जिला मंच उपभोक्*ता संरक्षण,धौलपुर (राज0)

उपस्थिति- श्री देवचन्*द मीणा- अध्*यक्ष
श्री यदुनाथ शर्मा - सदस्*य
श्रीमती अलका यादव सदस्*य
प्रकरण क्रमॉक 114/2007

1- शोभाराम पुत्र श्री दयाराम जाति कुशवाह निवासी ग्राम सेमर
का पुरा थाना मनियां तहसील मनियां जिला धौलपुर
2- उदयभान पुत्र श्री दयाराम जाति कुशवाह निवासी ग्राम सेमर
का पुरा थाना मनियां तहसील मनियां जिला धौलपुर

................. परिवादीगण

बनाम

1-नेशनल इंश्*योरेन्*स कंपनी लि0 तामील जरिये शाखा प्रबन्*धक नेशनल इंश्*योरेन्*स कं0 लि0 शाखा कार्यालय नई मण्*डी स्*टेशन रोड भरतपुर (राज0)
2-प्रबंधक स्*टेट बैंक आफ बीकानेर एण्*ड जयपुर शाखा बरेठा जिला धौलपुर
................. विपक्षीगण

परिवाद अधीन धारा 12उपभोक्*ता संरक्षण अधि0 1986
उपस्थिति अभिभाषक गण
1- श्री आरिफ हमीद खान एडवोकेट परिवादी की ओर से
2- श्री आर0पी0मोदी एडवोकेट विपक्षीगण की ओर से

आदेश

दिनॉक 20/03/2009
संक्षेप में प्रकरण के तथ्*य इस प्रकार है कि परिवादीगण द्वारा एक ट्रेक्*टर नं0 एम पी 06 इ 3982 विपक्षी सं0 2 के माध्*यम से ऋण लेकर लिया गया है जिसका प्रीमियम परिवादीगण द्वारा समय से भरा जा रहा है तथा बैंक द्वारा उक्*त वाहन का बीमा विपक्षी सं0 1 से 25-5-06 से 24-5-07 तक का कराया गया जिसकी पालिसी जारी की गई । दिनॉक 29-1-07 को वाहन दुर्घटनाग्रस्*त हो गया जिसकी सूचना सभी औपचारिकताऐं पूर्ण कर विपक्षी बीमा कंपनी को दी लेकिन बीमा विभाग द्वारा क्*लेम खारिज कर दिया गया । इस पर परिवादीगण ने इस जिला मंच में परिवाद दायर कर बीमा कंपनी से वाहन में हुई क्षति एवं हर्जा खर्चा दिलाने की मांग की ।
विपक्षी ने जवाव पेश कर जाहिर किया है कि परिवादीगण के उक्*त वाहन का बीमा था तथा उसके क्*लेम को खारिज किया जाना स्*वीकार किया हे । बीमा कंपनी ने उक्*त वाहन में 50000 रूपये की क्षति होने से इंकार किया है । ट्रेक्*टर जो कृषि कार्य के लिए होता है लेकिन उसमें सवार एक सवारी का प्रमाणित होना पाया गया है इसलिए बीमा सेवा शर्तो का उल्*लंघन होने से क्*लेम अस्*वीकार किया गया । दोनों पक्षों की बहस सुनी गई ।पत्रावली का अवलोकन किया गया । परिवादी का ट्रेक्*टर दुर्घटनाग्रस्*त हो गया तथा विपक्षी द्वारा सर्वेयर नियुक्*त किया जाकर सर्वेयर द्वारा नेट लास का आंकलन किया गया तथा नेट लास में 11383 रूपये का नुकसान माना है चूकि सर्वेयर स्*वतंत्र अनुसंधान कर्ता है इस लिए उसकी रिपोर्ट को नहीं माना जावे यह माननीय नेशनल कमीशन के पास निर्णय के अनुसार सही नहीं होगा ।अत: परिवादी को 11383 रूपये में 1383 रूपये के सरवेज को काटकर 10000/- दस हजार रूपये मय क्*लेम निरस्*त करने की तारीख 27/2/07 से 8 प्रतिशत ब्*याज व 500 रूपये परिवाद व्*यय दिलाना विधि सम्*मत है । जहॉ तक विपक्षी ने एक अन्*य व्*यक्ति साथ में वैठा होना मान कर क्*लेम निरस्*त किया है वह हमारी विनम्रराय में सही नहीं है क्*योंकि हैम्*मन कुमार छावरा बनाम ओरियन्*टल इं0 कं0 लि0 (1) 2004 सी पी जे 22 एन सी इस केस पर लागू नहीं होता क्*यांकि सवारी दुर्घटना का कारण नहीं है । जैसा कि न्*यू इं0इं0कं;लि0 बनाम सुभाष में 1998 (1) सी पी आर 309 में माननीय स्*टेट कमीशन ने कहा है जो माननीय उच्*चतम न्*यायालय के द्वारा प्रतिवादित सिद्वान्*त पर आधारित है ।
ऐसी सूरत में विपक्षी द्वारा सवारी का बहाना लेकर क्*लेम निरस्*त कर सेवा में त्रुटि किया जाना सावित है । अत: परिवादी का परिवाद आंशिक रूप से स्*वीकार किया जाकर विपक्षी को आदेश दिया जाता है कि परिवादी को 10000/- रूपये मय 8 प्रतिशत ब्*याज दिनॉक 27/2/07 से व 500 रूपये परिवाद व्*यय अंदर दो माह अदा करें । आदेश की पालना दो माह में की जावे ।
(देवचन्*द मीणा)
अध्*यक्ष
जिला मंच उपभोक्*ता संरक्षण
धौलपुर
आदेश आज दिनॉक 20/03/09 को लिखाया जाकर सुनाया गया ।


(यदुनाथ शर्मा ) (अलका यादव) (देवचन्*द मीणा)
सदस्*य सदस्*य अध्*यक्ष

BEFORE THE DISTRICT FORUM CONSTITUTED UNDER THE CONSUMER PROTECTION ACT (ACT NO. 68 OF 86) AT SRIKAKULAM

P R E S E N T
01. Sri P.Gurunadha Rao,
President, District Consumer Forum,
Srikakulam
02. Smt. D.Raj Kumari, B.A.(Hons.), B.L.,
Lady Member.
03. Sri K.Siva Rama Krishna, B.L.,
Male Member.

Dated this the 24th day of March, 2009

C.C.No. 93 / 2008


BETWEEN:

Kola Rajya Lakshmi, W/o.late Suryam, Aged about 28 years,
Hindu, Househod duties, C/o.Pedda Asirayya, Door No.13-40-20,
Desella Veedhi, Near Zilla Parishad Office, Srikakulam. ...Complainant.

AND:

01) The Divisional Manager, National Insurance Company Limited,
Divisional Office No.III, Shakespeare Sarani, 6th Floor, Kolkata-700 071.

02) The General Manager, M/s.Golden Trust Financial Services,
16, R.N.Mukharjee Road, KOLKATA – 700 001.

03) The Branch Manager, M/s. Golden Trust Financial Services,
Multi Service Limited, N.Raja Complex, Opposite to
ING Vysya Bank, New Colony, Srikakulam – 532 001. …opposite parties.

This complaint coming on 02-03-2009 for final hearing before us in the presence of Sri K.Seshagiri Rao, Advocate for complainant and opposite party No.1 absent and Sri B.Rama Mohana Rao, Advocate for opposite party Nos. 2 and 3 and having stood over to this day for consideration, this Forum made the following:
O R D E R
(By Sri K.Sivaramakrishna, Member)

This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 and facts of the case briefly are as follows:
Husband of the complainant contributed for group Janata Personal Accident Insurance Policy for Rs.2,00,000/- with opposite party No.1 insurance company through opposite party NO.2. Husband of the complainant met with train accident and died on 23-3-2006. Complainant claimed the insurance amount from opposite party No.1 insurance company by sending necessary documents. Complainant issued notice dated 7-2-2007 to opposite party NO.1, but there was no reply. Again complainant


issued notice dated 8-2-2008 to opposite party Nos.1 to 3. Opposite party No.2 issued reply notice dated 25-2-2008. Hence compliant is filed for a direction to the opposite parties to pay the policy amount with interest at the rate of 18% per annum from 1-11-2006 till the date of payment and compensation of Rs.10,000/- and costs of Rs.5,000/-.

2) Opposite party No.1 insurance company remained absent. Opposite party Nos.2 and 3 filed counter stating that Golden Trust Services used to forward the claim document to opposite party No.1 insurance company for settlement of claims. Opposite party Nos.2 and 3 used to pursue the pending claims with opposite party NO.1 whenever there was delay. Opposite party Nos.2 and 3 have no role to settle the insurance claims. It is further stated that the deceased Kola Suryam obtained Group Janata Personal Accident Insurance Policy coverage from National Insurance Company Limited, Kolkata through Golden Multi Services Club of GTFS covering the life of the deceased member Kola Suryam for the period from 23-1-2004 to 22-1-2009 for a sum of Rs.2,00,000/-. Kola Rajyalakshmi (Complainant) is the wife and nominee of deceased member under the insurance policy. The deceased Kola Suryam died in a train accident on 23-3-2006. Complainant was bedridden for nearly three months.


3) Complainant and opposite party Nos.2 and 3 filed affidavits. Exs.A1 to A14 are marked on behalf of the complainant. No documents are marked on behalf of the opposite parties.
Heard counsel for the complainant and counsel the opposite party Nos.2 and 3
Point for consideration is:
Whether there is deficiency in service on the part of the opposite parties?


4) Point:
Opposite party No.1 insurance company received notice of the complaint from this Forum and remained absent. Opposite party No.2 is facilitator in between the complainant and the insurance company. Ex.A1 is insurance policy company issued



under Group Janata Personal Accident Insurance. Policy covers the period from 23-1-2004 to 22-1-2019 in favour of Kola Suryam, husband of the complainant. Complainant is nominee under the policy. Policy was issued for Rs.2,00,000/-. Ex.A2 is copy of notice issued to the insurance company claiming the insurance amount. Ex.A3 is another copy of notice dated 7-2-2007 issued by the complainant to the insurance company claiming the insurance amount under the policy. Ex.A6 is another notice dated 8-2-2008 issued by the complainant to the opposite parties claiming the insurance amount. Ex.A9 is postal acknowledgement from opposite party No.2. It shows that opposite party No.2 had received Ex.A6 notice dated 8-2-2008 and kept quiet without issuing any reply. Ex.A10 is reply from opposite party No.3 stating that they did not receive any intimation of claim or related supporting claim papers from the complainant. It shows that the complainant did not approach opposite party No.3 for forwarding the claim of the complainant to opposite party No.1 insurance company. Ex.A11 is death certificate showing that the deceased Kola Suryam died on 23-3-2006 and the death was registered on 15-6-2006. Ex.A12 is copy of FIR showing that a person aged about 30 years had died in train accident on 23-3-2006. Ex.A13 is copy of Post-mortem certificate. It shows that Kola Suryam died and Post-mortem Examination conducted over the dead body of the deceased Kola Suryam. Ex.A14 is Inquest Report conducted over the dead body of the deceased Kola Suryam.


5) There is evidence to show that the husband of the complainant died in train accident and the deceased Kola Suryam got Group Janata Personal Accident Insurance Policy for Rs.2,00,000/-. Opposite party No.2 had arranged Group Janata Personal Accident Insurance Policy for the deceased Kola Suryam and others. Opposite party No.1 insurance company having received notice of the complainant from this Forum, remained absent. It shows that opposite party No.1 has no objection for the claim of the complainant under the Group Janata Personal Accident Insurance Policy. We therefore hold that there is deficiency in service on the part of opposite party No.1 insurance company. Hence, we answer the point accordingly.




6) In the result, complaint is allowed. Opposite party No.1 Insurance Company is directed to pay the insurance amount of Rs.2,00,000/- (Rupees two lakhs only) to the complainant with interest at the rate of 12% per annum from the date of filing the complaint i.e., 14-7-2008 till the date of payment and costs of RS.1,000/- (Rupees one thousand only). Advocate’s fee is fixed at Rs.1,000/- (Rupees one thousand only).
Dictated to the Shorthand Writer and transcribed by him, corrected and pronounced by us in open Forum on this the 24th day of March, 2009.

C.C. No. 112 /2008


Between


N. Sankar Naidu, S/o N. Devarajulu Naidu,
Aged 37 year, Hindu, residing at Gajulapalle
Village, Mapakshi Pot, Chittoor Mandal & District.
… Complainant.


And

1.The Branch Manager,
National Insurance Co., Ltd.,
Having its office at 10-3-74,
II Floor, PVN Complex,
Sheshapiran Street,
Chittoor Town & District.

2.The Divisional Manager,
National Insurance Co., Ltd.,
Having its office at Vijaya Complex,
Dharaveni Gardens (P.B.16)
Ongole – 523 001.

… Opposite Parties

This complaint coming on before us for final hearing on 06.03.2009 and upon perusing the complaint, written versions, affidavits, material documents and on hearing Sri K. Ashok Reddy, counsel for the complainant, and Sri S.Vijaya Bhaskar Rao, counsel for opposite parties 1 & 2 and having stood over till this day for consideration, the Forum made the following:-

ORDER

DELIVERED BY SRI. V. PARTHASARADHI RAO, B.A., L.L.B., President
ON BEHALF OF THE BENCH


This is a complaint filed by the complainant U/Sec. 12 of Consumer Protection Act for recovery an amount of Rs. 7,09,600/- towards Insurance amount for damaged vehicle and Rs. 4,00,000/- towards compensation for mental agony and for costs.

The complainant submits that he purchased HYUNDAI VERNA CAR bearing No. PY 01 AK 1890 for Rs. 7,43,627/- on 11.05.2007 from KUN HYNDAI, KUN Auto Company Pvt., ltd., Pondicherry under hire purchase agreement with M/s Sundaram Finance Ltd., Vellore and obtained Insurance Policy for Rs. 7,09,600/-, the policy coverage for a period of one year from 11.05.2007. On 11.03.2008 at 5.30 a.m he was traveling from Nandyal to Chittoor an accident was taken place due to rash and negligent driving of the opposite lorry driver. As a result of the accident the insured car was completely damaged. Immediately a case was registered with Ramapuram Police Station, Kadapa District. The 1st opposite party have deputed a surveyor to inspect the damaged vehicle and assess the quantum of damage. The surveyor assessed the visible damages and submitted his report before the opposite parties along with spot photos. Later the damaged car was shifted to HYUNDAI Service center for undertaking repairs. On 14.03.2008 the service center assessed the damages as Rs. 8,23,218/-. After getting the estimation for repairing works, the complainant filed claim form before the 1st opposite party. Afterwards the 2nd opposite party deputed another surveyor to do resurvey of the damaged vehicle. The 2nd surveyor could not come to correct conclusion about the damages. The 2nd surveyor gave appointment to the complainant to be present at the car at service center for studying damages on three occasions. But the 2nd surveyor did not attend on all three occasions at the service center. The opposite parties have no intention to assess the damages of the car and left the issue to the mercy of 2nd surveyor. The service center is charging rent of Rs. 250/- per day for parking the vehicle at the work place and they are demanding a sum of Rs. 50,000/- towards rentals.

The complainant submits that he is engaging a private taxi for his business purpose and spending Rs. 1,000/- per day. Therefore he assessed damages for the negligence of the opposite parties as Rs. 4,00,000/-. The opposite parties are not responded the requirements of the complainant. Therefore the complainant filed this complaint for recovery of an amount of Rs.7,09,600/- and Rs. 4,00,000/- towards compensation for mental agony and economic loss and Rs. 2,00,000/- towards taxi hire charges. The complaint may be allowed.

