushit Goel was operated for squint in his left eye. It is also to make clear that as per certificate issued by CMC, Ludhiana, no anomalies was detected at birth and was a normal baby (Ex.C16) and only after two months of age, he was found to have an Iris Coloboma in left eye which was confirmed by Opthalogist.


Further, if we go through medical certificate of CMC Ex.C16, there was no mentioned of any squint in his left eye since his birth and only Iris Coloboma was detected after two months, as per the medical dictionary, the squint and Iris Coloboma, both are different to each other and is not one and the same thing. Squint as per the medical dictionary means, “commonly called erosed eye”. Medical Dictionary means of Iris is “The coloured layer of the eye, surrounding the pupil”, and meaning of Coloboma is “A fissure, especially of a parts of the eye”. It is quite obvious that squint and Iris Coloboma are not having same meaning and these two are different diseases and not identical.

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

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



…Complainant

and



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

16 RN. Mukherjee road, Kolkata, West Bengal.



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

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



…Opposite parties







O R D ER






1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The brief facts of the complaint are that the son of the complainant subscribed Group Personal Accident Policy with opposite party No.2 through opposite party No.1 vide policy No.100300/42/04/82000112 and the opposite party No.1 issued a certificate bearing No. GMSC/GPA/04-05/AA-0823108 Dt.8-10-2004 for a period from 8-10-2004 to 7-10-2014 for a sum of Rs.1,00,000/-, that the insured Byraboyena Venkanna was bitten by snake, immediately he was shifted to Gandhi hospital & Diagnostic center at Khammam, by that time the said Venkanna was found dead.


Dr.Ch.Babu Rao of said Gandhi hospital, attended the deceased and issued a certificate, dt.5-3-2008 by mentioning the cause of death of Venkanna on 15-1-2007 due to snakebite and also noticed the snake bite mark on his body. The death of Venkanna was registered with local body concerned i.e. Gram panchayat Mudigonda and office of Tahasildar. Accordingly, the death certificate was issued by Sarpanch, Grampanchayat specifying the cause of death due to snakebite.


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


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

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

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

4. On behalf of the complainant, the following documents are filed and marked as Exhibits.





5. On behalf of opposite parties, Xerox copy of policy is field marked as Ex.B.1 and copy of the letter repudiating the claim is marked as Ex.B.2 and copy of terms and conditions of the policy is marked as Ex.B.3.

6. Heard both sides. Perused the oral and documentary evidence. Upon which the point that arose for consideration is,

1. Whether the complainant is entitled to the amount subscribed in

Group Accident Policy with the opposite party No.2?

2. To what relief?

Points No.1 and 2:

7. It is not in dispute that late B.Venkanna, son of the complainant subscribed Group Accident Policy with opposite party No.2 for an amount of Rs.1,00,000/- and the said policy was taken through the Village Sarpanch as in Ex.A.1. The case of the complainant is that the insured, D.Venkanna suffered with snake bite and he was shifted to Gandhi Hospital, there Dr.Ch.Babu Rao attended the patient and later he was found dead. The Sarpanch, Gram panchayat, Mudigonda issued a death certificate mentioning the cause of death as snakebite.


Similarly, the Tahasildar, Mudigonda also issued a death certificate as in Ex.A.3. The death was not intimated to the police as he did not die due to suspicious circumstances involved in any crime. As such no F.I.R. was issued and no P.M.E. was conducted over the dead body of the deceased, B.Venkanna. When the complainant came to know about the insurance policy subscribed by the deceased, Venkanna through the agent. Immediately he lodged the claim with opposite parties who sought the complainant to furnish FIR and PME.


Inspite of furnishing Exs.A.1 to A.6 documents, complainant submitted a notary and also death certificate of the deceased, Venkanna issued by Dr.Ch.Babu Rao of Gandhi Hospital, Khammam as in Ex.A.5. Ex.A.4 issued by a qualified doctor mentioning the cause of death as snakebite. Inspite of it, the claim of the complainant has been repudiated and refused to pay the accident claim on the ground that the complainant failed to produce the P.M.E., F.I.R. and Inquest report. In the instant case, the complainant lodged the claim on the basis that his father died due to snakebite and intimated the death to the opposite parties and submitted the claim form. The claim has been rejected contending that the complainant did not produce the F.I.R. P.M.E. etc.,.


