consumer case(CC) No. CC/08/266

Smt. Shyama Ghosh
...........Appellant(s)

Vs.

The Divisional Manager, The New India Assurance Co. Ltd. and 2 others
...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

OppositeParty/Respondent(s):

OppositeParty/Respondent(s):

ORDER

In the Court of the

Consumer Disputes Redressal Forum, Unit -I, Kolkata,

8B, Nelie Sengupta Sarani, Kolkata-700087.

CDF/Unit-I/Case No. 266 / 2008

1) Smt. Shyama Ghosh,

N-255, Fathepur 2nd Lane,

Garden Reach, Kolkata-24. ---------- Complainant

---Verses---

1) The Divisional Manager,

The New India Assurance Co. Ltd.,

18/2, Gariahat Road, Kolkata-700024.

2) The Branch Manager,

The New India Assurance Co. Ltd.,

39, D.H. Road, Kolkata-700008.

3) E-Meditek Solutions Ltd.,

8, Camac Street, Kolkata-19. ---------- Opposite Party

Present : Sri S. K. Majumdar, President.

Sri T.K. Bhattachatya, Member.

Order No. 1 1 Dated 2 7 / 1 1 / 2 0 0 9 .

Complainant Smt. Shyama Ghosh (Bhattacharjee), wife of Sri Prabhat Ghosh by filing a petition u/s 12 of the C.P. Act, 1986 on 8.8.08 has prayed for issuing direction upon the o.ps. to pay the cost of medical test amounting to Rs.1620/- along with interest @ 12% p.a. and compensation of Rs.500/- per month and litigation cost of Rs.5000/- payable by the o.p. nos.1 to 3.

Fact of the case in short is that the complainant is an insured person bearing the claim policy no.51063/48/06/20/70001536 including her family members under the mediclaim insurance policy MIP under the New India Assurance Co. Ltd, Thakurpukur Branch for a sum assured of Rs.50,000/- from the date of inception of the policy dt.9.7.01. On 18.11.06 the daughter and the husband of the complainant attended to the Tribedi and Roy Diagnostic Laboratory at 93, Park Street, Kolkata-16 for medical test and on 20.11.06 and 3.1.07 the petitioner also attended the said diagnostic laboratory and they had to spend Rs.1620/- for such medical check up. On 19.2.08 complainant made application to pay the cost of such medical test as per the condition of policy, but even after repeated persuasion they did not pay such cost of medical test and since inception of the policy i.e. 9.7.01 the complainant has been renewing the policy till date without any break, but as the o.ps. have not paid the said sum of Rs.1620/- the complainant has filed this case with the aforesaid prayer.

The o.p. no.3 did not file the w/v. The o.p. nos.1 and 2 had filed their w/v on 9.1.09 wherein they have admitted that the complainant is a mediclaim policy holder under them and they have challenged that the case is bad for non-joinder of necessary parties, that the complainant is not a consumer etc. and they have also claimed that there is no deficiency of service on their part but they have admitted the sum assured amounts to Rs.50,000/- and they have challenged that other than the applicant two other insured persons have not been made parties, so the case is bad for non-joinder of necessary parties.

Their specific case is that in addition to cumulative bonus the insured shall be entitled to reimbursement of cost of medical check up whereas at the end of block of every four consecutive years provided there are no claim reported during that block period and as per their rules, the complainant is entitled to Rs.1000/- for medical check up for two persons each for Rs.500/- only. And in terms of Clause 10 of mediclaim policy the applicant’s husband and daughter are entitled to get reimbursement of Rs.500/- each towards health check up subject to production of their individual cash receipt. The o.ps. sent an account payee cheque bearing no.235432 dt.5.12.08 to the petitioner, but it was returned with the postal remark ‘refused’ by the applicant herself. So there is no deficiency of service on the part of the o.ps. and accordingly, the case is liable to be dismissed.

Decision with reasons :

The main point to be decided is that whether the complainant for medical check up is entitled to get Rs.1620/- or Rs.1000/- as claimed and sent by the o.p. through cheque. The complainant refused to accept it and it is the specific case of o.p. nos.1 and 2 that as per their rule the complainant in every four years block entitled to get Rs.5000/- each for medical check up. We have also perused the affidavit of examination in chief of the complainant wherein she has stated that the complainant has admitted that the o.ps. have admitted that she is an insured person for the mediclaim of herself and her daughter and husband.

The o.p. nos.1 and 2 have also filed their affidavit of examination-in-chief wherein they have also stated that the complainant, her husband and her daughter are entitled to be reimbursed @ Rs.500/- each towards the medical check up subject to production of cash memo. The complainant according to the o.ps. is entitled to get Rs.1000/-only out of the claimed amount of Rs.1620/-. Both of them have submitted their B.N.A. We have also perused the insurance policy and the sum insured for each i.e. the complainant, her husband Prabhat Ghosh and daughter Samita Ghosh is Rs.50,000/- each. Test for total charges as it appears from the receipt dt.18.11.06 amounts Rs.1120/-. Annex-B is the test report. The petitioner has submitted a letter dt.19.2.08 addressed to the Manager, New India Assurance Co. Ltd. o.p. no.1 and o.p. no.3 E-Medicate Solution Ltd. wherein it has been stated that health check up benefit will be accrued after completion of four years continuous claim, that condition has been satisfied. And the amount claimed there is Rs.1120/-. We have also perused the cheque bearing no.235432 dt.5.12.08 sent by the o.p. to the petitioner. But it has been refused by the petitioner. Therefore, considering the facts, circumstances and evidence on record, we are of the opinion that the petitioner is entitled to get the benefit as ordered hereunder.
Hence,
Ordered,

That the petition of compliant is allowed in part on contest against o.p. nos.1 and 2 and ex parte without cost against o.p. no.3. The petitioner is entitled to get Rs.1000/- (Rupees one thousand) only as medical check up reimbursement payable by the o.ps. and to pay litigation cost of Rs.500/- (Rupees five hundred) only. So, the grand total of Rs.1500/- (Rupees one thousand five hundred) only is to be paid by the o.ps. positively within thirty days from the date of communication of this order, failing which it will carry interest @ 10% p.a. till full realization. Fees paid are correct.