The 1st opposite party filed Written Version alleging that this Opposite party appointed a surveyor immediately after receipt of intimation from the complainant for spot survey of the damaged vehicle. This opposite party submits that on 02.04.2008 it sent requisition to its Chennai Regional Office for appointment of surveyor for final survey of the vehicle as the vehicle was within the limits of Chennai Regional Office. Accordingly the Chennai Regional Office appointed surveyor for final survey of the vehicle and the surveyor assessed the net liability of Rs. 4,26,115/- and recommended for repair of the vehicle. The complainant is not willing to repair the vehicle as advised by the surveyor and insisted to settle the claim on total loss basis and insisted this opposite party to appoint another surveyor for survey of the vehicle, which is against the terms and conditions of the policy. In this case there is no ambiguity in the surveyor’s report and report is very clear that the liability is on repairable basis. As per the terms and conditions of the policy the vehicle shall be treated as total loss, if aggregate cost of vehicle for repairs exceeds 75% of Insured Declared Value (IDV), but in this case the repair bill is not exceeding 75% of I.D.V value. Therefore the surveyor recommended for repair of the vehicle, but the complainant has not accepted and dragging the matter without repairing the vehicle, for which this opposite party is not responsible. This opposite party acted promptly and there is no delay or deficiency in service. The complainant is at liberty to repair the vehicle as recommended by the surveyor without any further delay and this opposite party is ready to pay the amount subject to terms and conditions of the policy. The complaint may be dismissed with costs.

The complainant filed rejoinder denying the allegations in Para Nos 3,4,7,8,9,10 & 11 of the Written Version.

The points for consideration are :
1.Whether the opposite parties have not settled the claim of the complainant without any reasons?
2.Whether the opposite parties committed deficiency in service ?
3.Whether the complainant is entitled to recover an amount of Rs.7,09,600/- together with interest at 18% p.a
4.Whether the complainant is entitled to Rs. 4,00,000/- towards mental agony and economic losses ?
5.Whether the complainant is entitled to recover Rs. 2,00,000/- towards damages for deficiency in service ?
6.To what relief ?

The complainant filed Chief Affidavit of PW-1 and marked Ex.A1 to A18. The opposite parties filed Chief Affidavit of RW-1 and marked Ex.B1 to B14.

The complainant filed Chief Affidavit of PW-1 in the same lines as averred in the complaint and Written Arguments. Similarly the opposite parties filed Chief Affidavit of RW-1 as averred in Written Version and Written Arguments.

Points No.1 to 3 :-
The learned counsel for the complainant contends that he purchased HYUNDAI VERNA CAR bearing No. PY 01 AK 1890 for Rs. 7,43,627/- on 11.05.2007 and obtained Insurance Policy for Rs. 7,09,600/- for a period of one year commencing from 11.05.2007 and the Insurance policy is subsisting. He further contends that on 11.03.2008 at about 5.30 a.m his VERNA CAR met with an accident due to the rash and negligent driving of driver of the opposite lorry and the car was totally damaged. He intimated the accident to the 1st opposite party who deputed surveyor to assess the quantum of damage caused to the insured car. The surveyor assessed the visible damages and filed his report before the opposite parties. Later the damaged car was shifted to authorized HYUNDAI service centre, Vellore who estimated the damages as Rs. 8,23,219/-.

The complainant submits that after getting the estimation for repairing works, he filed claim petition before the 1st opposite party. But the 2nd opposite party appointed 2nd surveyor on 04.04.2008 to resurvey the damaged car which was kept on service centre. But the 2nd surveyor did not assess the damages even though he is ready on every time whenever the 2nd surveyor is asking him to be present at the service centre.

The learned counsel for the complainant submits that he suffered physically and mentally as the opposite parties did not settle his claim, since more than one year, therefore he filed this complaint for recovery of the Insurance amount of Rs. 7,09,600/-.

The learned counsel for the opposite party contends that the opposite parties have neither repudiated the claim nor denied the repairs bill of the complainant, as such the complaint is not maintainable. I am unable to agree with the contention of the learned counsel for the opposite parties. The opposite parties appointed as 1st surveyor soon after the accident was intimated to them. The 1st surveyor assessed the visible damages. Again they appointed 2nd surveyor to assess net liability of the damaged car. The 2nd surveyor assessed net liability of Rs. 4,26,159/- as per Ex.B6 and observed that there are bout 25 items, which are to be checked and assessed. The 2nd surveyor observed in his survey report Ex.B6 that the insured is not willing to repair the vehicle for the reason that he has to incur considerable amount towards depreciation. Even after spending so much money of repairs the resale value of the vehicle will be very much less. In Ex.B9 the opposite parties itself stated that the insured in his letter dt. 26.08.2008 is willing to get the vehicle repaired, if a letter is given to the repairer and that they asked 2nd surveyor to be present at the time of dismantling the vehicle for taking photographs of the same and making proper assessment of the loss. When Ex.B9 reads that the complainant is willing to get the vehicle repaired, the observation of the 2nd surveyor that he is not willing is incorrect. Perhaps the 2nd surveyor was not willing to undertake the survey and the dispute has arisen. Therefore the opposite parties can not say they neither repudiated the claim, nor denied the repair bills of the complainant’s car. Because the 2nd surveyor did not attend the survey work, the claim is not settled. So the opposite parties can not blame the complainant.

The learned counsel for the complainant contends that the report of the 2nd surveyor Ex.B6 is full of wrongs and doubts; it was not a final survey report, though it was named as such. He further contends that in the spare parts description the surveyor mentioned 82 items, but he assessed the damage for 79 items only and omitted to assess 4 items. He further contends that the surveyor stated in his report Ex.B6 that damage of 25 items are to be decided after dismantling the vehicle, of which the valuation is estimated as Rs. 1,73,531/-. In Ex.A3, the service centre mentioned 134 spare parts are required to repair the damaged car. Whereas the surveyor mentioned in his report Ex.B6 about 108 spare parts only. He has not given any explanation regarding 26 spare parts in his report. Therefore the final report Ex.B6 given by the surveyor is not complete. The opposite party simply contended that the complainant is not willing to repair the vehicle as advised by the surveyor and filed this frivolous complaint.

The complainant submits that as per the terms and conditions of Insurance Policy Ex.A2 and private car package policy Section-1 of Ex.B1 says that “if the repairs are Rs. 500/- he has to undertake the repairs”. In this case the surveyor estimated tentatively Rs. 4,26,159/- and he has to assess many other spare parts more than Rs. 1,75,000/- and there is no fault on him. When Sec. 1 of Ex.B1 prohibits the insured to undertake the repairs of the damaged vehicle if the value of repairs are more than Rs. 500/-, the opposite parties have taken the defence that the complainant has to undertake the repairs and claim it is an argument for defence sake only. The opposite parties are not interested to pay the damages on total loss basis. Therefore I am fully convinced with the learned counsel for the complainant that the opposite parties evaded to assess the total damages to the vehicle.

The surveyor observed in his report Ex.B6 that since the assessed loss on repair basis does not exceeds 75% of I.D.V the question of total loss settlement does not arise. According to me it is not correct. The surveyor is not willing to assess the other damaged items 1 to 25 mentioned by him in his report Ex.B6. The probable estimate of those items is Rs. 1,73,531/-, if this amount is added to Rs. 4,26,159/- the total loss exceeds 75% I.D.V. Further it is stated by the complainant that the service centre estimated 134 spare parts are required to repair the damaged car, whereas the surveyor estimated only 108 parts and omitted to answer the 26 spare parts noted by its service centre. If these parts are also included the probable damages amount would be much higher and it will definitely go beyond 75% of I.D.V value. The I.D.V value of insured vehicle is Rs. 7,09,600/- as per the Insurance Policy Ex.A2 and B1. The surveyor also gave probable liability on total loss settlement. He estimated as Rs. 5,34,600/-. According to me, it is proper to grant compensation on probable liability on total loss basis. Therefore I am of the view that the complainant is entitled to claim compensation on total loss basis and it was assessed by the surveyor as Rs. 5,34,600/- under Ex.B6.

The learned counsel for the opposite parties relied on decision reported in II(1997) CPJ – 45 (NC) – LIC of India Vs Ramesh Chandra where in their lordships held that “the District Forum as well as State Commissioner had no jurisdiction to go beyond the terms and condition of the policy bond.” There is no dispute in the proposition laid down in the above decision. The complainant is claiming Insurance amount of the damaged vehicle as per terms and conditions of the Insurance Policy on total loss basis.
Therefore the complainant is granted compensation of Rs. 5,34,600/- on total loss basis.
Points 1 to 3 are answered in favour of the complainant.
Point No. 4 :-
The complainant claimed damages of Rs. 4,00,000/- stating that he engaged a private taxi for his business purpose regularly and spent Rs. 1,000/- per day against the opposite parties. There is no contract between the complainant and insurance company to pay conveyance charges for engaging a private vehicle till the claim is settled. Therefore he is not entitled to claim compensation of Rs. 4,00,000/-.
Point No. 5 :-

The complainant claimed damaged of Rs. 2,00,000/- for mental agony. The complainant established that he is always ready for checking the damages of the vehicle and the surveyor is not ready at any time to complete the final survey work, though the opposite party have taken the defence that the complainant has not co-operated with 2nd surveyor for assessing the damages of the vehicle, their arguments is disproved by their own letter Ex.B9. It is the opposite parties who have not taken steps to settle the claim of the complainant, though the complainant is insisting to settle his claim at an early date. The opposite parties have taken more that one and half years time without settling the claim of the complainant, they have not given any reason for it. They insisted the complainant to get the vehicle repaired which is contrary to Sec. 1 of the terms and conditions of the Insurance Policy, Ex.B1 and they put the complainant in mental stress and strain. Therefore the complainant is granted damages of Rs. 10,000/- towards mental agony.
This point is answered in favour of the complainant.

Point No. 6 :-
In the result the complainant is granted Rs. 5,34,600/- (Rupees five lakhs, thirty four thousands and six hundred only) and Rs. 10,000/- (Rupees ten thousands only) towards compensation for mental agony and Rs. 1,500/- (Rupees one thousand and five hundred only) toward costs of the complaint. The opposite parties 1 & 2 are jointly and severally liable to pay the said amount within 6 weeks from the date of this order.

ORDER
By Smt. Padmini Sudheesh, President

The case of complainant is that :
He had taken Mediclaim Insurance Policy from the respondent company and was entitled to get reimbursement of medical expenses up to Rs.30,000/- met by the complainant during the period from 23/7/01 to 22/7/02. After the treatment he had applied for the reimbursement of expenses, but was rejected by the respondent. The reason for rejection stated is that the illness for which treatment was made is an old case of diabetic Mellitus. But it is not correct because the treatment was for ‘Cirrhosis Liver’. The complainant was not diabetic and he is entitled to get the policy benefits. The rejection of claim shows deficiency in service and this complaint is filed.

2. The averments in the counter are that the respondent admits the policy for the period from 23/7/01 to 22/7/02. The complainant is silent about the date of illness and the disease of the complainant. As soon as the claim is reported by the complainant the respondent deputed an investigator and he has submitted a report stating that the disease of the petitioner was pre-existing and do not come under the purview of the policy. The medical report submitted by Dr.A.Sreekumar stated that the petitioner was first consulted on6/8/2000 with a previous history of illness of two years. As per clause 4.1 of the policy the complainant is not entitled to get the benefit. He has disease in the liver and was also a diabetic patient. The respondent denies the averment that he had spent an amount of Rs.30,000/- towards treatment. The respondent filed an additional counter stating that as per clause 4(3) of the policy the complainant is not entitled for getting any amount. As per the medical records the petitioner was consulted the doctor A.Sreekumar on 6/8/2000 for Cirrhosis Liver diabetic mellitus. This period is within 30 days during the first 30 days from the commencement of the policy. Hence dismiss the complaint.

3. The points for consideration are :
1) Is there any deficiency in service ?
2) If so reliefs and costs ?

4. The evidence consists of Exhibits P1 to P3 and P4 series on the part of complainant and Exhibits R1 to R8 on the part of respondent and also the testimony of RW1.

5. Points : This complaint is filed for reimbursement of Rs.30,000/- as medical expenses incurred to the complainant. According to the complainant being a policy holder from 23/7/01 to 22/7/02 he is entitled to get policy benefits from the respondent for the treatment done within that period.

6. The respondent has filed version and contended that a claim is submitted by the petitioner for treatment undergone for a period from 25/1/02 to 7/2/02. In the claim form the complainant has submitted that the treatment undergone by him for a period from 25/1/02 to 7/2/02 is for diabetes mellitus. The investigator deputed by the company conducted an investigation and submitted a report stating that the disease was pre-existing and do not come under the purview of the policy. The company repudiated the claim of the complainant by sating that pre-existing disease are excluded from the purview of the policy.

7. Both parties produced documents to establish their own cases. According to the complainant since he has undergone treatment during the period of policy of 23/7/01 to 22/7/02 he is entitled to get reimbursement from the company. The dates of treatment did not mention anywhere in the complaint. The disease stated is ‘Cirrhosis Liver’. After the treatment he had applied for the reimbursement of expenses, but was not granted by the company stating pre-existing diseases are excluded from the policy. Exhibit R3 is the claim form submitted by the complainant to the respondent company shows that the diabetic mellitus was the disease he was suffered. The date of admission was 25/1/02 and discharge was on 7/2/02. So the treatment of expenses which he is claiming is for the treatment done for diabetic mellitus. According to the respondent the complainant had undergone treatment for diabetic mellitus on 6/8/00 and so the complainant is not entitled for policy benefits since the disease was a pre-existing one. Exhibit R1 shows the date of first consultation is on 6/8/00 as OP No.145428 and the history of illness was two years. RW1 doctor was the treated doctor on 6/8/00 and he has deposed that the complainant was a diabetic patient and all the treatments were in continuation of the treatment on 6/8/00. So it is clear that the treatment stated in the complaint were in continuation of the treatment on 6/8/00 and as per Exhibit R4 policy the complainant is not entitled to get reimbursement of the expenses.

8. Subsequently the complainant has produced Exhibit P3 mediclaim policy which shows the policy coverage from 24/7/00 to 23/7/01. The first consultation and treatment was on 6/8/00 was within this policy period. After the production of Exhibit P3 policy certificate, the respondent filed additional counter in which it is stated that as per exclusion clause 4(2) any disease other than those stated in clause 4(3) contracted by the insured during the first 30 days from the commencement date of the policy are excluded. From the documents it can be seen that the first consultation was on 6/8/00 and the commencement of the Exhibit P3 policy was on 24/7/00. So as per the exclusion clause 4(2) of the policy the complainant is not eligible to get the policy benefits, since the consultation was within the first 30 days of the policy.

9. There is grave latches on the part of complainant. He has filed this complaint to get mediclaim reimbursement benefit under the second policy and it was rejected by stating the reasons ‘pre-existence of disease’. Subsequently he has produced the Exhibit P3 policy certificate shows that there was policy from 24/7/00 to 23/7/02. But the complaint is not amended to change the claim under the first policy. So we are not in a position to award the claim under the first policy since there is no prayer for that.

10. The claim under second policy is not permissible because before taking the second policy there was the disease and he had consulted RW1 for treatment and he had treated it. So he was suffering from the disease and he had definite knowledge about it. So the clause of ‘pre-existence’ will hit and he is not eligible to get the benefits.

11. Since there is no claim under the first policy we are inclined to dismiss the complaint.

12. In the result complaint is dismissed.

Dictated to the Confdl. Asst., transcribed by her, corrected by me and pronounced in the open Forum this the 27th day of March 2009.

ORDER SRI.K. VIJAYAKUMARAN, PRESIDENT.

This is a complaint filed seeking the insurance amount under a Medi claim policy, compensation and costs.

The averments in the complainant can be briefly summarized as follows:

The complainant is a subscriber of Medi claim Insurance policy from the opp.party. The complainant , complainant’s wife, son and mother of the complainant are covered by the said Insurance policy. The complainant has taken in the policy No.2001/8500609 from the opp.party for the period from 26.3.2002 to 25.3.2003 in continuation of the said policy the complainant subscribed the medi claim policy bearing No.570500/48/02/8501031 in respect of the period 26.3.2003 to 25.3.2004. During the subsistence of the policy the complainant’s mother fell ill and she was admitted in the KIMS Hospital, Thiruvananthapuram as in patient and under gone treatment from 18.3.2003 to 28.3.2003 and from 9.4.2003 to 16.4.2003. A sum of Rs.52,005/- was spent for the treatment of the mother. On 11.6.2003 the complaint submitted a claim before the opp.party in respect of the treatment charges of his mother. Though the complainant contacted the opp.party on several occasions the opp.party failed to expedite the said claim. The conduct of the opp.party amounts to deficiency of service and unfair trade practice. The complainant is a consumer of the opp.party and the opp.party is legally bound to disburse the claim within 3 months of submission of the Medi claim form. Hence the complaint.