Though the complainant produced the death certificate issued by Sarpanch, Grampanchayat Mudigonda Village and mandal and Tahasildar as in Exs.A.2 and A.3. In Ex.A.2, it is clearly mentioned the cause of death as snake bite and also Ex.A.4 issued by Dr.Babu Rao, It clearly mentioned that B.Venkanna died due to snake bite. Apart from this, the learned counsel for opposite party contended that the death was not intimated within 30 days and the claim was not made within 90 days as per terms and conditions of the policy. It is a fact that the condition imposed in the terms and conditions of the policy could not be within the knowledge of complainant. The complainant is an agriculturist. In these circumstances, the opposite parties cannot refuse the amount payable under the policy to the complainant.

M/s.L.G.Polymers India Private Limited, Rep.by its Authorised Representative cum

Senior General Manager, Sri Balireddy Sudhakar, S/o B.S.Narayana, Hindu, aged 54 years, having the Office at M/s.L.G.Polymers India Private Limited, R.R.Venkatapuram, Visakhapatnam.

… Complainant

A n d :



1. M/s. National Insurance Company Limited, having its registered office at 3, Middleton Street, Kolkatta-700071, West Bengal.

2. M/s.National Insurance Company Limited, represented by its Divisional Manager, Divisional Office-1, D.No.47-13-1, Dwarakanagar, Visakhapatnam-16.

… Opposite Parties





: O R D E R :






1. The complainant company is a manufacturing company at Visakhapatnam. It insured all its factory plant, machinery and its products with the opposite parties in policy No.550600/11/2003/34/0019. It covers all types of damage and destruction, caused by the fire, in addition to other causes.

2. On 31-12-2003 at 2.38 A.M. (early hours of 1st January 2004) there was a fire accident occurred on the Rubber Dissolver Floor of the complainants factory. At that time, required quantities of styrene, recycle monomer and L.P. are being taken into Rubber Dissolver. By then, the Rubber Dissolver agitator was not yet started. Immediately a fire alarm was raised and fire was put off using water jet monitors. In that accident, the Rubber Dissolver top cover de-shaped and the affected Rubber Dissolver contents were affected and the cables passing through cable rack from R.D. area were burnt due to high temperature.


The possible route cause of this fire accident could be static charge accumulation/release in Rubber Dissolver due to free fall of styrene monomer and possibility of potential difference and therefore spark jumps due to simultaneous addition of styrene and recycle monomer from the top of the Rubber Dissolver.

3. Immediately the complainant company informed about the accident of fire to the 2nd opposite party and surveyor by name Prasad Babu visited the plant of 1st January 2004 and conducted initial inspection on the contaminated process stock mixture. The claim was made on 1-1-2004 but so far it was not settled. The loss was Rs.11,99,000. Hence this complainant to pay an amount of Rs.11,99,000 together with interest and composition and costs.

4. The second opposite party filed a counter pleading that the complainant is not a consumer as defined under Consumer Protection Act and the dispute does not come under the Act and hence this Forum has no jurisdiction. The issue of policy is admitted.

5. Immediately on information of the accident, the opposite party arranged a surveyor, Prasad Babu, to assess the loss at the time of accident and the raw material contaminated. The surveyor conducted survey on first, second sixth and eighth January and collected alleged contaminated chemical mixture from the cables at different locations. The material sent to department of Nuclear Techniques Chemicals Analysis.


Further the surveyor also requested Loss Prevention Association of India Limited, Hyderabad to analyze the incident and their opinion. It submitted its report to the effect that due to free static charges on the surface of the liquid in the tank must have ignited flammable mixture inside the tank and caused an explosion.