Supply certified copy of this order to the parties on payment of prescribed fees.

CONSUMER CASE NO. : 44/S/2009 DATED : 26.11.2009.

BEFPRE PRESIDENT : SMT. ANITA DEBNATH,

Ex-Member of W.B. Higher Judicial Services and

Addl. Dist. & Session Judge,

President, D.C.D.R.F., Siliguri.

MEMBERS : SMT. PRATITI BHATTACHARJEE

&

SRI ASIT RANJAN DAS.

COMPLAINANT : M/S SHREE DURGA WEIGH BRIDGE,

a Partnership Firm, having its place of

business at Uttar Ramdhan, Panitanki,

P.O.- Dulal Jote, P.S.- Khoribari,

Dist.- Darjeeling, represented through and

by its partner, Sri Dilip Chakraborty.

O.Ps. 1. : THE NEW INDIA ASSURANCE CO. LTD.,

a Company registered under the Companies Act,

1956, having its registered office at

87, Mahatma Gandhi Road, Fort,

Mumbai – 400 001, having its Branch office at

Malhotra Towers (2nd Floor), Hill Cart Road,

P.O. & P.S.- Pradhan Nagar, Dist.- Darjeeling

2. : THE BRANCH MANAGER,

The New India Assurance Company Ltd.,

having its Branch office at Malhotra Towers

(2nd Floor), Hill Cart Road,

P.O. & P.S.- Pradhan Nagar, Dist.- Darjeeling.


3. : THE BRANCH MANAGER,

Central Bank of India, Batasi Branch,

P.O.-Batasi, P.S.-Khoribari, Dist.- Darjeeling.
FOR THE COMPLAINANT : Sri Rathin Sarkar, Advocate.

FOR THE OPs : Sri K. L. Lohia, Advocate.
J U D G E M E N T

This is a case for realization of the sum as insured under the policy amounting to Rs.59,498/- and compensation thereof under Section 12 of the Consumer Protection Act, 1986.

Contd….P/2

-:2:-



The case in short is that the complainant is a partnership firm having business of weighing of unloaded and loaded vehicle and also weighing of other machines at their Weigh Bridge for determining the net weight of the articles and vehicles. The complainant firm has installed the plant, machinery and accessories at Panitanki, Uttar Ramdhan, P.O.- Dulal Jote within Dist.- Darjeeling with the financial assistance of the OP No.3. Accordingly, the plant, machinery and accessories are hypothecated with the OP No.3.

The partners of the complainant had/has no knowledge regarding the said type of business of weigh bridge and they have first time engaged themselves to run the said business for earning their livelihood. The complainant firm in order to protect all the properties of the said Weigh Bridge had insured the plant, machineries and accessories with the OP No.1 through the OP No.3 including the entire Micro Tech Battery which is being used at the said Weigh Bridge. With the assistance of the OP No.3 the entire plant was physically surveyed by the Development Officer, Sri Ajit Dey and it was opined that Standard Fire and Special Peril Policy is also to be taken and thereby the total risk of the plant, machineries and accessories and Micro Tech Battery of the complainant firm would be covered under the said Standard Fire and Special Perils Policy.

On the basis of the said advice as made by the Development Officer, the complainant insured the entire plant, machineries accessories and Micro Tech Battery of the said Weigh Bridge with the OP No.1 after making payment of a sum of Rs.3,181/-. The policy certificate bearing No.512301/11/07/11/00001279 and the risk is covered up to Rs.15,00,000/- under the said policy including the fire, lightning, explosion, inclusion, Air craft damage.

All on a sudden on 04.03.08 two numbers of load cell of the said insured Micro Tech Battery were damaged due to lightning in the area of Uttar Ramdhan, Panitanki. The said matter was duly informed to the Insurance Company on 05.03.08 and one Surveyor was engaged to conduct the survey for ascertaining the nature and extent of the damage caused by the said lightning on 04.03.08. The Engineer and/or Technician of the manufacturing Company also tested and checked the said two load cells thoroughly being Nos.5165103 and 5163973 and after inspection it was disclosed that such damage was caused due to the lightning and issued a report to the complainant on 04.03.08.

The said policy is duly covered by the material damage caused by lightning. Subsequently, OP No.2 on 25.06.08 through a letter vide his reference No.512301/Misc. CLM/UKB had rejected the valid genuine and legal claim of the complainant firm treating the same as ‘No Claim’. The said policy certificate clearly speaks about the coverage of the damage caused by lightning under the Standard, Fire and Special Perils

Contd….P/3

-:3:-



Policy. After receiving the said intimation the complainant repeatedly requested by several letters to reconsider their claim but to no effect for which the complainant had to issue legal notice through their Ld. Advocate Goutam Roy but no reply is received.

The partners of the said firm run the said business for the purpose of their earning and livelihood and as the said cells of the battery were damaged, the complainant had to purchase new set of two numbers of load cells from the manufacturing Company i.e. Tulshi Trading Company, Kolkata under proper tax invoice, challan after making of a sum of Rs.59,498/- together with all other taxes.

The OP No.2 is bound to release the said claim as made by the complainant on the basis of the said Insurance Policy. The complainant regularly paid the premium even then such claim was rejected. Hence, this case supported by affidavit.

OP No.1 & 2 filed a joint W/V on verification which was subsequently affirmed by way of affidavit denying each and every allegation as made therein with a specific defence that the case is not maintainable and the complainant is not a consumer under the Act. This Forum has no jurisdiction to entertain the instant case as the alleged facts are purely civil in nature and hits by spirit of Consumer dispute and if the instant case be entertained there would be loss of State revenue loss to be paid by court fees. It is specific defence that complainant has no insurable interest to claim indemnification from the OPs and as such the case is liable to be dismissed with cost.