The opp.party filed a version contending, interalia, that the complaint is not maintainable either in law or on facts. The complaint is lnot preferred by the insured Smt. Saraswathy Sukumaran for the claim of her treatment under the medi claim policy . The complaint is bad for non-joinder of necessary party. The complainant has approached this Forum with unclean hands by suppressing material facts regarding the case. The definition complaint, complainant, consumer dispute service as defined in section 2 [1] of the Consumer Protection Act do not cover the claim made out in the complaint. This opp.party had issued a medi claim insurance policy covering the complainant and his family members mentioned in the policy with a sum insured of Rs.50,000/- per person. The policy was issued on the basis of the declaration given by the insured in the proposal form . One of the insured Smt. Sarasawthy Sukumaran was suffering from the disease of Hypothyrodism at the time of joining the policy as per the declaration given in the proposal form and the said disease is specifically excluded from the insurance cover of the policy issued by the opp.party. The complainant’s mother has under gone treatment for her illness associated with Hypothyroidism Hypokalemea of unknown Etiology systemic hypertension, type 2 diabetes mellitus and depressive illness etc. at Kerala Institute of Medical Science Thiruvananthapuram during the period 18.3.2003 to 28.3.2003 and subsequently 9.4.2003 to 16.4.2003. The discharge summary of the patient issued from the KIMS Hospital shows that the patient was having known history of Hypothyroidism, Systemic Hypertension, Type 2 diabetes mellitus at the time of admission and she was on regular treatment for the same. The patient was again admitted at KIMS Hospital on 9.4.2003 with the complaint of Hypothyroidism, systemic hypertension Type 2 diabetes mellitus etc. and had undergone treatment upto 16.4.2003. In the discharge summary the treated doctor has specifically stated that the patient was on regular treatment for the complaints diagnosed even prior to the admission in the said hospital. The complainant’s mother was suffering from the disease Hypothyroidism at the time of proposing the medii claim policy on 15.3.2001 itself and on the basis of the declaration given in the proposal form regarding the above existing illness the said disease was clearly excluded from the coverage given under the policy. The opp.party after getting the claim intimation and after verifying the treatment records produced by the complainant had deputed an investigator Mr. Santergeens for conducting an investigation as to the claim preferred by the complainant The Investigator met the complainants mother and obtained a signed statement from her in which she had stated that she was a patient of Dr. Rawther at Upasana Hospital prior to her admission at KIMS hospital and she has under gone treatment of Dr. Roy Mathew of Medical College, Thgiruvananthapuram about 4 to 5 years before for the complaints of Hypothyroidism. The investigator further reported that the complainant’s mother was under the treatment of Dr. S. Ramanathan at Surya Clinic, Kilikolloor for depression which is a complaint characterized to Hypothyroidism from 2002 onwards. Therefore it is clear that the complainant’s mother was suffering from the disease of Hypothyroidism, systemic hypertension, depressive illness, hypokalemea and diabetes mellitus etc. for the last many years and was on regular treatment for the same. Since the disease Hypothyroidism and it’s related disease are clearly excluded from coverage of the policy, the opp.party shall not liable to make any payment for the expenses incurred for the treatment of the complainant’s mother under exclusion clause 4 [1] of the policy. Therefore the opp.party repudiated the claim dated 19.1.2004. The claim of Rs.52,005/- preferred by the complainant is also baseless and false. The complainant has paid only Rs.37,676.81 towards the hospital expenses during the above inpatient treatment and out of which Rs. 2,628/-is paid for Cafeteria, Miscellaneous charges, Telephone charges ambulance charges etc. which are clearly excluded from the coverage of the policy. There is no deficiency in service on the part of the opp.party. The complainant is not entitled to get the amount as claimed in the complaint . Hence the opp.party prays to dismiss the complaint with their costs.

Points that would arise for consideration are:
1. Whether the complainant is entitled to get the amount claimed in the complaint?
2. Whether there is deficiency in service on the part of the opp.party?
3. Reliefs and costs

For the complainant PW.1 and 2 are examined. Ext.P1 to P6 are marked.
For the opp.party DW.1 is examined. Ext.D1 to D4 are marked.

POINTS:

There is no dispute that the complainant’s mother undergone treatment in KIMS Hospital, Thiruvananthapuram and that she had insurance coverage under Ext.P1 /D1 policy during that period. According to the complainant though he preferred a claim the opp.parties did not allow the claim or repudiate the same.

The opp.parties will content that the claim was already repudiated as per Ext.D4 and intimated the complainant as the treatment of the complainant’s mother was in relation to a pre-existing disease.

It is an admitted fact that the complainant’s mother was admitted in the Kims Hospital for hypokalemia on unknown etiology and she had undergone treatment there as impatient from 18.3.2003 to 20.3.2003. She was again admitted on 9.4.2003 and undergone treatment as inpatient till 16.4.2003 . At the time of taking policy she was suffering from hypothyroidism and Diabetes which was disclosed in the proposal form. DW.1 has admitted in chief examination itself in page No.1 this aspect. He has stated that while taking policy for mother it was clearly stated therein that mother is having hypothyroidism, Diabetes and that the policy was issued excluding these diseases. If that be so, it cannot be said that there is any suppression. It is pertinent to point out in this context that the proposal form was not produced or for reasons best known to the opp.party. If only the same is produced it can be ascertained as to whether there are any wrong answers to questions or not or whether there is suppression of any disease.

In Ext.P4 under the head history and clinical findings it is stated that she has known history of Type II diabetes mellitus, hypothyroidism, systemic hypertension and normal pressure hydrocephalus at the time of admission.. There is no mention of hypokalemia . It is further stated in the 1st discharge summary that she was admitted one day after the symptoms first manifested PW.2 is the doctor who had seen the patient before admission to KIMS Hospital. He has stated that hypokalemia is not a character or symptom of hypothyroidism. In cross examination PW.3 asserted that there is no possibility of hypothyroidism developing into other diseases due to metabolic disorder. According to PW.2 hypokalemia is a sudden onset and not a pre-existing one. There is also no material before us to show that hypokalemia is a consequence of other diseases present in her. No medical evidence was also adduced by the opp.parties to contradict the evidence of PW.2 and establish that hypokalemia is a related disease of hypothyroidism, Diabetes Mellitus or any other disease mentioned in the discharge summary. The burden to establish hypokalemia is a related disease of the diseases mentioned in the discharge summary is on the opp.parties which they failed to discharge . The opp.parties in our view failed to establish that hypokalemia is a pre existing disease or related disease of the disease mentioned in Ext.P4 in the case of complainant’s mother and therefore repudiation of the claim by the opp.parties as per Ext. D4 is not proper and the complainant is entitled to get the amount incurred by him for the treatment of his mother less expenses incurred for cafeteria Miscellaneous charges, Telephone charges.. Point found accordingly.

In the result the complaint is allowed directing the opp.parties to pay the complainant Rs.36,548/- for the treatment from 18th to 28th March 2003 and Rs.18203/- for the treatment from 9th to 16th April 2003 with interest @ 12% per annum from 19..1..2004 till payment. The complain antis allowed Rs.2000/- towards compensation and Rs.1000/- towards costs. The order is to be complied with within one month from date of this order.

Dated this the 30th day of March, 2009.

ORDER DELIVERED BY Sri. R.G.PATIL, PRESIDENT 1) This is a complaint praying to direct the OP to settle the claim and pay to the complainant Rs.1,00,000-00 with interest and cost.

2) Brief facts of the complaint are that the complainant is the mother of the deceased Dinesh Bhadiya Dravid who died along with pillion rider in a road accident with a truck No. KA 31/1333 coming from the opposite side in great speed, on 13-11-06 while riding on his own motor cycle No.KA-31/K-8310, along-with pillion rider his elder brother Karunakar. He had insurance policy for the vehicle as well as personal accident policy under no.603702/31/05/6200011566. She submitted claim with the OP. But the OP did not settle the claim contending that the rider had learners license and the pillion rider had no DL. It is not fair and just to refuse the claim. There is deficiency of service on the part of the OP and the OP is liable.

3) The OP filed WS admitting the policy and further stating that the vehicle No KA 31/K8310 met with accident on 13-11-06 resulting in the death of the insured Mr. Dinesh and the pillion rider his brother Karunakara. Mr Dinesh was holding Learner’s Licence. The Pillion rider was not having driving licence. After submission of the claim form the OP appointed a surveyor and an investigator. Both of them submitted their reports finding that the rider had learner’s licence. It is necessary to be an instructor with the rider who has a learner’s licence. The complainant did not submit the DL of Karunakara even after issuing a letter by the OP on 5-9-07 and 11-10-07. Since she failed to comply with Rule 3 of MV Rules1989 her claim was treated as ‘NO CLAIM”. There is no deficiency of service on the part of the OP. He prays to dismiss the complaint.


4) The complainant and the OP have filed their affidavits. The complainant has got marked Ex.C-1 to C-7 and the OP got marked Ex.R-1 to R-5.


5) The point that arises for our consideration is: “Whether there is deficiency of service on the part of the OP” ?


6) Referring to ILR 2006 Kar the counsel for the complainant contented that the insured deceased died in the accident due to the fault of the truck driver coming in high speed in the opposite side. The police have prosecuted that driver. There is no fault with the insured deceased. The rejection of the claim is the deficiency of service by the OP.


7) The counsel for the OP vehemently urged that the deceased had learner’s license. According to the conditions in the policy the person holding learner’s licence has to satisfy the Rule 3 of the M V Rules. Inspite of issue of two letters the complainant failed to produce the licence of the deceased. The pillion rider also had no DL. Referring to 2008 ACJ 2855 and III (2008) CPJ 158 AP he averred that the rider did not have the DL for which the OP treated it as “NO CLAIM” and it was intimated to the complainant. There is no deficiency of service on the part of the OP and the OP is not liable. He prays to dismiss the complaint with costs


8) We have gone through the pleadings, affidavits and documents submitted by the parties. Ex C-7 is a letter Dt/- 26th Nov.2007 sent by the OP to the complainant intimating that the owner-driver does not hold an effective driving licence in accordance with Rule 3 of M V Rules1989. Hence the file is closed as ‘NO CLAIM’. The claim is repudiated on the ground that the rider had learner’s licence. The learner’s licence is also a valid licence. No claim can be denied on this ground. The Hon’ble Chhattisgarh SCDRC in III (2005) CPJ 310 has held that ‘negligence of driver not cause of accident - Insurance liable’. In this case the negligence is on the part of the driver of the truck and the police have prosecuted him. The insured rider is not at fault. The insurance is admitted. So in our view the repudiation of the claim is unjustified and the complaint is liable to be allowed directing the OP to pay to the complainant the insured amount with interest @ 9 % pa from 6 months after death i.e. 13-05-2007 till realization and cost of Rs 1000-00. We pass the following order. ORDER The complaint is allowed. The OP is directed to pay to the complainant the insured amount of Rs 1,00,000-00 (Rs.One lakh only) with interest @ 9% pa from 13-05-2007 till realization and cost of Rs.1,000-00 (Rs.One thousand only) (Order dictated, corrected and then pronounced in the open Forum on this day 11th March, 2009)

Complaint filed on 08.12.2008

and Decided on 17.03.2009

BEFORE THE UDUPI DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

AT UDUPI (KARNATAKA)

PRESENT: 1. Sri P.C.Gopal, President,
2. Sri Bekal Lakshmana Nayak, Member.

Consumer Complaint No. 145/2008

Clubbed with

Consumer Complaint No. 146/2008

Order Dated 17.03.2009

Between:

Smt.Vijayalakshmi
Aged about 58 years,
W/o Vittal Hegde,
Darkhas House, Seethanadi Post,
Karkala – 576 112, Udupi District.

(Sri Mohandas Shetty, Advocate for the Complainant)

……. Complainant

Versus

Life Insurance Corporation of India,
Divisional Office,
“Jeevan Krishna”,
P.B.No.8,
Ajjarkad, Udupi – 576 101.

(Sri Dayananda K., Advocate for the Opposite Party)

…………..Opposite Party

WRITTEN BY SRI P.C.GOPAL, PRESIDENT.

1. In both the above complaints bearing CC No.145/08 and CC 146/08, the Complainant is the same, filed against the same Opposite Party i.e. Life Insurance Corporation of India in respect of two different policy certificates, arising out of same cause of action. Hence these two complaints are clubbed together and common order is passed.

2. The Complainant Smt.Vijayalakshmi is the mother of Late Vijaykuamr Hegde. During his life time, he had obtained the insurance policies coverage on his life as detailed below:

Complaint No.

Policy Certificate No.

Date

Sum Assured

145/2008

624353904

26.12.2005

Rs.2,00,000/-

146/2008

624156395

15.12.2004

Rs. 50,000/-

Contd……..2

Vijaykumar Hegde died on 20.01.2007 due to heart failure. The Complainant filed claims documents with the Opposite Party furnishing all the details. But the Opposite Party did not respond to the claim.

3. The Complainant got issued lawyer’s notice dated 15.12.2007 to the Opposite Party and the Opposite Party replied the same by letter dated 23.3.2008 intimating the repudiation of the claim alleging that deceased Vijaykumar has suppressed the truth with respect to the pre existing ailment which is false. The reason assigned for the repudiation is wholly false and baseless and imaginary. The cause of death of Vijaykumar Hedge is nothing to do with the ailment stated in the letter dated 23.3.2008. Hence the above complaints.

4. After service of notice of complaint, Opposite Party appeared through the counsel and filed the versions contending that the complaints are false, frivolous and not maintainable under law or on merits and the same are filed with a view to have unlawful gain for herself.

5. On issuance of notices in both the C.C.Nos.145/08 and 146/08 Opposite Party represented by advocate and filed a memo for clubbing the matter and the same was considered since Complainant has no objection.

7. Opposite Party admits having issued policy Nos. referred in the Complaints for sums of Rs.2,00,000/- under table and term 091-30 30 commencing risk from 26.12.2005 and for Rs.50,000/- under table and term 91-30 commencing risk from 15.12.2004 to the son of the Complainant Vijayakumar Shetty hereinafter refereed to as the life assured, denies that the life assured had undergone all the medical tests conducted by the medical practitioner/s belonging to the Opposite Party. The captioned policies are issued under non medical general case for which no medical check up/s were insisted/conducted by the Opposite Party.

8. The Opposite Party admits the date of death as 20.01.2007 and the lawyer’s regd. notice dated 15.12.2007 and states that it is not correct to say that the Opposite Party did not respond to the claim of the Complainant despite the fact that the Complainant had submitted all the details and that the claims were repudiated on false and imaginary reasons as contended. The claims were repudiated for valid reason of non disclosure of material facts by the life assured

Contd……..3

regarding his health and it was conveyed to the Complainant on 23.03.2008. The Complainant’s appeals before Zonal claims Review committee of Opposite Party had upheld the decision of repudiations on 17.9.2008 and same has been communicated to the Complainant on 6.10.2008.

9. The Opposite Party submits that on investigation it was revealed that the life assured had been suffering from Synovial Sarcoma for about 2 years at the time of proposing for the policies. The final diagnosis was left Popliteal Fossa Swelling (Pigmented Villonodular Synovitis). The life assured was admitted to the hospital with the history of inability to straighten and bend left knee since 5 years. Open biopsy of left knee was done. He was again admitted to the same hospital on 21.5.2004 and discharged on 11.06.2004. The final diagnosis was old operated case of Synovial Sarcoma left knee with fixed Flexion deformity. He was put on skin traction and discharge with advice to continue the skin tractions at home. The life assured did not however disclose these facts in his proposal for the subject policies as he was expected to do in terms of the declaration signed by him in the proposal form with a view to defraud the Opposite Party and to make unlawful gains if possible. Thereby the life assured made mis-statements and with held material information from Opposite Party. This Opposite Party has repudiated the claims under condition 6 of policy under heading forfeiture in certain events’ accordingly the Opposite Party is not liable for any payment under the policies and all moneys that have been paid inconsequence thereof belong to the Opposite Party.

10. The Opposite Party submits that the ultimate cause of death given in medical attendance certificate (claim form B) given by Doctor Satyanarayan B of Muniyal Ayurvedic Hospital and Research Centre, Muniyal the primary cause of death of life assured was a cardiac arrest due to metastasis of sarcoma. The life insurance contract is based on the doctrine of uberrima fides (utmost good faith) between the parties in so far as acceptance of risk under the life insurance policies. It is also submitted that had the life assured disclosed the facts the Opposite Party would not have accepted his proposal or refunded the initial premium received. Therefore the contention that cause of death of the life assured has nothing to do with the ailment that he suffered is not correct and no relevance.