6. During the course of investigation, the surveyor obtained internal investigation report, which revealed that the generic cause of the most fires Viz static charge and explosive mixture formation. The formation of explosive mixture is remote because the quantity available as per the complainants version was only 17.75 M.Tons even assuming that it was the cause it could be attributed to improper pumping rates and this is not covered peril as per the policy.


Basing on the reports of the Nuclear Techniques Department Andhra University and also M/s. Loss Prevention Association of India Limited, the Surveyor of the opposite party pointed that Chemical Mixture was never affected as claimed under the cause of Chemical Mixture. Similarly the cables were not affected and the damage of the cables on those two accounts the claim cannot be allowed.


The surveyor estimated loss of physical damage to platform structures at Rs.3,25,794 and ultimately assessed the loss at Rs.3,15,974. Thus the claim of the complainant was processed for that amount and disbursement was sent to the complainant, but the complainant did not respond and on the other hand false complaint with false allegation. Thus there is no deficiency in service on the part of the opposite party and the complainant complaint is liable to be dismissed.

7. At the time of enquiry , both the parties filed affidavits in the support of respective contentions and the complainant marked Ex. A1 to A6 and opposite parties B1 to B4 both the councils were heard.

8. It is the contention of the Council for the complainant that the surveyor appointed after the incident was a Marine Engineer and not a qualified person. He contended that even otherwise the surveyors finding were not based on the actual facts and he failed to note the explosion inside the tank and but for the excellent earthing system, it would have been a major accident. It contended that the surveyor disallowed two claims without any proper basis ignoring the case of conditions of the complainant.


He vehemently contended that the very process of free fall styrene, recycle monomer and LP into the Rubber Dissolver (RD) resulted in spark jumps (from the top of Rubber Dissolver) resulted in static charge accumulation and ultimate explosion which the surveyor failed to take into consideration. Thus he contended that disallowing two claims and allowing only one claim by the opposite party is not at all justified under law.

9. On the other hand the contention of the council for opposite party that immediately independent surveyor appointed inspected the premises and collected the material from the place of incident and sent the same for analysis to the Nuclear Techniques Department of Andhra University. She also pointed out that services of M/s. Loss Prevention Association of India Limited, Hyderabad were also requested by the surveyor, who also gave report. She further contended that basing on his observations and relying upon the report of Nuclear Loss Prevention Association, the surveyor came to right conclusion that there was no loss to the Chemical Mixture or to the cables and there was only some physical damages and correctly assessed such damage.


It is further contended that in the light of the surveyors report the company assessed the damage at Rs.3,15,974 and even sent disbursement voucher as early as on 24-08-2005 to facilitate payment. But the complainant without responding to it came out with this complaint, without any basis and it is liable to be dismissed. She urged that in these circumstances there is no deficiency of service on the part of the opposite party in the complaint is liable to be dismissed.

10. In view of the respective contentions, the point that would arise for determination is: whether the complainant established deficiency in service on the part of opposite party and the complainant is entitled to the relief asked for?

11. The fact that the opposite party issued Standard Fire and Special Perils Policy (material damage) to the complainant company in Ex.A1, covering any destruction or damage of plant/machinery and accessories and stock by fire among other causes is not in dispute. Similarly, the incident of fire occurred on the Rubber Dissolver Floor on 2.38 AM i.e on 31-12-2003 i.e early hours of first January 2004 and an intimation of incident was given by the complainant is also not in dispute.


The complainant though initially made a claim of Rs.70,00,000 ultimately has revised its claim of loss of chemical composition at Rs.7,09,077 and Rs.4,90,000 for repairs to the Rubber Dissolver and replacement of cables thus in total claim of Rs.11,99,077 were made. As can be seen from Ex.B1 investigators report, at page No.135,the surveyor who was undisputedly appointed, made inspection on the very same day, collected the material at the place of accident for analysis and sent the same to the department of Centre for Nuclear to find out blackening of the cables and compositions of chemical mixture alleged to be affected.