Upon consideration of the pleadings of the respective parties the following points are to be determined for solve out the controversy involved in the instant case :-

1) Is the case maintainable in law ?

2) Has the Forum jurisdiction to try ?

3) Is there any deficiency in service or Unfair Trade Practice on the part of the OPs?

4) Is the complainant entitled to get decree as prayed for ?

5) To what other relief/reliefs as prayed for ?



Decision with reason

All these points are taken up together for the sake of convenience as they are interlinked.

The Ld. Advocate on behalf of the attacked the instant case on different folds :-

1) That the complainant is not a consumer under the C.P. Act, 1986.

2) The machine in question is used for commercial purpose by appointment of several hands and there is no Iota of evidence that the complainant or the other partner engaged themselves for running the said machine for their livelihood.

Contd….P/4

-:4:-



It has been further urged that from the declaration as made by the complainant

and his other partner that they have already run business in other capacity for

which there is self declaration as businessman.

3) That no certificate has been produced by the complainant to show that it has duly been intimated to IMD i.e. Indian Metrology Department who is the competent authority to say if storm, thunder, lightning took place on the alleged date of occurrence causing fire to damage two load cells out of four whereas the complainant straightway lodged claim before the Insurance Authority.

4) The policy in question although covered the entire plant, machineries, accessories of the entire plant including the battery set but the risk as claimed is not covered as no fire, lightning ever took place inside the weigh bridge causing the alleged damage as claimed for and Expert’s report is necessary.



So the complainant is not a consumer and run the business for commercial purpose and this case is not maintainable in the instant case.

In this regard reliance has been placed upon decision reported in CPJ 2002 Vol.-III V.C. 237; 1992 CPJ 404; 1992 CPJ 848 (Maharashtra); 2000 CPJ 261 (A.P.) and several other decisions as mentioned in the synopsis of argument as made by the OP whereas the Ld. Advocate on behalf of the complainant urged that the OP is to deny each and every case specifically in the W/V. Evasive denial is no denial at all.

It has been further urged no material has been placed on the part of the OP to show that the said business is running by the complainant for commercial purpose. Without proving by cogent, oral and documentary evidence such defence bears no importance. Two batteries were damaged due to lightning in the area of Uttar Ramdhan and in terms of the contract under the Policy damage to the barratry are also included caused by lightning. The OP No.2 engaged one Surveyor to conduct the survey for ascertaining the nature and incident of the damage caused by the said lightning dated 04.03.08. Standard Fire and Special Peril Policy is duly covered the material damage caused by lightning. The partners of the complainant run their business for the earning of their bread and butter and as the load cells of the said batteries were damaged due to lightning and when the said damage caused by lightning covers under the policy the complainant is entitled to get a sum of Rs.59,498/- due to purchase of new two load cells

for running the business smoothly. As the OP denied the claim as lodged by the complainant in the manner which amounts to deficiency and service. In support of his



Contd….P/5

-:5:-



contention several decisions have been relied reported in CPJ 2006 Vol.-I Page-6 (Supreme Court); CPJ 2007 Vol.-II Page-5 (Supreme Court); AIR 1997 Page-49 (Supreme Court); CPJ 2004 Vol.-IV 696 (M.P.); CPJ 2006 Vol.-IV Page-213 (N.C.).

On scrutiny of the record it reveals that in the instant case the complainant has examined through one of the partner Dilip Chakraborty who has filed the instant case and narrated the incident in the line under the case of the complainant. Complainant also examined one Prabir Sardar claiming to be the trained technician of Tulsi Trading Company. According to him on 04.03.08 he went to Weigh bridge of the complainant firm for checking and deciding the entire machineries, accessories and batteries of them and on checking it was found two numbers of load cells being Sl. No.5165103 and 5163973 were fully damaged due to lightning. If any damage be caused due to lightning it will not covered under the warranty period. Both the witnesses were crosse examined by the OP by way of questionnaire and made replies thereon supported by affidavit.

In 2007 Vol.-II CPJ 5 (Supreme Court) in the case of National Insurance Company Ltd. Vs Ishar Das Madan Lal it has been held wherever such clause contained in policy, insurer to show case falls within purview thereof. In case of ambiguity, contract of insurance shall be construed in favour of insured to conclude as to whether exclusion clause attracted or not, loss of damage must be occasioned by customer in respect of property entrusted to him.

AIR 1997 Supreme Court, 408, the United India Insurance Company Ltd. Vs M/S M.K.J. Corporation wherein their Lordship held Insurance coverage for riots and strikes and malicious damage and spoilage and damage to leather in process was caused due to strike organized by workmen of the insured Insurance Company liable to pay as it insured amount for spoilage of leather caused due to strike organized by the workmen as it had undertaken liability for riot or strike damage due to riot or strike.

In 2004 Vol.-IV CPJ 696 it has been held specific denial is necessary allegation of fact in plaint if no denied specifically deemed to have been admitted.

In 2006 IV CPJ 213 (N.C.) it has been held that as per Section 13 if matter is contested in W/V. then parties have to prove their case by evidence. OPs neither filed any affidavit nor cross-examined the deponent. Allegation of complainant remains uncontroverted. In absence of any counter affidavit, case of complainant stands proved.

In 2006 Vol.-IV CPJ 21 it has been alleged by the Hon’ble State Commission, Chattishgarh) complaint on behalf of the firm signed and verified by only one of two partners maintainable since provisions of CPC not applicable to proceeding before Consumer Fora.