Contd…………4

11. Opposite Party denies that the life assured had availed the services of Opposite Party against payment and the Complainant being the beneficiary of such service and repudiations are deficiency in service, since there was breach of contract on the part of life assured in suppressing material information at the time of submitting the proposal for insurance.

12. The Opposite Party submits that this Forum has no jurisdiction to entertain the complaint on the grounds under Sec.2(c)(iii) of Consumer Protection Act and denies there is indulgence of unfair trade practice. The Opposite Party submits that the Complainant be directed to approach civil courts as laid down in R.P. 435/95 and 874/95 by Hon’ble National Commission.

13. The Opposite Party admits that the Complainant is a nominee in the policies but not admitting her as legal heir or only legal heir of deceased. The Complainant is put to strict proof of the same and prays for dismissal of the Complaints with compensatory costs U/s 35A of CPC.

14. The Complainant filed 3 documents each in both the complaints which are marked as Exs.C-1 to Exs.C-3 and Opposite Party filed 11 documents in C.C.No.145/08 and relied them in both the Complaints, marked as Ex.R-1 to Ex.R-11. Parties filed affidavits, interrogatories and reply affidavits. Opposite Party filed written arguments and prayed to taken as heard. We heard the oral arguments of Complainant. These are the materials placed before the Forum to decide the Complaints.

The issues that arise out of the above two complaints are that:
1) Whether the Complainant is consumer? If so.
2) Whether this Forum has jurisdiction to entertain the complaint? If so.
3) Whether the Opposite Party is justified in repudiating the claims of the Complainant? If so.
4) Whether the Complainant is entitled to reliefs? If so.
5) What order?

Point No.1 & 2:
15. The Opposite Party’s contention is that the Complainant is not a consumer, since the life assured while taking life insurance policy had suppressed material

Contd…………5

facts of his health conditions. Therefore, he has breached the terms and conditions and the policy was obtained in breach of utmost good faith, uberrima fides. Since there is breach of good faith, the contract ends once it is found out therefore, there is no contract between the life assured and the Opposite Party. Since there is no contract, the Complainant nominee of life assured is not a consumer.

16. The Complainant’s case is that she is the nominee of the life assured and there was a valid contract of insurance between life assured and the Opposite Party. Therefore, she is a consumer.

17. We have gone through the merits of the case and find that the Opposite Party could not prove the breach of contract of insurance is of uberrima fides. Therefore, the Complainant is the nominee of the deceased life assured is a ‘consumer’.

18. The Opposite Party’s argument is that this Forum has no jurisdiction to entertain the complaint and referred to rulings in R.P. 435/95 and 874/95 delivered by Hon’ble National Commission and sought direction to Complainant to approach competent Civil Court. The Complainant’s argument is that she being a consumer and in exercise of power conferred under Section 3 of CPA this Forum has jurisdiction. We are of the opinion that this Forum has jurisdiction to entertain the complaint since point No.1, it is held that the Complainant is a consumer and CPA is applicable to her. Therefore point No.1 and 2 are answered in affirmative.

Point No.3:
19. The Opposite Party’s argument is that the repudiation is justified on the grounds of non disclosure of material facts, since the deceased life assured has undergone treatment for ‘left popliteal Fossa Swelling (Pigmented Villonodular Synovitis) during 3.2.2003 to 8.2.2003 prior to obtention of 1st policy and also subsequent to this he was undergoing treatment for Synovial Sarcoma. Hence he has breached the contract of utmost good faith and relied on Ex.R-1 and Ex.R-2 proposal Forms, Ex.R-3 to Ex.R-10. which are medical hospital records, discharge summary and medical attendants certificate (Ex.R-10) and submitted that in proposal forms at column 11(a) to (d) the Complainant has given negative answer

Contd……6

on his health condition during the last 5 years and at J, he has answered “good” on his usual states of health. Had the life assured disclosed his ailment particulars the Opposite Party would not have issued policies to him or would have issued with altered terms/with extra special reports called for. The life assured had made deliberate mis-statements and withheld correct information from the Opposite Party. Hence the terms of the policies of the contract becomes void-ab-initio.

20. The Opposite Party further argued that the life assured was admitted to KMC Hospital Manipal on 3.2.2003 with a complaint that he was unable to straighten and bend knees for the last 5 years. He was discharged on 8.2.2003 and he was readmitted as inpatient on 21.5.2004 and discharged on 11.6.2004 with a complaint of pain left, knee with deformity and with a history of Synovial sarcoma left knee on radio and chemotherapy. Past history of surgery swelling left knee. Physical findings of examination revealed that surgical scar was found on posterior part of left knee and other serious problem. He was further operated and skin traction was put. He was admitted to Muniyal Ayurvedic Hospital and Research Centre, Muniyal on 2.12.2006 and discharged on 10.12.2006. The diagnosis was Synovial Sarcoma (Asthyarbuda). For the 3rd time he was admitted to KMC Hospital, Manipal as an inpatient on 10.12.2006 and was discharged on 10.01.2007. Hence when he purchased the said policies, he had the said problems. It is further submitted that as per medical investigation the ultimate cause of death will be cardiac arrest only under all ailments. As per Ex.R-10 the primary cause of death of life assured was cardiac arrest due to metastasis of sarcoma. Under these circumstances, had he disclosed his ailments the Opposite Party would not have accepted the proposal for assurance at all or have cancelled his proposal and refunded the initial premium. The 11 documents produced by the Opposite Party disproves the case of the Complainant and relied upon rulings in
RP 1835/1999 LIC of India before Hon’ble National Commission.
RP 3362/2004 LIC of India before Hon’ble National Commission.
Appeal (Civil) No.5322/2007 S.C.
and prayed for dismissal of the complaints.

21. The Complainant argued that the Opposite Party admits the death by cardiac arrest. The Opposite Party also admits the policies, and also admits that the Complainant is nominee. The Opposite Parties main argument is that non

Contd….7

disclosure of material facts. The non disclosure of material facts does not arise in this case because, the reason for death “cardiac arrest” has no nexus with the Synovial Sarcoma. Opposite Party had canvassed that the ultimate reason of death will be cardiac arrest. But Opposite Party did not prove it that the material facts as contended by Opposite Party has lead to the death and relied upon IV CPJ (2008) 458 where the synopsis reads:
“Consumer Protection Act, 1986 – Section 15 – Insurance – Suppression of pre-existing disease – Reimbursement claim repudiated – complaint dismissed by Forum. Hence Appeal – Disparity found in hospital reports – Evidence of treating doctor not given – Onus to prove pre existing disease not discharged by insurer – mere mention of pain during urination for last two years, without positive finding of disease and treatment record; not amount to pre existing disease – Repudiation unjustified – order of Forum set aside – Insurer held liable under policy

And prayed for allowing the complaints. We observe that Ex.R-1 is dated 5.12.2004, Ex.R-2 is dated 26.12.2005. The nominee is the Complainant. The Opposite Party admits the issuance of policies, date of death, and Complainant as nominee. This dispute is as regards the cause of death which according to Opposite Party is on account of non disclosure of material fact in this case. The Complainant’s case is that the cause of death and non disclosure of alleged material fact has no nexus. There is nothing to prove that the cardiac arrest, the reason admitted by both the parties other than the Ex.R-10. The Complainant submitted during the course of argument that the deceased life assured was taken to hospital for admission but before admission he died because of cardiac arrest, hence the body was taken back home without any treatment in the hospital. The Ex.R-10 medical attendants certificate at “4(a) what was the exact cause of death” is answered “a) Primary cause: cardiac arrest, Secondary cause : Metastasis of Sarcoma”
at “(b) was it ascertained by examination after death or inferred from symptoms and appearance while alive”
“inferred from symptoms and appearance while alive (about 2 months)”

22. The last discharge summary is available for the period 2.12.2006 to 10.12.2006 from Muniyal Ayurvedic Hospital and Research Centre, Muniyal. The date of death is 20.01.2007 place of death is the life assured house. The Opposite Party had fair opportunities to prove the cause of death by producing the treating doctors but did not opt for proving the documents and cause of death. In the circumstances, the Opposite Party has failed to prove that the cardiac arrest, the primary reason for death is a consequence to Synovial Sarcoma.

Contd……8

23. The Opposite Party in its arguments relied on Sec. 45 of Insurance Act. In the case of policy No.624156395 dated 25.12.2004 on expiry of 2 years from the date of issuance policy, the policy was not capable of being called in question interalia on the ground that certain facts have been suppressed which were material to disclose or that it was fraudulently been made by the policy holder or that the policy holder knew at the time of making it that the statement was false. Therefore, we hold that the repudiation of policy No.624156395 dated 15.12.2004 is deficiency in service in complaint No.146/08 and repudiation is not justified.

24. In the case of CC No.145/08 policy No.624353904 dated 26.12.2005 for Rs.2,00,000/- was taken and the life assured died on 20.1.2007. According to the Ex.R-10 the place of death is at deceased life assured house. The reason given in “medical attendant’s certificate (Ex.R-10). Primary cause of death is “cardiac arrest”. and secondary cause of death is metastasis of sarcoma”. The Opposite Party had failed to prove the cause of death and nexus to the non disclosed material fact. The Complainant relied on ruling in IV (2008) CPJ 458. Since the nexus is not proved and cardiac arrest is not disproved, the repudiation by the Opposite Party on the ground of non disclosure of material facts is deficiency in service and repudiation is not justified in the case of C.C.No.145/08. In the result, we answer point No.3 in Negative.

Point No.4:
25. In view of affirmative answers to point No.1 & 2, and Negative answer to point No.3 the Complainant is entitled for reliefs. The Complainant has claimed 12% interest on the policy amounts from the date of death. The parties have failed to mention or produce the document with date of claim. Therefore, the Complainant is entitled for the interest on insured amount and vested bonus from the date of death of life assured. The Complainant had further claimed Rs.25,000/- and Rs.1,00,000/- as compensation for mental agony.. No doubt there is agony till the policy amounts are realized and received. We allow Rs.5,000/- each in both the Complaints towards mental agony and harassment alongwith the cost of the proceedings. In view of the above, we answer point No.4 in affirmative and pass the following:

Contd……9

ORDER

The complaints are allowed. Opposite Party is directed to pay to the Complainant Rs.50,000/- and Rs.2,00,000/- alongwith vested bonuses in both cases alongwith 12% interest on the amounts from 20.01.2007 till payment. The Opposite Party also directed to pay Rs.5,000/- in each case (Total Rs.10,000/-) as compensation and Rs.5,000/- as cost of proceeding (consolidated) for both cases. The Opposite Party shall pay the above amounts within a month from the date of receipts of the order. Original order is kept in C.C.No.145/08 and copy in C.C.No.146/08.

(Order dictated to the Stenographer, after the same is typed, corrected and pronounced in the open court on this the 17th day of March 2009)

(BEKAL LAKSHMANA NAYAK) (P.C.GOPAL)

MEMBER PRESIDENT

// SMP //

Complaint filed on 5.11.2008

and Decided on 17.03.2009

BEFORE THE UDUPI DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

AT UDUPI (KARNATAKA)

PRESENT: 1. Sri P.C.Gopal, President,
2. Sri Bekal Lakshmana Nayak, Member.

Consumer Complaint No.127/2008

Order dated 17.03.2009

Between:
Sri Ratan Kumar,
Aged about 25 years,
S/o Lakshman Bangera,
R/at H.No.5-74,
Near SVST School,
Kidiyoor, Udupi.

(Sri Ganesh Kumar K., Advocate for the Complainant)

……….. Complainant

Versus

The Divisional Manager,
National Insurance Co. Ltd.,
1st Floor, Shankar Building,
Mosque Road,
Udupi.

(Sri Dinesh B.Shetty, Advocate for the Opposite Party)

……….. Opposite Party

WRITTEN BY SRI BEKAL LAKSHMANA NAYAK, MEMBER

1. The Complainant fled this complaint in Sec. 12 of CPA alleging deficiency in service by Opposite Party in repudiating the clam of insurance and claimed Rs.1,31,400/- with 12% interest alongwith Rs.50,000/- as damages for mental agony and harassment and also claimed cost of the complaint.

2. The case of the Complainant is that he is the owner of Maruti Omni vehicle bearing Regd. No. KA20-4335 having insurance coverage for the period 07.08.2007 to 6.8.2008 and the same vehicle met with the accident on 2.5.2008 suffering heavy damage. The Opposite Party surveyor had assessed the damage as total loss. The Opposite Party has received the claim papers and sent a letter dated 2.6.2008 demanding certificate of fitness and driving license of the Complainant, the copy of driving license was given to the surveyor and the same has been handed over to Opposite Party. The certificate of fitness is no way connected with the accident. The vehicle is of 2004 model purchased in 2004.

Contd…….2

3. The Complainant submits that on 28.6.2006 sent a lawyer’s Registered Notice calling upon Opposite Party to pay the amount due to the Complainant but instead of complying with the just demand of the Complainant Opposite Party sent a false and baseless reply. The Complainant is consumer as defined under C.P. Act and Opposite Party indulged in Unfair Trade practice which in turn amounts to deficiency in service. Hence this complaint with the above prayer for the reliefs.

4. On admission of the compliant, notice was served on Opposite Party and Opposite Party represented by the counsel and filed version stating that the complaint is false, frivolous and vexatious and not maintainable in law and or on merits. The Complaint is framed and brought before this Forum is not correct and same is liable to be rejected. Opposite Party states that the said vehicle was insured under policy No.2385303/08272007 for the period 7.8.2007 to 6.8.2008 and the liability of the policy if any is governed by the terms and conditions and limitation as use of the policy of insurance issued by them. Opposite Party admits the ownership of the vehicle by Complainant. Opposite Party does not admit the said vehicle met with an accident and suffered heavy damage. Opposite Party also denies that the damage to the vehicle to the extent of Rs.1,34,400/-. Opposite Party admits intimation of alleged accident and appointed automobile surveyor Mr.R.A.Gadiyar to conduct inspection to assess the loss caused to the vehicle.

5. The Opposite Party submits that as per the terms and conditions of policy the insured shall supply all material evidence and records to substantiate the contents of the case taking for decision on the claim submitted by the insured. The Complainant has failed to produce material documents like fitness certificate and driving license. . The Opposite Party came to know that the fitness certificate is valid upto 24.10.2007 and driver of the vehicle Sheikh Mohd. Sameer had driving license only LMV (NT). It is submitted that the aforesaid vehicle is Taxi Cab Transport vehicle. The Complainant has not renewed the fitness certificate from 24.10.2007 . The driver Sheikh Mohd. Sameer was driving the vehicle was holding driving lcience No.FDL839/S170/P84/04-05 issued by RTO Udupi on 5.7.2004 valid upto 4.7.2024 without badge number and endorsement by the prescribed authority to drive the transport vehicle. As per the terms of the policy the insured should not entrust the vehicle to the driver who has not possessed effective and valid license to drive such type of vehicle. The Opposite Party

Contd……3

demand for fitness certificate and driving license with badge has not been met by the Complainant, thereby the Complainant has violated the terms and conditions of the contract of the insurance. Therefore the Opposite Party is not liable to indemnify the loss caused to the Complainant from the alleged accident to the insured vehicle as per the contract of insurance. The Opposite Party further states that after application of mind by considering the terms of the policy the Opposite Party has repudiated the claim of the Complainant for the above reasons. Opposite Party admits that having received lawyer’s Regd. notice ate 28.6.2008 got issued by the Complainant and it has been replied on 16.7.2008 by Opposite Party’s lawyer. Opposite Party denies that Complainant is consumer and there is no deficiency in service on its part. The complaint is false. The claim made is on higher side, excessive, unreasonable, unfair and the same is claimed without any basis. Therefore liable to be rejected as barred by law and prayed for dismissal of the complaint with cost.

6. The Complainant filed 5 documents which are marked as Ex.C-1 to Ex.C-5 and Opposite Party filed 7 documents marked as Ex.R-1 to Ex.R-7. Parties filed affidavits, interrogatories, and reply affidavits. We heard both the parties.