Similarly services of Loss Prevention Association of India Limited, Hyderabad was also requisitioned by surveyor and that agency after making personal inspection and conducting independent enquiries came to the conclusion that the cause of action of free static charge in the time must be static charges in mixture inside the tank and caused explosion. Basing on the reports from these agencies the surveyor gave his report disallowing the claims for loss of chemical mixture as well as cables, but estimated the physical loss to the structure at Rs.3,15,759 and taking a salvage value as well as policies access ultimately gave a report that net claim allowable was Rs.3,15,794.


The opposite party sent Ex.B2 letter dated 24-08-2005 seeking for a voucher for issue of cheque for the said amount to make the payment, as can be seen from Ex.B2. Obviously being dissatisfied with the reduction of the claim to a large extent, the complainant without mentioning this fact and on the other hand pleading that the claim was neither allowed nor repudiated, came up with this complainant and for payment as per its claim.

12. The accident occurred on the night of the incident i.e. early hours of 1-1-2004. Undisputedly the surveyor appointed, collected the chemical mixture as well as the cable wires from the scene of incident and is not the same to the Centre for Nuclear Techniques, Andhra University. It sent its report. Though Ex.B4 is marked as that report, it is evidently a mistake, as it relates to the accident that occurred in the same premises on 30th June 2003. Ex.B1, the survey report contained these reports of the Centre for Nuclear Techniques at pages 254 to 262. The analysis report at page 262 i.e as follows:

Inference :The Chromatograms reveal that both sample and standard are not identical. The affected sample gave three peaks below the standard resolution times. This sort of advancing of peaks indicate that there has some thermal decomposition of the sample. The blackening of the sample may be attributed to previous remainants and carbonaceous matter.

Similarly at page 260 test certificate relating to cables, the inference drawn by the centre is “the insulation on the cables got damaged. Armouring is in good condition. Sheeting is in good condition”. The surveyor relied on these two reports.

13. Similarly with regard to the chemical loss, there is the report of Loss Prevention Association of India Limited, Hyderabad. In Ex.B1 from pages 248 to 253 at page 248 of this report it is concluded at page 248.

“ As the pumping of chemicals started at 02 25 hours, the accumulation of flammable mixture in 13 minutes must have been low before the loud noise was heard of 02 38 hours. The ignition of this mixture that resulted in fire must have created a pressure build up inside the tank and this resulted in displacing the bolted roof. After the sudden release of pressure flames must have shot up through the roof and died down due to insufficient oxygen. This is the reason why people must have felt that the fire died immediately on operating the water monitor”.

14. Ex.B1 report at page 8.0 reads that there was no loss of chemical mixture as the pumped liquid is 17.75 M.Tons and the recovered liquid is also 17.75 M.Tons, which is almost 100% recovery. He further concluded that the fire did not reach the surface of the liquid which in converse implies that the fire is localized at certain level in the tank. He also observed that as the fire was said to have been put off by water spray, the remaining liquidity of the tank should have relatively high moisture content and the peak corresponding to water content should have observed in the chromatographic analysis.

15. Basing on the two report of the Nuclear Centre and the Loss Prevention of Association India Limited and his own observations the surveyor concluded that there was no material loss. The learned counsel who strenuously contended that the surveyors finding is incorrect, could not place any evidence before us, to contradict or point out any mistake in the two reports of the Nuclear Centre and the Loss Prevention Society and conclusions drawn by surveyor.


Such being the case, in our view, the surveyors report that there was no material loss and no cable wire loss has to be accepted and the Insurance Company naturally did the same thing. In the light of the above, documentary evidence and discussion, we are of the view that the complainant is entitled for only loss of structural steel, which was assessed to Rs.3,15,794 by the surveyor.


As a matter of fact, Ex.B2 letter dated 24-08-2005 would show that the Insurance Company requested the complainant to send a proper voucher to enable them to release the claim amount of Rs.3,15,794. In spite of that, the complainant willfully suppressed this fact and came up with the complaint, as if the claim was not settled at all. In these circumstances we are of the view that the complainant is not entitled for any interest on the amount being awarded. It would be entitled to interest only from the date of order if payment is made within 30 days. Accordingly this point is answered.

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.

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.

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.

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.