Contd….P/6

-:6:-



The complainant has filed several documents in support of their contention. The Xerox copy of the policy (annexure-i) page-1 goes to show that weigh bridge including machinery and infrastructure Micro tech with Excide capacity 60 MT battery is covered for the period 14.01.08 to 13.01.09. It has specifically mentioned therein earth quake (fire and shock). Annexure-ii the Policy Standard Fire and Special Perils Policy shows lightning is covered under the said policy.

The letter dated 25.06.08 issued by the New India Assurance Company Ltd. (Annexure-iv) goes to show that the claim of the complainant has been repudiated on the plea that the damage does not fall within the purview and cover of the fire policy. Annexure-v goes to show that the complainant on behalf of the firm wrote a letter for consideration their claim. Page-8 it reveals Branch manager, Central Bank of India requested the New India Assurance Company Ltd. by their letter dated 21.06.08 to settle the matter under the claim made by the complainant at their earliest. It further reveals the complainant by several letters requested the OP for reconsideration of the claim as made by him. Annexure-Viii goes to show that the complainant purchased two batteries from Tulsi Trading Company. Letter of Authority goes to show that one of the partners Smt. Sangha Mitra Mazumder authorized the other partner Dilip Chakraborty to file a case before the Consumer Fora.

In 2002 CPJ Vol.-III N.C. 237 it has been held Indian Metrology Department is the only authority to say if storm, thunder, lightning incident caused damaged or not and no other person is competent. In this regard it may be mentioned here that the OP just at the time of argument placed the Surveyor’s report made by Sandeep Kumar Patra from which it appears that the Surveyor visited to the place of occurrence on 04.03.08. It reflects in item No.9 under the head of Situation at Risk there is specific mention that license was issued by the Directorate of Legal Metrology. From the said report it further reveals that during inspection the said Surveyor met with the Panchayet Member, Mr. Ghanashyam Karoa of Raniganj Panisali Gram Panchayet and disclosed the matter from whom he came to know that there was severe lightning with thunder accompanied by torrential rain lashed ever the area and surrounding areas of North Bengal and he has given a certificate to that effect. From the Surveyor’s report there is specific mention of visiting to the spot and to Central Bank of India, Batasi Branch and disclosed about the incident and they also confirmed the incident as genuine. Ultimately, loss was assessed on Rs.49,498/-. It has specifically mentioned under the caption occurrence particulars to that effect that due to damage by the lightning it causes a constructive electrical breakdown. From the Surveyor’s report it is evident that there was storm and thunder lightning causing the damage of two load cells of the complainant firm. So, on careful

Contd….P/7

-:7:-



consideration of the decision and the objection as raised by the Ld. Advocate on behalf of the OP this Forum is of the view that non-production of proper certificate from the Metrology Department though the complainant firm registered before the Metrology Department and obtained certificate there from is not fatal when the Panchayet Member categorically certified about the incident as contended by the complainant about such damage caused by lightning contrary of which was not proved buy the Opposite Parties.

Now we have to consider the basic objection as raised by the OP that the complainant run the business for commercial purpose and thereby the complainant can not be considered as Consumer as provided under Section 2 (1) (d) of the C.P. Act, 1986.

Consumer as provided under Section 2(1)(d) means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.

In explanation for the purpose of this clause commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.

Here in the instant case the complainant’s specific case coupled with the evidence is that partners of the complainant firm run their business for earning their bread and butter. Thereby when such business ran for their livelihood it does not consider that running the same as commercial purpose. The section itself provides in clause I that “but does not include a person who obtains such goods for resale or for any commercial purpose”. In this regard much argument has been advanced by the Ld. Advocate on behalf of the OP referring with the partnership deed wherein it has been described the partners as businessman and receiving with profits and remuneration. When the partners start with a business by virtue of deed of partnership obviously they will be considered as businessman whether both the partners have any other business and did not engage themselves for running the said business no scrap of paper has been filed on behalf of the OP to substantiate that such business is running for commercial purpose. Mere defence is no defence at all. It requires to be proved by cogent, oral and documentary evidence. When the complainant sole case has not been denied specifically by producing any convincing proof that the said business is running for commercial purpose and only describing the partners as businessman it does not suggest that the partners of the firm i.e. complainant is running the said business for commercial purpose.

Contd….P/8

-:8:-



Under these facts and circumstances, we are not in agreement with the view as expressed by the Ld. Advocate on behalf of the OP that the complainant runs the said business for commercial purpose and hold so.

From the deed of partnership it clearly speak that Dilip Chakraborty and Smt. Sangha Mitra Mazumder are the partners to the said business and one of the partner Smt. Sangh Mitra mazumder clearly empowered the other partner to lodge or to file any case before the Consumer Fora though the said authorization letter does not bear any date or official seal but it does not mean that it has not been authorized by the said partner to lodge the instant case by Dilip Chakraborty when contrary has not been proved by cogent evidence. Therefore, we are also not in agreement with the view that the said partner Smt. Sangh Mitra Mazumder does not authorize Dilip Chakraborty to institute the instant case before the Consumer Fora. Therefore the point as raised by the Ld. Advocate on behalf of the OP in this regard is not entertainable.

Now only question rests whether there is exclusion clause in the Insurance Policy. The complainant has filed Xerox copy of the said printed form under the said policy. But it is curious enough that entire printed form has not been furnished by the complainant to disprove the contention of the OP to show that due to exclusion clause with regard to damage by lightning the claim of the complainant is not entertainable. It is also not believed that the complainant is equipped with the 1st page of the printed form and they are not supplied by the entire form.

The OP has furnished the entire printed form of the similar nature as filed by the complainant. At page – 4 of the printed form of the said policy in clause No.-Vii there is a specific terms under the caption of (A) General Exclusion which starts from this policy does not cover (not applicable to policies covering dwelling). At clause Vii – loss destruction or damage by any electrical machine, apparatus, fixture, or fitting arising from or occasioned by over-running, excessive pressure, short circuiting, arcing, self heating or leakage of electricity from whatever cause (lightning included) provided that this exclusion shall apply only to the particular electrical machine, apparatus, fixture or fittings so affected and not to other machines, apparatus, fixtures or fittings which may be destroyed or damaged by fire so set up.