7. These are the materials placed before this Forum to decide the matter. The points that arise out of above are that :
1) Whether the Opposite Party is justified in repudiating the claim of the Complainant and
2) Whether the Opposite Party committed deficiency in service? If so.
3) Whether the Complainant is entitled for the reliefs? If so.
4) What Order?

Point No.1:
8. The case of the Complainant is that he is owner of the Maruti Omni vehicle No.KA 20-4335. The Opposite Party has admitted the accident on 2.5.2008 and Opposite Party has deputed their surveyor to assess the loss. The Opposite Party has not paid the amount claimed under the pretext of vehicle had no fitness certificate and the driver had no effective driving license. The Complainant submits that he had given the copy of driving license to the surveyor at the time of surveying the accident vehicle and the same is with the Opposite Party. The question of fitness certificate does not arise since the vehicle was fit to run and all

Contd……….4

the government dues are paid upto date. Therefore, the repudiation by the Opposite Party on the ground of no fitness certificate and no effective driving license is not justifiable and is deficiency in service. In support of his claim relied on rulings in :
1) IV(2007) CPJ 347 (NC)
2) 2005(2) TAC 171
3) 2003 ACT 565
4) 2005(2) TAC 680
5) III(2008) CPJ 306
6) III(2007) CPJ 347

9. The Complainant during the course of argument filed a memo alongwith motor vehicle accident report issued by ARTO Honnavar and stated that at item No.9 on page No.2 as follows:
“Brief particulars of cause of accident
should be furnished.
I am of the opinion that the accident was
not due to any mechanical defects of the
Motor Vehicle.”

and stated that the vehicle was not mechanically defective and the accident was not due to any mechanical defects of the motor vehicle. Therefore, there is no need for production of fitness certificate and prayed for allowing the complaint with above prayed for reliefs.

10. The Opposite Party submitted that the policy is not disputed, the accident is not disputed but only the vehicle was not having fitness certificate and the driver Sheikh Mohd. Sameer who is not the Complainant had no effective driving license and justified the repudiation of claim on these grounds. The Opposite Party argued that the Complainant was requested to furnish fitness certificate as well as the driving license of the driver who driven the vehicle at the time of accident which the Complainant has not complied in terms of the policy where the Complainant is bound to furnish called for documents in relation to the accident vehicle.

11. The Opposite Party submitted that in Ex.R-2 under driver clause it is stated “Any person including the insured : provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license, provided also that the person holding an

Contd……..5

effective . . . . . . . . . … . & that such a person satisfies the requirement of Rule 3 of the Central Motor Vehicles Rules, 1989”

12. The Opposite Party relied upon the driving license marked as Ex.R-10, the license is valid from 5.7.2004 to 4.7.2024 for Auto Rickshaw NT and a transport vehicle driver has to obtain badge as well as the license is to be renewed once in every three years which endorsement is not found in the driving license. The Ex.R-11 is Form No.42, Permit in respect of a particular contract carriage, which indicates that it is a motor cab. Therefore it is a transport vehicle, since the driver has not possessed, badge and transport vehicle driving license he had no effective driving license to drive this vehicle under rule 3 of Central Motor Vehicles Rules. The owner of the vehicle i.e. the Complainant ought not to have entrusted the vehicle to drive to a person who had no valid effective driving license. Therefore, the Opposite Party is right in rejecting the claim.

13. Ex.R-9 is fitness certificate issued by RTO vide CF BNo.1705/04-05 dated 31.7.2004 was upto 30th July 2006 and thereafter renewed upto 24.10.2007./ Therefore at the time of accident i.e. on 2.5.2008 the vehicle had no fitness certificate under Chapter VII of the Motor Vehicle Act, 1988 running a vehicle without fitness certificate is violation of the terms an conditions of the policy .
Under this circumstance also the Opposite Party is justified in repudiating the claim of the Complainant.

14. The Complainant relied on Motor Vehicle Accident Report given by Inspector of Motor Vehicle, Honnavar which gives cause of accident and not the fitness of the vehicle. It is only a inspection report and not authorized fitness certificate. Therefore, the arguments of Complainant are liable to be rejected and complaint may be dismissed.

15. We observe from the above that the insurance policy, accident and coverage of insurance to the accident vehicle are admitted. Now the question that the Opposite Party raised is of fitness certificate and effective driving license, while going through the policy conditions, the Opposite Party has endorse3d the policy with Driver’s clause which reads:
“Driver Clause: Any person including the insured : Provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. provided also that the person holding an effective learner’s license may also drive the vehicle & that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989.

Contd……….6

Accordingly the driver should posses effective driving license at the time of accident and he is not disqualified from holding or obtaining such a license. In this case the driver had effective driving license to drive LMV, as per Ex.R-10, page 9, to drive Light Motor Vehicle (LMV) (NT). Ex.R-11 is the Form 42 permit in respect of a particular contract carriage, wherein it is mentioned Motor Cab with Registration No.KA-20-A-4335. The RC of this registration at Ex.R-8 states it is Maruti Omni with unladen weight 740 Kgs. which is classified as Light Motor Vehicle under M.V. Act. Therefore, the contention that the driver had no effective driving license is not sustainable.

16. As regards fitness certificate, the Complainant relied upon IV (2007) CPJ 347(NC), wherein in para 17, it was held as under:
“As stated above, in the present case, the insured was having fitness certificate with regard to the vehicle till 30th May, 1995. The accident took place on 20th June, 1995. Further as per the RTO Inspection Report, the claimant was in good condition for its being plied at the time of accident. In this view of the matter, the impugned order passed by the State Commission cannot be sustained and is set aside. The order passed by the District Forum is restored. ”

17. Here also the RTO report on accident wherein the cause of accident it was stated – accident was not due to any mechanical defects of the Motor Vehicle. Therefore, we are of the opinion that the fitness certificate of the vehicle is not a condition precedent to settlement of the claim. Hence we find that repudiating of the claim by Opposite Party is deficiency in service and answer point No.1 in Negative and Point No.2 is answered in Affirmative.

Point No.3:
18. In view of the Negative answer to point No.1 and Affirmative answer to point No.2, the Complainant is entitled for reliefs. The Complainant claimed Rs.1,31,400/- as repair charges. The insured declared value is Rs.1,31,400/- the Complainant is entitled for the full value of IDV subject to returning salvage valued at Rs.70,000/- and excess clause Rs.500/-. The complainant has claimed interest @12% p.a. from the date 6.5.2008 (date of survey), since claim date is not mentioned, till the date of payment with cost of Complaint and answer point No.3 in Affirmative and pass the following:

Contd…….7

ORDER

The complaint is allowed. The Opposite Party is directed to pay to the Complainant Rs.1,31,400/- less salvage value and policy excess amount with 12% interest from 6.5.2008 till date of payment. Opposite Party further directed to pay to the Complainant Rs.2,500/- as cost of the proceedings. Opposite Party shall comply the aforesaid order within one month from the date of receipt of this order.
(Order dictated to the Stenographer, after the same is typed, corrected and pronounced in the open court on this the 17th day of March 2009)



(BEKAL LAKSHMANA NAYAK) (P.C.GOPAL)
MEMBER PRESIDENT
// SMP //

Date of Filing:23.10.2008

Date of Order : 05.03.2009

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20

Dated: 5th DAY OF MARCH 2009

PRESENT

Sri. Bajentri H.M, B.A, LL.B., President

Smt.C.V. Rajamma, B.Sc., LL.B., PGDPR, Member


COMPLAINT NO. 2266 OF 2008

Smt.M.R.Anuradha
D/o M.S.Rama Rao,
R/at No.93, 3rd Cross,
Opp. To GKW Layout bus stop,
Vijayanagar, Bangalore-560 040.

…. Complainant.

V/s

01. The Senior Divisional Manager,
National Insurance Company Ltd.,
Division – III, National Insurance
Building, Ground Floor, No.8,
India Exchange Place, Kolkata – 700 001.

02. M/s Golden Multi Services Club Limited,
S.B.Mansion, 16, R.N.Mukherjee Road,
Kolkata – 700 001, Reptd. By its Manager.

03. M/s Golden Trust Financial Services,
No.71, (12/1) Shivakrupa, 8th Main,
2nd Block, Jayanagar, Bangalore – 011,
Reptd by its Branch Manager.

…. Opposite Parties

-: ORDER:-

This complaint is for a direction to Opposite Parties 1 & 2 to pay policy amount along with all the benefits and interest at 24% Per Annum and compensation of Rs.50,000/- towards hardship and mental agony, on the following grounds:-
Late M.S.Rama Rao – the Father of the complainant had taken a Group Personal Accident Policy for insured sum of Rs.50,000/- from Opposite Party No.1- The National Insurance Company Limited through Opposite Party No.2 – M/s Golden Multi Services Club Limited. The policy covered risk during the period from 08.10.2004 to 07.10.2014. Smt. Uma – the Wife of the insured and Mother of the complainant was the nominee under the policy. The insured Ramarao while traveling with his family members including nominee and the complainant met with an accident on 29.05.2005 and in the said accident Smt. Uma the Nominee and the husband of the complainant died on the spot and the insured Ramarao died on 07.06.2005 leaving behind the complainant and her brothers namely Guruprasad & Vijayakumar as the only legal heirs. The complainant and her brother Vijayakumar were treated at BGSAppolloHospital, Mysore and were discharged on 06.06.2005 with advise of absolute bed rest for one month. Mr.Guruprasad – the brother of the complainant through letter dated:23.07.2005 informed the Branch Office of Opposite Party No.2 about the death of his parents and intimated them to note the address of the complainant for all future correspondence and left for USA on job assignment. The Opposite Party No.1 acknowledged receipt of the documents on 26.07.2005. Through letter dated:15.09.2005, Opposite Party No.2 furnished all the documents to Opposite Party No.1 for processing the claim. The complainant who lost her parents as well as her husband was in deep mental shock. Her brother Vijaya Kumar who also met with an accident had temporarily lost his memory. After slowly recouping from the shock, she started to regularize the claim papers of her father with no one to support her and she was eagerly waiting for Opposite Party No.1 to settle the claim as she was in need of finance for medical expenses and day to day needs. In spite of sending about six reminders and several ‘e’ mail messages, Opposite Party No.1 failed to settle the claim. When she was about to approach the insurance Ombudsmen, she received a letter dated:10.03.2008 from Opposite Party No.1 enclosing photo-copy of the letter dated:09.03.2006 purporting to have been written by them. She was shocked to note the contents of the letter dated:10.03.2008 stating that it appears that as per the letter dated:09.03.2006 the file was closed as no claim. In the said letter, one of the condition mentioned in the policy is that the intimation is to be submitted by the claimant or Opposite Party No.2 within one calendar month and the claim is not entertainable in terms of the policy since no intimation was submitted either by the claimant or by Opposite Party No.2 and hence claim may be treated as no claim. In spite of letter dated:23.07.2006 of his brother and the letter dated:05.09.2005 of Opposite Party No.2 intimating regarding change of address, Opposite Party No.1 has not bothered to note the same in the records and have sent the letter dated:09.03.2006 to the old address that too to the dead person namely Smt.Uma nominee under the policy. Upon discharge from the Hospital, the complainant had taken immediate steps to procure all the necessary documents and furnish the same to Opposite Party No.1. Without appreciating the facts and circumstances, Opposite Party No.1 has rejected the claim on flimsy grounds and has thus miserably failed to discharge their obligation and the said act amounts to deficiency in service on the part of the Opposite Party Nos. 1 & 2. Hence, the complaint.



2.In spite of service of notice, Opposite Party No.1 – the Insurance Company has remained absent. The Opposite Party No.2 – M/s Golden Multi Services Club Limited has opposed the claim on the following grounds:-
The complaintagainstOpposite Party No.2 ismisconceived, devoid of merits and is liable to be dismissed. The contention that Opposite Party No.2 is an authorized agent of Opposite Party No.1 is denied. The letter dated:05.09.2005 was addressed to Opposite Party No.1 along with the documents for processing the claim. Opposite Party No.1 has addressed a letter dated:10.03.2008 with a reference to the letter dated:09.03.2006 that the file with respect to the claim of Mr.Rama Rao has been closed as no claim. As the family of the complainant was in a traumatized condition due to the tragic death of the insured apart from the loss of near and dear ones, the requirement of ninety days as stated in the policy could not be complied with due to the late receipt of the essential documents. The said requirement is not a mandatory condition but is discretionary in nature just to avoid delays in processing the claim. Therefore there is no violation of policy conditions as stated in the letter dated:09.03.2006 and 10.03.2008 by virtue of operation of waiver clause as is generally available under personal accident insurance policy. The rejection of claim should have been communicated to the complainant within 30 days from the date of receipt of documentary evidence relating to settlement of claim namely before 07.10.2005 as per the requirement of IRDA. Opposite Party No.1 being a highly organized public sector undertaking delayed six months in sending a stereotyped letter pointing out the aspect of the alleged delay of three months. As per the memorandum of understanding between Opposite Parties 1 & 2, GMSC Kolkata is empowered to extend the insurance coverage to its members. As per the MOU only Opposite Party No.1 has exclusive right and authority to entertain or process and settle the claim. Opposite Party No.2 cannot be fixed with any liability as it is only a facilitator without having liability about the settlement of the claim. It cannot be regarded as on authorized agent and in no way it can act as insurer or step into the shoes of the insurer as it would be contrary to law. The unavoidable delay in submitting the claim form cannot be a ground for denial of liability on the part of the insurance company. Opposite Party No.1 has not disputed the policy in respect of Mr.M.S.Rama Rao. In Appeal No.2231/2007, in similar circumstances, the Hon’ble State Consumer Dispute Redressal Commission has held that since Insurance coverage is not disputed, it is for the insurance company to settle the claim. On these grounds, the Opposite Party No.2 has prayed for dismissal of the complaint.



3.Subsequent to the filing of the complaint, the complainant got impleaded M/s Golden Trust Financial Services as Opposite Party No.3 who in the version has contended as under:-
Opposite Party No.3 is not a proper party to the complaint. The brother of the complainant had given intimation on 20.07.2005 about the death of the policy holder to Opposite Party No.3 instead of intimating Opposite Party No.2. Opposite Party No.3 is not related in any way to the transaction in question. The memorandum of understanding is only between Opposite Parties 1 & 2. Opposite Party No.3 forwarded letter dated:20.07.2005 to the brother of the complainant along with the claim form to facilitate the claim process. The brother of the complainant addressed a letter dated:23.07.2005 intimating the address of the complainant for future correspondence along with the duly filled claim form. The same was communicated to Opposite Party No.2. No claim has been made against Opposite Party No.3. There is no deficiency in service on the part of Opposite Party No.3 and as such the complaint is liable to be dismissed.


4. In support of the respective contentions both parties have filed affidavits and have produced copies of documents. The learned counsel for the complainant filed written arguments. We have the heard arguments of the learned counsel for Opposite Party Nos. 2 & 3.

5. The points for consideration:-
1.Whether the complainant has proved deficiency in service on the part of the Opposite Parties?
2.Whether the complainant entitled to the relief prayed for in the complaint?


6. Our findings are:-

Point No.1 : In the Affirmative as

Against O.P. Party No.1

Point No.2 : As per final order

For the following,

-:REASONS:-

7. Since the Opposite Party No.1 the Insurer who has issued the insurance policy in favour of Ramarao – the Father of the complainant has remained absent, the material on record so far is as the insurance claim is concerned has gone unchallenged. On the own admission of the complainant, the insurance policy was obtained from Opposite Party No.1 through Opposite Party NO.2. Admittedly the insurance policy issued was a Group personal Accident insurance policy covering the risk of the members of Opposite Party No.2. - Club. Except the fact that Opposite Party No.2 had facilitated in issuance of insurance policy in respect of its members, noting is produced to show that Opposite Party No.2 is also responsible and liable for insurance claim. As such in our opinion no liability can be fixed on Opposite Party No.2 under insurance policy issued by Opposite Party No.1. If at all the complainant is entitled to any benefit under the insurance policy that can be only from Opposite Party No.1 and not from Opposite Party No.2. Though Opposite Party No.3 is also impleaded as a party to the proceedings, no claim or any allegations of deficiency in service against Opposite Party No.3 is made in the entire complaint. Therefore, the complainant also cannot claim any relief from Opposite Party No.3.



8. The fact that Ramarao - the Father of the complainant had subscribed to Group Personal Accident Policy covering the risk during the period from 08.10.2004 to 07.10.2014 is not disputed. That fact is clearly admitted by Opposite Party No.2. Under the said policy, Smt.Uma – the wife of the insured was the Nominee. It is stated that in the road accident that took place on 29.05.2005 the insured as well as the Nominee died. It is stated that Smt.Uma the Nominee died on the spot and Mr.Ramarao – the insured died on 07.06.2005. This fact is also not disputed. From the copy of the discharge summary issued by BGSAppolloHospital, Mysore, it is seen that the complainant and her brother were in-patient in the said Hospital from 29.05.2005 the date of the accident and were discharged on 06.06.2005. From the discharge summary pertaining to the complainant it is also clear that at the time of discharge from Hospital she was advised bed rest for one month. As per the letter dated:23.07.2005, the brother of the complainant had informed Opposite Party No.3 about the death of the insured and had also furnished the address of the complainant for future correspondence. In the version, Opposite Party No.3 has stated that the said letter was forwarded to Opposite Party No.2. Therefore, Opposite Party No.1 the insurer was supposed to make note of the address of the complainant for future correspondence. Opposite Party No.2 sent the claim forms and the documents to Opposite Party No.1 on 05.09.2005 for processing the claim. Thereafter Opposite Party No.1 claims to have sent the letter dated:09.03.2006 closing the file as no claim. Interestingly this letter dated:09.03.2006 was addressed to Smt.Uma – the wife of the insured who had died on 29.05.2005 in the accident. This letter is sent to old address of insurer though by the letter dated:23.07.2005 – the brother of the complainant had furnished the address of the complainant for the purpose of future correspondence. As can be seen from the letter dated:09.03.2006, Opposite Party No.1 treated the claim as no claim on the sole ground that the claim intimation was not given within 30 days. This ground on which Opposite Party No.1 repudiated the claim is not even appreciated by Opposite Party No.2 - M/s Golden Multi Services Club Limited. In the version, Opposite Party No.2 has stated that the requirement of 90 days as stated in the policy could not be complied with due to the late receipt of the essential documents on account of the circumstances in which the complainant was placed. It is also stated that the said requirement is not mandatory but is discretionary and even the intimation regarding the rejection of the insurance claim was not communicated within 30 days from the date of receipt of documentary evidence as per the requirements of IRDA. Admittedly the insured met with an accident on 29.05.2005 and died on 07.06.2005. In the said accident even the Nominee under the policy died on the spot, the complainant and her brothers, the only legal heirs were also hospitalized for some time. It is stated that the complainant also lost her husband in the said accident. In such circumstance, the complainant required some time to recover from the shock and after such recovery she was able to submit the claim form along with necessary documents to the insurance company. That being so, the insurance company having admitted the insurance cover was not justified in treating the claim as no claim on the sole ground that the claim intimation was not given within the time prescribed under the policy. Therefore in our opinion the repudiation of the claim by Opposite Party No.1 being not on reasonable grounds cannot be said to be justified. Therefore, the decision of Opposite Party No.1 in treating the claim as no claim clearly amounts to deficiency in service. Opposite Party No.2 has also produced the copy of the judgment in appeal No.2231/2007 decided on 11.03.2008 by the Hon’ble Karnataka State Consumer Disputes Redressal Commission. That was also a case arising out of the Group Personal Accident Policy issued by Opposite Party No.1 through Opposite Party No.2. The District Forum allowed the complaint and directed both Opposite Parties to pay the insurance sum of Rs.50,000/- jointly and severally. Opposite Party No.2 M/s Golden Multi Services Club Limited took up the matter before the Hon’ble State Commission in appeal. The Hon’ble State Commission has held that “since the insurance cover is not disputed it is for Opposite Party Nos. 2 & 3 (Insurance Company) to settle the claim and there was no need for the District Forum to direct the Opposite Party No.1 M/s Golden Multi Services Club Limited to pay the amount jointly and severally along with the insurance company. In that case also the claim was repudiated on the ground that there was delay in making the claim. But that contention was rejected by District Forum. In the case on hand also for the reasons stated above, in our opinion the rejection of the claim on account of delay in making the claim, cannot be up-held. Therefore we hold that Opposite Party No.1 is liable to pay the insured amount to the complainant. Since the insured as well as the Nominee have died in the accident, as legal heir of the insured and the Nominee, the complainant is entitled to claim the insured amount from the Insurance Company namely Opposite Party No.1. In the result we pass the following:-

-:ORDER:-

• The complaint is allowed as against Opposite Party No.1 and dismissed as against Opposite Party Nos.2 & 3.
• The Opposite Party No.1 is directed to pay the insurance sum of Rs.50,000/- to the complainant together with interest thereon at 9% Per Annum from 05.09.2005 – the date of claim till the date of payment. The Opposite Party No.1 shall also pay cost of Rs.5,000/- to the complainant. Compliance of this order shall be made within eight weeks from the date of communication.
• Send a copy of this order to both parties free of costs immediately.
• Pronounced in the Open Forum on this the 5th DAY OF MARCH 2009.

Sd/- Sd/-
MEMBER PRESIDENT

BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

Dated this the 13th March 2009

COMPLAINT NO.210/2008

(Admitted on 30.07.2008)

PRESENT: 1. Smt. Asha Shetty, B.A. L.L.B., President
2.Smt. Sulochana V. Rao, Member
3.Sri. K. Ramachandra, Member
BETWEEN:
Mr.Prakash Kumar,
S/o. Ishwarlal,
Aged about 49 years,
Residing at 102,
Janeshwari Apartments,
“B” Block, V.T. Road,
Mangalore – 575 001. …….. COMPLAINANT

(Advocate: Sri.U.Mohammad Ali).

VERSUS

The Divisional Manager,
The National Insurance Co. Ltd.,
II Floor, Rasik Chambers,
Opp. Central Market,
Market Road,
Mangalore – 575 001. …..…. OPPOSITE PARTY

(Advocate: Sri.A.L. Shenai).


***************
ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT;

1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The allegation of the Complainant is that, the Complainant has in his individual capacity has taken a mediclaim policy, the said policy is valid from 27.4.2006 to 26.4.2007 and the said policy was renewed on 27.4.2007 and valid upto 26.4.2008. The Complainant all of a sudden fell ill and admitted to the KMC hospital, wherein he has been diagnosed of wall Myocardial infarction and for the said disease he admitted to the hospital on 14.9.2007 and discharged on 20.9.2007 and spent Rs.45,000/- for medical expenses. Thereafter the Complainant lodged a claim application, the said claim was repudiated through letter dated 25.1.2008 by stating that “medical records have been manipulated which amounts to suppression of facts and not entertain the claim of the Complainant”.
The Complainant contended that, he did not suffer from any disease at the time of taking the policy and hence it is submitted that the repudiation made by the Opposite Party is not justifiable and filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from the Forum to the Opposite Party to pay Rs.45,000/- towards the medical expenses and Rs.27,000/- claimed as compensation and cost of the proceedings.

2. Version notice served to the Opposite Party. Opposite Party appeared through their counsel and filed version admitted the issuance of the policy and the validity of the policy but it is submitted that the Complainant admitted to the KMC hospital and the hospital records shows that the Complainant was known case of diabetic since 3 years and was on medical advice. The problem chart of diabetic clinic No.1812 of the KMC, Attavar Mangalore showed that the Complainant was on regular treatment for diabetes in the said hospital from 16.1.2006 i.e., much before the policy. It is contended that the Complainant knew that he was diabetic and had not disclosed this in the proposal and he had intentionally suppressed his ailment and hence the Complainant is not entitled for any mediclaim because of the suppression of material facts and prayed for dismissal of the complaint.

3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
(i)Whether the Complainant proves that the Opposite Party has committed deficiency in service?

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






(iii)What order?

4. In support of the complaint, Mr.Prakash Kumar (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C8 were marked for the Complainant as listed in the annexure. One Smt.Shyamala Bhat (RW1), Officer of the Opposite Party Company filed counter affidavit and answered the interrogatories served on her. Ex R1 to R9 were marked for the Opposite Party as listed in the annexure. The Complainant produced notes of arguments along with citations.
We have considered the notes of arguments submitted by the learned counsel and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.





Reasons

5. Point No. (i) to (iii):
In the instant case, it is undisputed fact that the Complainant obtained medicalim policy valid for the period from 27.4.2007 to 26.4.2008. Earlier to that the Opposite Party had issued a similar policy in favour of the Complainant, it was valid between 27.4.2006 to 26.4.2007 for a sum of Rs.1,00,000/-.
In the instant case, the claim of the Complainant was repudiated for suppression of the facts and contended that the Complainant was a diabetic and had not disclosed in the proposal, he has suppressed the above disease.
It could be seen from the records i.e., Ex C6, C7 and C8 i.e., copy of the medical certificate issued by the KMC hospital and copy of the case sheet along with discharge summary pertaining to the Complainant reveals that, the Complainant was admitted to the KMC Hospital Attavar, Mangalore with the complaint of abdominal discomfort and burping since 3 days and admitted to the hospital on 14.9.2007. After the diagnosis it is revealed that he is suffering from Acute Anterolateral Wall Myocardial Infarction. The Complainant has been treated in the said hospital and discharged on 20.9.2007. As per the records, i.e., cash/credit bill issued by the KMC Hospital reveals that the Complainant has spent Rs.11,604.85 towards the hospital bill. The Ex C4 is the repudiation letter issued by the Opposite Party dated 25.1.2008 reveals that ‘the medical records submitted by the Complainant that the certain details printed on the records have been manipulated which amounts to suppression of facts material to the mediclaim insurance policy and stated that they cannot entertain the claim’. But in the version the Opposite Party taken a contention that the Complainant was suffering from diabetic since 3 years and he has taken regular treatment in KMC hospital and produced diabetic clinic proforma i.e., problem chart issued by the KMC hospital.
It is admitted that on the basis of the claim form dated 29.10.2007 (i.e., Ex R3) which was submitted by the Complainant, the risk on the life of the Complainant was accepted and the premium/acceptance letter was issued and policy also issued to the Complainant. The hospital records mainly relied by the Opposite Party i.e., a diabetic clinic proforma of KMC Attavar reveals that the Complainant was a known diabetic since 16.1.2006 and he is on regular follow up treatment.
We have perused the entire hospital record i.e., Ex R1 diabetic clinic proforma/problem chart issued by the KMC hospital Attavar, Mangalore reveals that the Complainant was diabetic since 16.1.2006 and he is under regular medication. But the said records do not reveal that the Complainant was admitted to the above said hospital and he was operated or taken treatment for the diabetes but it is a chart maintained in the hospital shows that he was a patient of diabetic and followed up the regular treatment. But on 14.9.2007 the Complainant was admitted at KMC Attavar, Mangalore with the complaint of abdominal discomfort and he has been diagnosed of Acute Anterolateral Wall Myocardial Infarction and discharged on 20.9.2007 which was not pre-existing disease. The Ex R1 i.e., diabetic clinic proforma/problem chart issued by the KMC hospital and the discharge summary issued by the very same hospital which has been heavily relied upon by the Opposite Party in support of repudiation of the claim stating that insured was suffering from diabetes which means prior to the acceptance of the policy by the Complainant.
In the instant case, the Complainant suddenly developed abdominal discomfort, chest pain and he was admitted to KMC Attavar, Mangalore and there he was diagnosed as Acute Anterolateral Wall Myocardial Infarction. The above disease came to know only after diagnosed by the KMC hospital. The sudden attack of the above disease we can say unknown or undetected disease is though rare but not unknown.
On the concept of concealment of factum of disease like diabetes or hypertension etc. for the purpose of insurance claims we have come out with the following conclusions and the criteria for determining the legality of the repudiation of the claim. Mere reference from the hospital record of KMC Hospital that the Complainant was having known diabetes since 3 years cannot be used as a circumstances for concealment of such a disease for which the insured had neither been hospitalized nor operated upon in the near proximity of obtaining the policy. The conclusions are as under:-
(i)‘Disease’ means a serious derangement of health or chronic deep-seated disease frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the mediclaim policy.
(ii)Such a disease should not only be existing at the time of taking the policy but also should have existed in the near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past say 6 months or a year he is supposed to dispose the said fact to rule out the failure of his claim on the ground of concealment of information as to pre-existing disease.

In our view, the hypertension, diabetes, occasional pain, cold, headache arthrit is and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day-to-day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these disease or any other disease. If insured had been even otherwise living normal and healthy life and attending to his daily chores like any other person and is not declared as a diseased person as referred above, he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months or years. The diabetes and the hypertension cannot be branded as diseased person. In our opinion, Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing mediclaim policy whether a person is fit to be insured or not. It appears that, Insurance Companies do not discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business. Thus, any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible nor is ‘exclusion clause’ invoke able’.
We find that claim of the insured should not be repudiated by taking a clue or remote reference to any so called disease from the discharge summary or the case sheets of the insured by invoking the exclusion clause or non-disclosure of pre-existing disease unless the insured had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity as referred above.
We have been referred to a decision reported in Delhi State Consumer Disputes Redressal Commission, New Delhi; II (2004) CPJ 452; in a case Life Insurance Corporation of India versus Sudha Jain, held that –
“Consumer Protection Act, 1986 – Section 2(1)(g) – Life Insurance – Suppression of material facts – Claim repudiated on ground of suppression of fact that deceased was diabetic – Forum allowed complaint – Hence appeal by Opposite Party – Maladies like diabetes, hypertensions being normal wear and tear of life, cannot be termed as concealment of pre-existing disease – Insured not bound to disclose diseases easily detectable by basic tests like blood test, ECG – If at time of policy, deceased suffering from disease likely to cause death shortly, doctors on panel of OP would have detected easily – No suppression of material facts – Orders of Forum upheld”.
[Pg.453 (Paras 7, 8, 9)]

The ratio of the above decision is aptly applicable to the present case in hand.
In the instant case, no doubt the Complainant is aged about 49 years and he is diabetic and taken follow up treatment in KMC hospital. But he is living normal life with regular treatment but there is no record to show that he had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity as referred above. Just because he has taken follow up treatment to control the diabetes in the above hospital it cannot be said that he has concealed the disease. Since the Complainant living healthy and normal life cannot be accused of concealment of pre-existing disease while taking mediclaim policy. For instance, sometimes insured may not aware of his suffer from massive attack without having been hospitalized. But in the present case, the Complainant is a young man though he is a diabetic he is living normal life. The discharge summary produced by the Complainant shows that the Acute Anterolateral Wall Myocardial Infarction, the said disease faced by the Complainant unknowingly and all of a sudden. We can say it is a sudden attack of the disease and he was taken treatment and spent the amount as per Ex R4. The repudiation made by the Opposite Party in the present case appears to be very vague and not justifiable and hence the service rendered by the Opposite Party i.e., National Insurance Company Limited amounts to deficiency.
However taking overall view of the facts of the case, the Complainant is entitled Rs.10,604.85 as per Ex R4 i.e., bill issued by the KMC Hospital. By considering the above said facts, we hereby direct the Opposite Party i.e., National Insurance Company Ltd., to pay Rs.10,604=85 to the Complainant along with interest at 9% p.a. from the date of claim application till the date of payment and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

6. In the result, we pass the following:

ORDER

The complaint is allowed. Opposite Party i.e., National Insurance Company Ltd., is hereby directed to pay Rs.10,604.85 to the Complainant along with interest at 9% p.a. from the date of claim application till the date of payment and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 13th day of March 2009.)



PRESIDENT
(SMT. ASHA SHETTY)



MEMBER MEMBER

(SMT.SULOCHANA V.RAO) (SRI. K.RAMACHANDRA)















APPENDIX


Witnesses examined on behalf of the Complainant:

CW1 – Mr.Prakash Kumar – Complainant.

Documents marked on behalf of the Complainant:
Ex C1 – : Original copy of the Mediclaim policy No.604300/48/07/8500000124.
Ex C2 – : Photocopy of the old mediclaim of the Complainant.
Ex C3 – : Copy of application for compensation under mediclaim.
Ex C4 – 25.01.2008: Copy of the letter issued by the Opposite Party.
Ex C5 – 22.02.2008: Copy of the reply letter issued by the Complainant to the Opposite Party.
Ex C6 - : Copy of the medical certificate issued by KMC Hospital, Attavar to the Complainant.
Ex C7 - : Copy of the case sheet of the Complainant.
Ex C8 – 14.09.2007: Copy of the Discharge summary issued by KMC Hospital.