Now the question is whether this exclusion will come in to play in the instant case under the caption of General Exclusion. Admittedly, the complainant has a valid policy and the incident took place within the valid coverage of the said policy. From the document as placed by the complainant together with the Surveyor’s report as placed by the OP it is evident that the incident of lightning took place on the date of occurrence causing damage to the two load cells of the complainant firm. But in this regard it is

Contd….P/9

-:9:-



apparent to mention here that the complainant despite knowing the terms and conditions under the policy has not come before the Forum with clean hand and in this regard they have filed the first page only in order to get the benefit under the said policy with intention to suppress the exclusion clause.

We have already reflected above that the first page of the said printed form and the entire printed form as furnished by the OP are similar in nature. It is hardly believable that the complainant was served only the first page of the said printed form and it was within their knowledge having coverage of policy causing damage by the lightning in terms of the first page of the said printed form (Insurance Policy). Therefore, this circumstances, leads the Forum believe that they have suppressed the material fact of not having coverage if any damage caused by lightning.

Under these facts and circumstances, this Forum is of the view that there is exclusion clause obviously it would come into play. Therefore, when the complainant has not come before the Forum with clean hand they will not get relief on equitable justice.

On careful consideration of the decision as relied by the complainant reported in CPJ 2007 Vol.-II Page 5 (Supreme Court) that the AIR 1997 Page 408 (Supreme Court) we are of the view that facts of the cases under reference and the facts of the case in hand are quite different and is not matching with each other and the principles are also the different. Therefore, all those decisions are not applicable in the instant case.

Considering the facts and circumstances of the case this Forum is of the view that the complainant has not come before the Forum with clean hand suppressing the material factum of exclusion clause and when there is exclusion clause that will come into play and thereby the case of the complainant is not entertainable.

In the result, the issues are decided against the complainant and as such the case fails.

Hence, it is,

O R D E R E D

that the Consumer Case No.44/S/2009 is dismissed on contest but without cost.

Let Xerox copies of this Judgement and Order be supplied to the parties free of cost.

Complaint Case No.:1318 of 2008

Date of Inst: 07.11.2008

Date of Decision:26.11.2009

Sh.Kanwaljeet Singh son of Sh.Tirlok Singh r/o H.No.473, Sector 32-A, Chandigarh presently residing at H.No.357, Top Floor, Phase-II, SAS Nagar, Mohali.

---Complainant
V E R S U S
1. The Regional Manager, New India Assurance Co. Ltd., Regional Office, SCO 36-37, Sector 17, Chandigarh.
2. The Branch Manager, New India Assurance Co. Ltd., G.T. Road (3610003), Phagwara, Distt. Kapurthala.


---Opposite Parties

QUORUM SHRI LAKSHMAN SHARMA PRESIDENT

SMT.URVASHI AGNIHOTRI MEMBER

SHRI ASHOK RAJ BHANDARI MEMBER



PRESENT: Sh.B.B.Bagga, Adv. for complainant

None for OPs.

---

PER LAKSHMAN SHARMA, PRESIDENT

Sh.Kanwaljeet Singh has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OPs be directed to pay Rs.2.20 lacs being insured declared value of the car and Rs.20000/-on account of cost incurred in pursuing the matter with OPs. The complainant has further prayed that OPs be directed to pay a sum of Rs.50000/- as damages for mental agony, hardship and losses besides costs of litigation etc.

2. In brief, the case of the complainant is that he got insured his car bearing registration No.PB-65-D-0714 with OPs vide insurance policy No.361003/31/07/01/00003721. The insurance policy was valid from 11.08.2007 to 11.08.2008. The said vehicle met with an accident on 05.04.2008 at Sirhind. The complainant reported the matter to the police. On the basis of the information given by him an entry was made in DDR at Sr.No.14 on 08.04.2008 in Police Station Sirhind. According to the complainant, he lodged the claim along with the relevant documents with OPs who appointed a surveyor. He visited the spot and assessed the loss. However, the claim was not paid for a sufficient long time. The complainant visited the office of OPs a number of times but to no effect. Ultimately, the complainant served a legal notice dated 02.09.09 upon OPs. Thereafter, OPs repudiated the claim vide letter dated 16.10.08 on the ground that the complainant had no insurable interest in the vehicle. According to the complainant, the repudiation of his claim is unjustified and illegal and the same amounts to deficiency in service or unfair trade practice on the part of OPs. In these circumstances, the present complaint was filed seeking the reliefs mentioned above.

3. In the reply filed by OPs, it is admitted that the vehicle in question was insured for a sum of Rs.2,20,000/- for the period mentioned in the insurance policy. It has been pleaded that on receipt of the claim M/s Esquire Technocrats was appointed as Surveyor and Loss Assessor to assess the loss. AS per its preliminary report dated 14.05.2008 (annexure R-4), the damages caused to the rear portion of the vehicle did not tally with the cause of accident stated in the claim form as well as the facts mentioned in the DDR. Subsequently, M/s Royal Associates was appointed as Investigator to investigate the claim. As per the investigation report, the eye witnesses confirmed that the said car met with an accident in the first week of Feb.2008 and at that time the vehicle was being driven by Sh.Raj Kumar Chaudhary who suffered injuries. Sh.Raj Kumar Chaudahry was admitted in the hospital on 03.02.08 and was discharged on 04.02.08. Thus, according to OP, as per the investigation report submitted by the said agency, the car did not meet with an accident on 05.04.08 as mentioned in the complaint. Rather, it met with an accident on 03.02.08. So the car was not damaged in the accident alleged to have been occurred on 05.04.08. It has further been pleaded that in the month of February, 2008 Sh.Paramjit Kaur was the registered owner of the vehicle in question. The registration certificate was transferred in the name of the complainant on 02.04.08. Thus, according to OPs, the complainant had no insurable interest in the vehicle in question on the day when it met with accident i.e. 03.02.08. Therefore, the claim has been rightly repudiated and there is no deficiency in service on its part. It has further been pleaded that in case the Forum comes to the conclusion that the complainant is entitled to any compensation in that eventuality OPs are not liable to pay more than the amount of Rs.1,09,500/- i.e. the loss assessed by the surveyor in its report dated 26.08.2008. In these circumstances, according to OPs, there is no deficiency in service on its part and the complaint deserves dismissal.

4. We have heard Sh.B.B.Bagga, Adv. for complainant and Sh.Rajneesh Malhotra, Advocate for OPs and have gone through the entire record including documents, Annexures, affidavits etc.

5. The case of the complainant is that the car in question met with an accident on 05.04.08 near Sirhind and he was driving the said car on the fateful day. The complainant has also deposed in his affidavit that he himself reported the matter to the police and on the basis of his statement, entry was made in the DDR at Sr. No.4 dated 08.04.09 (Annexure C-3) at Police Station Sirhind. The contents of the said document corroborate the depositions made by the complainant regarding manner and date of accident in his affidavit. Otherwise also, admittedly the complainant became the registered owner of the car in question on 02.04.08. As per law, the vehicle is physically checked by Registering Authority at the time of its registration. The vehicle is registered only after the same is found to be roadworthy. Had the car in question been not roadworthy, the registration could not have been transferred in the name of the complainant on 02.04.08. Thus on 02.04.08, the car was roadworthy and was not damaged to the extent mentioned in the report of surveyor. The car which met with an accident on 03.02.08 could also meet with an accident on 05.04.08 if it was roadworthy. There is no material on record to show that on 05.04.08, the car was not roadworthy and it could not have met with an accident. On the other hand, the complainant has deposed specifically that the accident took place on 05.04.08. His deposition is corroborated by the copy of DDR (Annexure C-3). So from the material on record it is proved that the car in question met with accident on 05.04.08.

Admittedly on 05.04.08, the complainant was the registered owner of the car in question. So the complainant had insurable interest in the vehicle in question. Therefore, the repudiation of the claim by OPs on the ground that the complainant had no insurable interest in the car is unjustified and is not in accordance with law. It amounts to deficiency in service.

Annexure R-9 is the report of surveyor dated 26.08.2009 in which the net loss to the car was assessed to the tune of Rs.1,09,500/-. So the complainant is entitled to the amount as assessed by the surveyor. In addition to this, the complainant is also entitled to a sum of Rs.30,000/- as compensation for mental agony and harassment. He is also entitled to a sum of Rs.5000/- as litigation expenses.

6. In view of the above findings, this complaint is allowed with a direction to the OPs to pay to the complainant the amount of Rs.1,09,500/- as assessed by the surveyor along with the amount of Rs.30000/- as compensation for mental agony and harassment. The OPs are also directed to pay to the complainant a sum of Rs.5000/- as costs of litigation.

7. This order be complied with by OPs within one month from the date of receipt of its certified copy, failing which OPs shall be liable to pay the aforesaid amount of Rs.1,39,500/- (Insured Declared Value + compensation) to the complainant along with penal interest @ 18% p.a. from the date of order till its realization besides costs of litigation.

8. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.
Announced

Complaint Case No : 813 of 2009
Date of Institution : 05.06.2009
Date of Decision : 18.11.2009
M/s. T.L. Verma & Company, Head Office 29, Timber Market, Sector 26, U.T., Chandigarh through its Managing Director T.L. Verma.

….…Complainant
V E R S U S
M/s New India Assurance Company Limited, through its Branch Manager, SCO No.1070-71, Sector 22-B, UT., Chandigarh.

..…Opposite Party

CORAM: SH.JAGROOP SINGH MAHAL PRESIDENT

SH.SIDDHESHWAR SHARMA MEMBER

DR.(MRS) MADHU BEHL MEMBER



Argued by: Sh.Siddharth Sanwaria, Adv. for complainant.

Sh.Rajneesh Malhotra, Adv. for OP



PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

According to the complainant, they dispatched a consignment of toughened glass & Glassware from its factory at Baddi to M/s Shivam Glass Traders Gali No.15 near Railway Phatak Samaypur at Delhi on 3.5.2007 with total invoice value of Rs.3,22,052/- vide Ann.C-2 to C-4, which was duly insured with OP Company under Marine Cargo (Open Policy) (Ann.C-1), but unfortunately the carrier transporting the said insured consignment met with an accident on GT Road at Ganour, District Sonipat (Haryana), as a result the consignment was destroyed. A DDR (Ann.C-5) was lodged with concerned police station. The OP Company on giving intimation about the said accident appointed a Surveyor, who visited the spot and inspected the truck & other material. It is averred that the Surveyor has given a wrong report stating that the sales tax receipt (Ann.C-4) was not available with the complainant nor he verified it from the Sales Tax Department, H.P.. It is also averred that the OP vide Ann.C-8, dated 24.9.2007 (wrongly mentioned as 29.4.2007) repudiated the claim of the complainant based on the survey & investigation report on a flimsy ground that the consignment was not covered under the policy and the same was dispatched from Chandigarh and not from Baddi, whereas the manufacturing unit of the complainant company was situated at Baddi and the sales tax receipt Ann.C-4 was also issued from Baddi. The complainant made several representation to OP Company to settle his claim but in vain. Hence, this complaint has been filed alleging the above repudiation as illegal, arbitrary and deficiency in service on the part of OP Company due to which the complainant company has to suffer a lot.