Witnesses examined on behalf of the Opposite Party:
RW1 – Smt.Shyamala Bhat, Officer of the Opposite Party Company.

Documents marked on behalf of the Opposite Party:
Ex R1 – : Authenticated copy of Diabetic Clinic Proforma No.1812 from KMC Hospital.
Ex R2 – : Original of the Mediclaim policy No.604300/ 48/08/8500000105.
Ex R3 – 29.10.2007: Insurance Claim form submitted by Complainant before the Opposite Party.
Ex R4 -20.09.2007: Bill for Rs.10,104.85 from the KMC provided by the Complainant to the Opposite Party.
Ex R5 – : Certified copies of KMC’s admission record pertaining to the Complainant.
Ex R6 - : History and physical examination report of the Complainant (3 sheets).
Ex R7 - : Copy of the discharge summary.
Ex R8 – 18.12.2007: Bill Break up for bill No.CS/1210538 of the Complainant issued by KMC Hospital.
Ex R9 - : Attested copy of certificate of Insurance in favour of the Complainant and his family (2 sheets).


Dated:13.03.2009 PRESIDENT

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MYSORE

No.845, 10th Main, New Kantharaj Urs Road, G.C.S.T. Layout, Kuvempunagar, Mysore - 570 009

consumer case(CC) No. CC/09/50

G. Sathyanarayana
...........Appellant(s)
Vs.

National Insurance Co. & 2 others

Chithra Hospital

M.D. INdia Health Care Pvt. Ltd.
...........Respondent(s)

BEFORE:
1. Smt.Y.V.Uma Shenoi
2. Sri D.Krishnappa
3. Sri. Shivakumar.J.

IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE PRESENT: 1. Shri.D.Krishnappa B.A., L.L.B - President 2. Smt.Y.V.Uma Shenoi M.Sc., B.Ed., - Member 3. Shri. Shivakumar.J. B.A., L.L.B., - Member CC 50/09 DATED 26-03-2009

ORDER


Complainant G. Sathyanarayana, S/o late T. Guruvaiah, No.3401, 6th Main road, Thilak Nagar, Mysore-21. (By Sudarshan .V, Advocate)

Vs.

Opposite Party 1. The Manager, National Insurance Company Ltd No:371, 3rd floor, Prestige Shopping Arcade, Ramaswamy Circle, Mysore-24. 2. Manager, Chythra Hospital, No:25:1A Irwin Road, Mysore-1. 3. Manager, M.D. India Health Care Services Private Limited, No.90;2, 1st & 2nd floor, Near B.M.T.C. Depo, Bangalore-27. ( Exparte) Nature of complaint : Deficiency in service Date of filing of complaint : 12-02-2009 Date of appearance of O.P. : 13-03-2009 Date of order : 26-03-2009 Duration of Proceeding : 13 Days PRESIDENT MEMBER MEMBER Sri.D.Krishnappa, President 1. The grievance of the complainant who has filed this complaint against the opposite parties is, that he has taken a medical policy from the first opposite party in favour of his daughter which is valid from 02.07.2008 to 01.07.2009. On 01.12.2008 his daughter S. Poojitha, 7 years old underwent a surgery in the second opposite party’s hospital and was discharged on 07.12.2008 and incurred an expenditure of Rs.29,661/-. On his claim for reimbursement the Insurance Company has only paid Rs.22,000/- to the first opposite party as against 29,661/- and he has paid Rs.7,661/- in cash, but the first and third opposite party have failed to reimburse the whole expenditure and therefore has prayed for a direction to first and third opposite parties for reimbursement of the balance amount and to award cost.


2. Notice were ordered to all the opposite parties. The first and third opposite parties were duly served but remained absent are set exparte. On behalf of the second opposite party the chief executive officer appeared personally and submitted that he had sent the claim of the complainant with all original bills for reimbursement of Rs.29,621/-, but the Insurance Company has only paid Rs.22,000/- and there is no deficiency at this end. This Forum finding no fault of the second opposite party discharged him from any liability.



3. In the course of enquiry in to the complaint, the complainant has filed his affidavit evidence and relied upon the bill issued by the second opposite party, copy of medical policy and copies of letters of opposite parties. Heard the complainant, who is in person and perused the records.


4. Copy of the policy produced by the complainant disclose that his daughter Poojitha is one of the beneficiaries on whom medical insurance is taken. Therefore the surgery and treatment that the daughter of the complainant undergone from 01.12.2008 and treatment till 07.12.2008 is within the validity period of the policy. The copy of the letter addressed by the second opposite party and the statement of the second opposite party reveal that he had forwarded the claim of the complainant to the Insurance Company for reimbursement of the medical expenditure of Rs.29,621/-. As against this the first and third opposite parties found to have issued authorization for sum of Rs.29,000/- only and the balance of Rs.7,661/- was received from the complainant. Through a letter of a Branch Manager of the first opposite party addressed to their head office i.e., the third opposite party he had sought some particulars but nothing is placed as to what happened thereafter. Reimbursement of Rs.22,000/- by the first and third opposite parties disclose that the first and third opposite parties had received claim of the complainant with original bills but they have authorized only for sum of Rs.22,000/- but they have not offered any reasons in repudiating the claim of the complainant for the balance amount Rs.7,661/-. It is not their case that amount is inadmissible. Thus in the absence of any explanation or reasons by the first and third opposite parties in not reimbursing the balance of Rs. 7,661/- they are to be held as deficient. The first and third opposite parties though are served have not chosen to appear and put up any defense. Hence on considering, the entire material placed before us, we hold that the complainant has proved the deficiency of service of the first and third opposite parties which has remained rebutted, as the result the complaint needs to be allowed and we pass the following order.


ORDER


1. The complaint is allowed.

2. The opposite parties No.1 and 3 are jointly and severally are held to have caused deficiency in their service and are directed to pay Rs.7,661/- to the complainant within 30 days from the date of this
order.

3. The opposite parties No.1 and 3 shall also jointly and severally pay damages of Rs.5,000/- to the complainant for his mental agony, hardship and uncertainty within 30 days from the date of this order.


4. In the event of opposite party No.1 and 3 failing to pay the above amounts within the stipulated periods, they shall pay interest at 12% p.a. on the above amounts from the date of this order till the date of payment.


5. The opposite party No.1 and 3 shall also pay cost of Rs.500/-. 6. Give a copy of this order to both the parties according to rules.

IInd ADDL. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANGALORE URBAN

No.1/7, Swathi Complex, 4th Floor, Seshadripuram, Bangalore-560 020

consumer case(CC) No. CC/2465/2008

T.L.N. Murthy
...........Appellant(s)
Vs.

National Insurance Co., Ltd.,
...........Respondent(s)

BEFORE:


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):




ORDER

Date of Filing:17.11.2008 Date of Order:05.03.2009 BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20 Dated: 5TH DAY OF MARCH 2009 PRESENT Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President. Smt. D. LEELAVATHI, M.A.LL.B, Member. Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member. COMPLAINT NO: 2465 OF 2008 T.L.N. Murthy, S/o Late T.L. Narayana Rao, 462/40, 8th Cross, Mahalakshmi Layout, Bangalore 560 086. Complainant V/S National Insurance Company Limited, Division-IV, Bangalore, No. 16, 2nd Floor, Kumara Krupa Road, Near Shivananda Circle, Bangalore 560 001. Opposite Party


ORDER By the President Sri. S.S. Nagarale The complainant submits that having received unjustified response from opposite party company against his claim for reimbursement of medical expenses incurred by him against his medical policy. Complainant submitted that he had first heart problem on 9th May-2000 at Bangalore and underwent treatment at Wockhardt Hospital in Bangalore. He took medical policy from opposite party for himself and his wife. While applying for the first policy he has declared his heart problem as preexisting and accordingly heart disease was excluded for any claim. He has continued his policy with the opposite party company without any break from 2002-03 to 2008-09. Complainant has furnished policy numbers and effective dates of policies in his complaint in para-3 of the complaint. On 29/02/2008 he had heart problem during his visit to BHEL, Tiruchirapalli, Tamil Nadu. On 06/03/2008 he returned to Bangalore and admitted to Wockhardt Hospital and Health Institute for further treatment. He was attended by Dr. P. Ranganath Nayak, Cardiologist. On 07/03/2008 there was operation and he was discharged on 09/03/2008. The exclusion clause for pre-existing disease had been revised and the policy holders having a non claim continuous policy for 4 years can put up their claim for settlement. The complainant submitted claim application on 17/03/2008. After repeated follow up, company declined to entertain the claim on the plea that the occurrence of disease was during the tenure of the previous year mediclaim policy.

The rejection of the claim by the company amounts to deficiency in service. The opposite party company bound to pay charges incurred by him. The beneficial amended rules is to be considered liberally in favour of the beneficiary since new rules covering pre-existing disease came in to effect from 01/04/2007 during the tenure of complainant’s policy. Therefore, he is entitled to claim the benefits or the expenses incurred or reimbursement. Complainant prayed that he may be compensated to the tune of Rs.2,22,805/- towards the cost incurred for undergoing treatment to the mental agony, harassment etc.,.


2. Notice issued to opposite party. Opposite party put in appearance through Advocate and defence version filed stating that the opposite party company had issued policies to the complainant from 23/03/2002 to 22/03/2003 and the same was renewed from time to time till 22/03/2009. The complainant had obtained mediclaim policy declaring in the proposal form that he was suffering from heart ailment. All pre-exiting diseases are excluded under the policy. Hence, the opposite party is not liable. Therefore, claim is repudiated. The opposite party submitted that new rules came into force on 01/04/2007. Accordingly, all the pre-existing diseases are covered only after expiry of 4th year policy which was taken continuously from the National Insurance Company. It is submitted that this rule is prospective and not retrospective. Hence, does not fall under the new rules. The opposite party requested to dismiss the complaint.

3. Affidavit evidences are filed. Arguments are heard.


4. The point for consideration is:- “Whether the opposite party is justified in repudiating the claim of the complainant?”


REASONS


5. It is an admitted case of the parties that, the opposite party company had issued hospitalisation and domiciliary hospitalisation benefit policy to the complainant right from 2002-2003 to 2008-09 continuously without any break. The complainant has totally obtained 7 policies and he has given policy numbers and effective date of all the policies in his complaint. The complainant got renewed his policies from time to time till 22/03/2009. It is the case of the complainant that he was admitted to Wockhardt Hospital and Health Institute, Bannerghatta Road, Bangalore. He was attended by Dr. Ranganath Nayak, Cardiologist and he underwent operation on 07/03/2008 and discharged from the Hospital on 09/03/2008. It is the case of the complainant that the exclusion clause for pre-existing diseases hitherto existing, had been revised and the policy holders having a non claim continuous policy for 4 years and above can put up their claim for settlement. The new clause 4.1 was made applicable and effective from 01/04/2007. Under this clause all diseases/injuries which are pre-existing when the cover incepts for the first time however those diseases will be covered after continuous claim pre policy years. For the purpose of applying this condition the period of cover under mediclaim policy taken from National Insurance Company only will be considered. Based on the amendment to the exclusion clause for claim settlement the complainant submitted his application on 17/04/2008. The opposite party declined to entertain the claim on the plea that the occurrence of diseases was during the tenure of the previous year’s mediclaim policy. The defense of the opposite party is that claim has been rejected or repudiated on the plea that new rules of covering pre-existing diseases came in to effect from 01/04/2007 and the complainant’s policy was renewed from 23/03/2007 to 22/03/2008. Therefore, the new rules will not be applicable to the case of the complainant. This argument of the opposite party cannot be acceptable at all. Admittedly, new rules came in to effect from 01/04/2007. The complainant had taken policy right from 2002 to 2003 and his policy got renewed continuously without any break. The relevant policy which was taken on 22/03/2007and it was effective to till 23/03/2008 and during the effective period of this policy, the amendment to the exclusion rule came in to force on 01/04/2007. When the amended rule came into force the policy was in force the benefit of new rule should be extended to the policy holders those who have taken treatment during the effective period of policy. The argument of the opposite party that the new rule is only prospective and not retrospective cannot be accepted. It is not fair and proper to interpret that the claim of the complainant does not fall under the new rule.

The new rule admittedly came into force on 01/04/2007 and under the said rule, the pre-existing diseases are covered. The beneficial amendment to the rule is to be considered liberally in favour of the beneficiary. Policy covering pre-existing diseases shall have to be interpreted to the benefit of the beneficiary. If any doubt arises in the interpretation of rule or statute a interpretation which is favourable to the beneficiary shall have to be given effect. Consumer Protection Act is a social and benevolent legislation intended to protect better interest of the consumers.


The complainant in this case had continuously taken policy right from 2002-03 by paying premium amount. During the effective period of policy he underwent treatment in Wockhardt Hospital and spent amount. The complainant submitted the Hospital bill for Rs. 1,77,239/- and medicine expenses bill for Rs.2,566/. As per the policy in 603900/48/06/8500001472 the sum assured is Rs.1,60,000/-. The amended rule never says that the benefit of amendment will not be applicable for policies renewed during effective period from 23/03/2007 to 22/03/2008. The date of implementation of the rule was 01/04/2007 and on that date the policy of the complainant was in force and it was effective. Therefore, the benefit of the rule shall be given to the complainant since he was holding effective mediclaim policy. In case the mediclaim is rejected for technical reason the very purpose of health insurance will be defeated.



No purpose will be served in taking health policy if the company goes on rejecting the claim on technical grounds. In this case the opposite party company is not justified in repudiating the claim put up by the complainant. Therefore, the complainant is entitled to sum of Rs. 1,60,000/-, the sum assured. The complainant has claimed some more amounts and also compensation for mental agony etc.,. The question of granting compensation for mental agony does not arise. The ends of justice will be met in directing the opposite party to pay Rs.1,60,000/- the sum assured to the complainant. In the result, I proceed to pass the following:-



ORDER

6. The Complaint is partly allowed. The opposite party is directed to pay Rs. 1,60,000/-(sum assured) to the complainant within 30 days from the date of this order failing which the said amount carries interest at 12% p.a from the date of this order till payment/realization.

R. Loganathan,
S-1, Priyadarshni Apartments, Complainant
92-A, High School Road,
Ambathur,
Chennai – 600 053.

Vs

1. T.T.K. Healthcare Services Pvt. Ltd.,
Represented by its Manager,
Mr. Balamurugan,
“ Anmol Palani “, No.88, G.N. Chetty Road, Opposite parties
L.2, T. Nagar, Chennai – 600 017.

2. National Insurance Co., Ltd.,
Represented by Branch Head
( Divisional Manager)
Divisional Office,
1, Greams Road,
Chennai – 600 006.

Date of Complaint : 20.08.2007
M/s. K. Rajasekaran & S. Rajeni Ramodass : Counsel for the complainant
M/s. Dr.S.V.Joga Rao,S. Radhapyari, : Counsel for the 1st OP
Balasubramanya Bhat and SakriaBaby

M/s.N. Vijayaraghavan & M.B. Raghavan : Counsel for the 2nd OP

ORDER

THIRU.P. ROSIAH, PRESIDENT.
Complaint under section 12 (1) of the Consumer Protection Act,1986.


1. The main averments of the complainant are as follows:
The complainant had taken health care expenses policy from the 2nd opposite party. He underwent an operation in June 2006 and made claim for Rs.17,650/-. But the opposite party sanctioned only Rs.15,000/-. On earlier occasion, the bill claimed by the complainant for Rs.18,150/- was sanctioned in May 2006. Hence, there is deficiency in service on the part of the opposite party. Therefore, the complainant has filed this complaint for payment of Rs.2,650/- being the difference between the bill amount and the amount sanctioned by the opposite party and compensation of Rs.1,00,000/- and cost of the complaint.


2. The 1st opposite party filed version and contended inter alia that the concerned hospital had submitted pre-authorization only for an amount of Rs.15,000/- which has been approved and paid by the 1st opposite party directly to the hospital. The additional amount which exceeded pre-authorization limit has been disallowed. If the complainant submits relevant bills, the opposite party is willing to settle the same. Hence prayed for the dismissal of the complaint.