2] OP filed reply and took objection to the effect that since no cause of action has accrued to the complainant within the territorial jurisdiction of Chandigarh, so the present compliant is not maintainable before this Forum at Chandigarh and that the claim is highly time barred & belated, hence the complaint deserves dismissal. On merits, the factual matrix with regard to issuance of Policy in question, occurrence of accident and appointment of Surveyor & Investigator and repudiation of claim are admitted. However, it is stated that the intimation regarding the accident was received on 4.5.2007 at Panipat Divisional Office and Surveyor did the spot survey on the same day and observed that the truck owner submitted two GRs, the marine declaration used was of Sr.No.99793 whereas the declaration book issued was bearing No.9751 to 9800. The Surveyor while assessing the net loss to the tune of Rs.3,07,738/- vide his report dated 26.6.2007 (Ann.R-2) recommended to look into the facts regarding the GR submitted by the owner of the truck and the Marine Declaration submitted by the complainant and as such M/s Citi Surveyors Pvt. Ltd. were appointed for checking the necessary documents, who submitted the report on 22.8.2007 (Ann.R-5) and recommended that the claim of the complainant be repudiated since the goods were dispatched from Chandigarh and not from Baddi and the policy did not cover any goods dispatched from Chandigarh office of the complainant and accordingly, the claim of the complainant was rightly repudiated vide Ann.R-6, dated 31.3.2008. Rest of the allegations have been denied with a prayer to dismiss the complaint.

3] Parties led evidence in support of their contentions.

4] We have heard the ld.Counsel for the parties and have perused the record.

5] The dispute between the parties is as to whether the goods in the truck which got damaged were loaded from Baddi unit of the Complainant or from Chandigarh. Needless to mention that the Insurance Policy (Annexure C-1) records that only those goods/glass which is loaded from Baddi unit to anywhere in India in wooden boats is insured and their contention is that in the present case, the glass was loaded from Chandigarh and, therefore, it is not insured in view of the terms and conditions mentioned in Annexure C-1. On the other hand, the contention of the Complainant is that in fact, the goods/glass was loaded from their Baddi unit in Truck No. HR-68 5298, but after crossing the Excise and Taxation Department Barrier of the Himachal Pradesh, when it reached near Ramgarh, the truck developed some mechanical problem, upon which the goods were re-loaded in Truck No. HR-38E-8451, which met with an accident resulting in the damage to the glass loaded therein. Annexure C-2 is the invoice No.454, dated 3.5.2007 showing that the goods were being sent by the OP to Shivam Glass Trader, Gali No. 15, Near Railway Phatak, Samaypur, Badli, Delhi. The value of the glass was Rs.3,22,052/-. Annexure C-3 is the builty showing that the goods were loaded in the truck from Baddi (H.P.) and were being transported to Delhi. The consignee was the same Shivam Glass Trader, Gali No. 15, Near Railway Phatak, Samaypur, Badli, Delhi. There is registration no. of two trucks which are mentioned in the Col. meant for truck nos., it is HR-68 5298 and HR-38E-8451. It is mentioned as a note on Annexure C-3 that the material was shifted from Truck No. HR-68 5298 to Truck No. HR-38E-8451 at Ramgarh as Truck No. HR-68 5298 got some technical problem. In support of his contention and to rebut the allegation of the OPs, the Complainant also produced Annexure C-4, which is the document issued by the Barrier/Check Post Barotiwala of the Excise and Taxation Department, Himachal Pradesh. It shows that the Truck No. HR-68 5298 crossed the Check Post/Barrier at 2:54:46 PM on 4/5/2007 with the goods worth Rs.3,22,052/-. Under builty no.454, dated 3.5.2007 and the Consignor was T.L. Verma & Company, Basanti Bagh Baddi and the Consignee was Shivam Traders, Delhi. This document, therefore, fully proves that the goods were being transported in the said truck from Baddi to Delhi. The OPs have not produced any such builty to show if any goods/glass was loaded by the Complainant from their Chandigarh office. In fact, the glass in Truck No. HR-38E-8451 was shifted from Truck No. HR-68 5298, which was coming from Baddi (HP).

6] The OP had appointed a Surveyor and an Investigator who claims to have contacted the Excise & Taxation Barrier/Check Post at Barotiwala (H.P). His contention is that the said Barrier has no record about the movement of Truck No. HR-68 5298 passing from the side of Baddi to Haryana. This evidence, however, is hearsay and cannot be accepted as correct. The primary evidence is that of the Check Post employees or a certificate from them to this effect, but the same has not been procured/produced by the OPs for the reasons best known to them. On the other hand, Annexure C-4 is the evidence to suggest that the said Truck had passed through the said Check Post/Barrier and, therefore, the OPs have told that as they could not get any such evidence from the said Check Post to rebut Annexure C-4 that is why they did not produce any such evidence. The Complainant has submitted his affidavit in this respect. Annexure C-6 is the Survey Report, in which also it is mentioned that Truck No. HR-38E-8451 was on way from Baddi (H.P.) via Chandigarh to Delhi side. It is further mentioned in the said report (Annexure C-6) that the insured had told the OP that the goods were first loaded in Truck No. HR-68 5298 at Baddi (H.P) and the said truck got some technical/mechanical problem at Chandigarh, hence, the goods were loaded in another Truck No. HR-38E-8451 at Chandigarh. (Village Ramgarh is near Chandigarh). This fact was even mentioned in Para No. 3 of the notice dated 8.5.2008 sent by the Complainant, in which the issuance of a certificate by the Excise and Taxation Department was also mentioned. The Complainant therefore told the facts to OPs and his stand had been the same from the very beginning. It cannot be said if this story was developed by the Complainant subsequently. It, therefore, cannot be said if the goods damaged in the accident were not loaded from the Baddi unit of the Complainant.