3. The 2nd opposite party filed version and contended inter alia that the complainant had filed medi-claim bill of insurance. The claim was lodged for that treatment underwent on 05.01.2007 for Rs.17,650/- . Under the terms and conditions of policy of the Insurance, only Rs.15,000/- was admissible and as such the amount was settled as the claim settled in full. The complainant is eligible only for Rs.6050/- under the head lab expenses as against Rs.7500/- and the amount of Rs.1200/- claimed under the other heads was disallowed. But the claim of the complainant is without any basis and prayed for the dismissal of the complaint.


4. Proof affidavits have been filed by both the complainant and the opposite parties. Exhibits A1 to A10 have been marked on the side of the complainant. No documents were marked on the side of the opposite party.


5. The points that arise for consideration are as follows:
1) Whether there is any deficiency in service on the part of the
opposite party?
2) To what relief the complainant is entitled to ?


6. Point No.1: Admittedly, the complainant had taken insurance policy with the 2nd opposite party for health care expenses. The complainant had submitted bills for Rs.17,650/- in June 2006 for Rs.17,650/- issued by the Guest Hospital. The opposite parties settled the amount of Rs.15,000/- only. The complainant prayed for the sanction of different amount of Rs.2650/-. The contention of the 2nd opposite party is that as per the policy conditions expenses under head lab expense was claimed at Rs.7500/- but the complainant permitted to claim only Rs.6050/- and the claim of Rs.1200/- under other head was disallowed. The contention of the 1st opposite party is that they are prepared to settle the claim if necessary bills are submitted by the complainant.


7. We have heard rival submissions and perused the materials on record. Ex A4 is the medical bill issued by the Guest hospital dated 08.01.2007 for Rs.17,650/-. The complainant wrote a letter to the opposite parties to sanction the entire amount. The opposite parties have settled at Rs.15,000/-, by letter dated 23.05.2007. Ex A6 is the copy of the letter by the complainant to the opposite parties. The complainant has also field receipts for Rs.2650/- paid to the Guest Hospital on 11.05.2007. Ex A7 is the copy of the receipt. The opposite parties had not filed any documents to show that the complainant is not entitled to the amount of Rs.2650/-. In fact, the 1st opposite party would submit that they are prepared to sanction the claim if bills are submitted. In the absence of any policy conditions, the denial of payment of entire hospital amount to the complainant is nothing but deficiency in service on the part of the opposite parties.


8. Point No.2: In the result, the complaint is allowed. The opposite parties are jointly and severally directed to pay Rs.2,650/-, being the difference amount, Rs.10,000/- as compensation for mental agony and Rs.3000/- as cost of the complaint to the complainant within six weeks from the date of receipt of copy of this order, failing which the amount shall carry interest at the rate of 9% per annum till the date of payment.

1. Smt. Rukmini Balasaheb Dabhade, )
2. Mr. Shivaji Balasaheb Dabhade, )
Both R/at : 413, Shukrawar Peth, )
Talegaon Dabhade, Tal. : Maval, )
District – Pune. )… COMPLAINANT

:Versus :

National Insurance Company Ltd., )
586, Sadashiv Peth, Laxmi Road, )
Pune – 411 030. )… OPPOSITE PARTY

*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*
Per :- Smt. Joshi, Member Place : PUNE

// JUDGMENT //

The question that would arise for our determination is whether the Insurance Company is liable for alleged compensation of Rs.5,00,000/- alongwith interest and other consequential reliefs. The relevant facts of the case are as under :-

[2] The Complainant No.1 is the wife and the Complainant No.2 is the son of deceased Balasaheb B. Dabhade, who was an employee of Ordinance Depot Co-Operative Credit Society. During the course of employment on 8/8/2000, he suffered an accidental death i.e. drowning in a fire-brigade tank. Accordingly, the F.I.R. was lodged, Panchanama, Post-mortem and all legal formalities are complied with.

[3] The deceased Balasaheb B. Dabhade as an employee of the Ordinance Depot is the member of Ordinance Depot Co.Operative Credit Society Ltd., has obtained a Group Janata Accident Insurance Policy vide Policy No. 270200/47/61/272/98. The fatal death of the deceased occurred on 8/8/2000. The wife and son i.e. Complainants herein are the nominees to the said insurance policy had submitted the claim application to the Opposite Party on 4/10/2000. On scrutiny of the aforesaid application, the Opposite Party by letter dtd.19/3/2001 call for certain documents. The Complainants have made necessary compliances through their employer. On enquiry with the Ordinance Depot Co-Operative Credit Society Ltd., the Complainants learnt that the claim of the Complainant was repudiated on 6/6/2003 only with a view to defeat the legal rights of the Complainant. The ground stated therein are illegal and unjust. The Complainants then sent a legal notice dtd.6/11/2003. According to the Complainants, it is the willful failure to pay the amount due on policy on anticipatory ground of illness and nexus of drowning in the fire-brigade tank water is in itself a deficiency in service. The Complainants therefore pray that an amount of Rs.5,00,000/- under the Insurance claim be granted to them with interest cost and compensation. The Complainant No.1 has filed affidavit dtd.12/12/2003 and relevant documents, such, membership certificate, claim form, list of member in the Group Policy letter of employer dtd.28/9/2000, relevant police papers, post-mortem report, letter of Insurance Company dtd.6/6/2003, legal notice dtd.6/11/2003 etc..

[4] The Opposite Party has filed its written version and contested the claim of the Complainants. The written version is denial simplicitor. It is pleaded that the claim under the policy is not within one calendar month as per the terms of the policy. It is also pleaded that the Opposite Party has already informed the Ordinance Depot in respect of cancellation of long term Janata Group Accident Policy by letter dtd.11/12/2001 and therefore the covering period of 29/9/1998 to 28/9/2010 is curtailed to 29/9/1998 to 12/12/2001. The Opposite Party Insurance Company has refunded an amount of Rs.4,12,29,476/- to the Ordinance Depot Co-Operative Credit Society, Talegaon Dabhade and therefore is not liable to pay any compensation. It is therefore prayed that complaint be dismissed with cost.

[5] The Complainants were absent on the date of hearing, the Opposite Party has filed its written arguments and has reiterated the claim as in the written version.

[6] In the context of the aforesaid pleadings of the questions formulated in para (1) of the judgment would arise for our determination.

[7] In the present case, the Complainants while claiming an amount of Rs.5,00,000/- as compensation under the claim has not made an Ordinance Depot Co.Operative Credit Society Ltd., Talegaon Dabhade as a necessary party. Furthermore, the terms and conditions of Insurance Policy are not known to the Complainants also that the claim-form was sent through the employer. It is the Ordinance Depot, who could have enlighten us on the point of cancellation of long term Group Insurance Policy and refund that has been made by the Opposite Party to the Ordinance Depot, Talegaon Dabhade. In the circumstances, we cannot hold that the Insurance Company has repudiated the claim irrationally. The complaint is thus hit by non-joinder of necessary party.

[8] Admittedly, the Complainant’s husband suffered an accidental death by drowning. The police papers, post-mortem report support the contentions of the Complainants. We feel no reason to disbelieve the Complainant, but the contentions raised by the Opposite Party in letter dtd.6/6/2003 para (2) that “although the JMFC certified the death as due to drawning due to fall in water so far no documents are submitted to establish that the sickness has not proximately or directly contributed to the fall/death of the insured by drawning or otherwise” has not been controverted at any point of time by the Complainants. Mere saying that it is unjust and improper is not sufficient. The Complainants have to satisfy the Forum that the repudiation is not as per the legal terms and conditions of the policy so as to fix the liability on the part of the Opposite Party. No rejoinder is filed by the Complainant. On this ground also the complaint fails and the complaint is liable to be dismissed.

[9] On perusal of the order-sheet, it is also revealed that the complaint was adjourned on several occasions for hearing. The Complainant is absent in the proceeding since 4/2/2009 till date of hearing i.e. on 2/3/2009. Instead of disposal the complaint for default, we think it fit and proper to dispose the complaint on merits. We have no other option but to decide the complaint without the active participation of the Complainant i.e. on the basis of pleadings of parties, written notes of arguments of the Opposite Party, in the light of the clear mandate of Section 13 (2) ( c ) i.e. “where the Complainant fails to appear on next date of hearing before the District Forum, the District Forum may either dismiss the complaint for default or decide it on merits”. We are therefore inclined to dispose of this complaint on merits. For reasons stated in the earlier paragraphs, we hold that the complaint is liable to be dismissed.

Hence we proceed to pass the following order :-

// ORDER //

The complaint stands dismissed.
No order as to costs.

CONSUMER COMLAINT No. 03 OF 2008

Date of filing: 7th February 2008
Date of Order: 22nd April 2009

Complainant Opposite Party (s)
Smt. Arati Mukherjee, 1. The Senior Divisional Manager,
W/o. Sri Binoy Mukherjee, National Insurance Company Ltd.,
Vill. & P.O. Chanchra, Asansol Divisional Office,
P.S. Purulia (M), “Shyama Building”, Apcar Garden,
District: Purulia G.T.Road (West), P.O. Asansol,
P.S.Asansol,Dist: Burdwan, 713304
2. The Branch Manager,
National Insurance Company Ltd.,
Purulia Branch Office,
G.N.Mukherjee Street, P.O. Purulia,
P.S. Purulia (T), Dist: Purulia.

Present: 1. Sri A.K. Sinha, President-in-Charge
2. Smt. S. Sengupta (Santra), Member.


For the Complainant : Sri P. Roy, Adv.
For the O.P. No. 1&2 : Sri M.H. Ansary, Adv.

Order No. 18, dated 22.4.2009/C.C.No. 03 of 2008

The fact of the case in brief is that the mini truck bearing No. WB 55/2988 of complainant was insured with the O.Ps. vide Policy Certificate No. 150503/31/06/6300002965 which was valid from 29.8.2006 to midnight of 28.8.2007. On 08.7.2007 the above mentioned vehicle of complainant while proceeding towards village Kustaur met an accident and fell down in a nearly ‘KHAL’ filled up with water. There were two persons besides the driver while the accident took place and unfortunately one Bhairab Mahato of Chharra, P.S. Purulia (M) died at the spot due to such accident. On the
written complaint of Tarani Mahato, the other occupant of the vehicle Purulia (M) P.s. case No. 67/07 dated 08.7.2007 u/S. 279/337/338/304A I.P.C. was registered against the driver of the vehicle. During investigation of the case police seized the aforesaid vehicle, its R.C.Book, Permit, Insurance Certificate, Tax Receipt and driving license of driver Gobinda Mukherjee and arranged for technical examination by M.V.I. On the information of complainant to the O.Ps. Surveyor examined the offending vehicle who advised the complainant to repair the vehicle. The complainant spent Rs. 56,890=00 towards value of spare parts, new battery and labour charges and submitted claim along with original cash memos on 02.01.2008 but on 03.01.2008 by a letter of O.P.No.2 complainant was informed that the claim was repudiated only on the ground that vehicle was carrying passengers at the time of accident although the insured vehicle was meant for goods carriage. It was also stated that since there was no permit to carry passengers in the vehicle there was violation of policy conditions. This gives rise to the institution of the case for the reliefs as have been prayed for.

O.P. No.1 (Sr. Div. Manager, National Insurance Co. Ltd, Asansol Division, Shyama Building, Apcar Garden, G.T. Road, Asansol, Dist. Burdwan) contested the case by filing written version and O.P. No. 2 (Branch Manager, NIC Ltd, G.N.Mukherjee Street, P.O. & Dist. Purulia) did not appear and contest the case inspite of receipt of notice. The O.P. No. 1 contended that the insured vehicle of the complainant was goods carrying commercial vehicle and it was insured to carry goods only and not permitted to carry passengers either fair paying or gratuitous. The claim of the complainant was repudiated on the ground that at the time of accident the vehicle was carrying passengers in violation of the term and conditions of the policy. Therefore, prayed for dismissal of the petition of complaint with cost.

From the pleading of both sides the following points are required to be adjudicated for effective disposal of the case.
1)Whether there is any deficiency of service on the part of the O.Ps.?
2)Whether the complainant is entitled to the relief as have been prayed for?

Decision with reasons:

Points No.1 and 2:

Both the points are taken together as they are inter-related.
Shri Binoy Kr. Mukherjee, the husband of the complainant has appeared as PW1 on the strength of power of attorney dt. 05.11.08 who has also filed his affidavit in chief. The PW1 has filed the original RC Book (Exbt. 1), Photocopy of route permit of the vehicle in question (Exbt. 2), Copy of Tax Token of the vehicle (Exbt. 3), Copy of insurance policy issued by O.P for the vehicle valid for the period from 29.8.05 to 20.8.07 (Exbt. 4), Copy of FIR of Purulia (M) P.S. Case No. 67/07 u/S. 279/337/338/304 A I.P.C with the written complainant dt. o8.7.07 (Exbt. 5), Copy of seizure list in respect of the vehicle and document dt. 9.7.07 and 11.7.07 (Exbt. 6 and 6/1), Copy of driving license (Exbt. 7), 5 copies of cash memos (Exbt. 8 objected to) and repudiation letter of O.P. dt. 03.01.08 (Exbt. 9). PW1 admitted that vehicle no. WB 55/2988 was a goods carrying commercial vehicle and insurance policy was also issued for goods carriage only. He denied the suggestion that some passengers were traveling in the said vehicle at the time of accident. He further admitted that the vehicle was loaded with goods which he did not mention in the petition of complaint.

The senior Assistance of O.P. No. 1 has examined himself as OPW 1 who has also filed his affidavit in chief. He has filed survey report dt. 13.11.07, preliminary survey report dt. 31.7.07 and original policy of the vehicle in question. In cross examination he has stated that the only ground of repudiation of the claim of complainant was that the goods vehicle was carrying passengers at the relevant period and no separate investigation was made for verification of the no. of passengers in the vehicle. Also admitted that the sitting capacity in the R.C. Book was shown as 2+1, Original cash memos was receipt by the company but no enquiry was made for verification of the bills and cash memos as the terms and conditions of the policy were violated.

This Forum has given its serious consideration to respective submission of Ld counsel from both sides. True it is the vehicle, in question was goods carriage vehicle and its sitting capacity was 2+1. The question is whether the driver realized fair for carrying deceased Bhairav Mahato and Tarani Mahato, complainant of Purulia (M) P.S. Case No. 67/07. The O.Ps. have taken specific defense, alleging that carrying of passengers in a goods
vehicle attributes to the violation of the policy conditions, is not enough, it should have been specifically stated that on the date of accident the driver was carrying the occupants against payment of fair which was violation of policy conditions.

Further, there is no question of hard and fast rule of responsibility of one side or the other to produced evidence and it is for that party asserts a particulars facts, to prove the same. In the present case, it is true that the O.Ps. have taken stands the goods vehicle in question was not permitted to carry any passenger either for hire or reward and therefore, it is the O.P. Insurance Co. which has to prove the facts. In absence of any prove the insurance Co. cannot refrain from his liability on the ground of beach of terms of policy (United India Insurance Co. Ltd Vs. Sharief Jan AIR 1998 (J&K) 1976.)

In the instant case the status of two occupants and the existence of other occupants as alleged in the complaint of above Tarani Mahato in the insured vehicle at the material point of time are not proved and in such a position the permissible sitting capacity in the vehicle does not any way contravene the conditions of the policy so far as the facts and circumstances came to light.

In view of the above it can safely be concluded that there is deficiency in service on the part of the O.Ps. by repudiating the claim of the complainant without proper investigation and application of mind and therefore liable to indemnify the compensation as per report of the surveyor.

Proper fees have been paid.

Accordingly, it is

O R D E R E D

That Purulia C.C. No. 3 of 2008 is allowed on contest against O.P. No. 1 ( Senior Div. Manager, National Insurance Co. Ltd. Shayama, Apacar Garden, G. T. Road, Asansol, Dist. Burdwan) and O.P. No.2 (Branch Manger, National Insurance Company Ltd, G. N. Mukherjee Street, P.O., P.S, & Dist. Purulia). Both the O.Ps. jointly and severely do pay Rs. 18,289=00 rounded of Rs. 18,300=00 (Rs. Eighteen thousand three hundred) only as compensation within 30 (thirty) days from date failing which the entire amount shall carry interest @ 9% p.a. till its final realization.