7] The learned counsel for the Complainant has argued that it is generally the tendency of the insurance companies to find faults with the claim applications and to deny the genuine claims. In the present case, the claim is being denied only due to the reason that the truck in which the goods were loaded from Baddi unit and which passed through the Excise and Taxation Department Check-Post/Barrier, developed some technical/mechanical defect, due to which the goods were re-loaded in another truck, which met with an accident. There was no hanky-panky on the part of the Complainant and therefore, this fact could not be exploited by the OPs to deny the genuine claim of compensation moved by the Complainant.

8] As per Annexure C-2, the value of the goods was Rs.3,17,902.80Ps. The Surveyor vide his report Annexure C-6, however, assessed the claim for Rs.3,07,738/-, considering the value of the scrap at Rs.10,164/-. We are, therefore, of the opinion that the Complainant is entitled to Rs.3,07,738/- as compensation.

9] In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly, allowed. The OPs are directed to pay to the Complainant Rs.3,07,738/- alongwith litigation costs of Rs.5,000/- within 30 days from the date of receipt of the copy of the order, failing which they would be liable to pay the entire amount, along with interest @9% per annum with effect from 26.7.2007 (one month after the marine survey report – Annexure C-6 of the Surveyor), till the payment is actually made to the Complainant.

Certified copies of this order be sent to the parties free of charge. The file be consigned.

Complaint Case No : 786 of 2009

Date of Institution: 02.06.2009

Date of Decision : 10.11.2009


Jasbir Singh Bajwa son of Sh.Achhar Singh, R/o H.No.2848, Sector 38-C, Chandigarh.

….…Complainant

V E R S U S

The New India Assurance Company Ltd., Division Office :SCO No.58, Sector 26-C, U.T., Chandigarh.

..…Opposite Party
CORAM: SH.JAGROOP SINGH MAHAL PRESIDENT

SH.SIDDHESHWAR SHARMA MEMBER

DR.(MRS) MADHU BEHL MEMBER

Argued by:Sh.B.L.Sharma, Adv. for complainant.

Sh.Navin Kapur, Adv. for OP

PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

Briefly put, the vehicle of the complainant Regd. No.CH-03-R-9917 –Toyota Qualis, duly insured with OP Insurance Company for Rs.3,75,000/- vide Ann.C-1 w.e.f 17.04.2006 to 16.04.2007, was stolen on 7.4.2007. The Police was informed about the theft, which registered FIR No.85, dated 7.4.2007 U/s 379 IPC (Ann.C-2). The vehicle was not traced out and ultimately Untraced Report was issued vide Ann.C-3. It is stated that the OP Insurance Company passed the claim for Rs.2,80,250/- only vide letter dated 12.3.2009 (Ann.C-4) whereas the value of the said vehicle was assessed to be Rs.3,75,000/-. It is also stated that firstly the OP has wrongly passed the claim of Rs.2,80,250/- against the value of the vehicle of Rs.3,75,000/- and secondly, they even did not pay the amount of Rs.2,80,250/- which was passed by them vide Ann.C-4. Therefore, the present complaint has been filed alleging the above acts of OP Insurance Company as gross deficiency in service, due to which the complainant has to suffer mental tension, physical harassment and financial loss.

2] OP filed reply and admitted that factual matrix of the case. It is submitted that the vehicle in question was insured with answering OP vide Ann.R-4 for a sum of Rs.3.75 lacs but as per the RC Verification Report dated 5.7.2008 of Sh. Harinder Bir Singh, an Independent Investigator, the RC/Fitness of the vehicle was valid from 7.2.2005 to 6.2.2007 (Ann.R-5) whereas the theft took place on 7.4.2007 i.e. after expiry of validity of RC and the complainant vide Ann.R-6 has admitted that he had not got renewed the RC after 6.2.2007 and as such the said RC was not valid at the time of theft of the vehicle. Therefore, the answering OP by treating the claim as Non-standard claim admitted its liability to be of Rs.2,80,250/- (75% of Rs.3,75,000/-) less excess clause of Rs.1000/-). Rest of the allegations have been denied and it is prayed that the complaint be dismissed.

3] Parties has led evidence in support of their contentions.

4] We have heard the ld. Counsel for the parties and have also perused the record, along with the written arguments advanced by the learned counsel for the Complainant.

5] The vehicle was insured for Rs.3.75 lacs for the period 17.4.2006 to 16.4.2007. However, a few days before the insurance was to expire i.e. on 7.4.2007, the vehicle was stolen and has not been traced out. The claim amount has not been paid so far on the ground that it was passed for Rs.2,80,250/-, but certain formalities had not been completed by the Complainant, as the RC was not transferred in the name of the OP, Subrogation and Indemnity Bond, as well as latest NCRB Report have not been furnished. It may be mentioned that there is no agreement between the parties, under which the vehicle is to be got transferred by the Complainant in favour of the OP. The only requirement of law under Section 50 of the Motor Vehicles Act read with Rule 55 of the Central Motor Vehicle Rules, 1989, is that the Complainant has to submit to the OP the RC along with the requisite forms/ affidavits duly filled in and it is the duty of the OP to submit the RC before the Registering Authority and to get it transferred in its own favour. The OP is, therefore, adopting an unfair trade practice in this respect, for which it requires to be penalized.

6] As regards the Subrogation and Indemnity Bond, the contention of the Complainant is that the full amount of insurance due to him is not being paid and it is only 75% of the insured value of the vehicle, which is offered to him and the same is deficient, to which the Complainant has not agreed. In this manner, the delay in submitting the subrogation and indemnity bond is due to the fault of the OP which is not offering the full amount of compensation to the Complainant. The question of paying 75% of the insured value on “non-standard basis” has not been accepted by the Complainant. Since the vehicle was insured for Rs.3.75 lacs, on the date of the theft it had run almost one year and, therefore, 10% of the IDV i.e. Rs.37,500/- should be deducted from the IDV and the remaining amount of Rs.3,37,500/- is payable to the Complainant. When the amount of Rs.3,37,500/- is offered, the Complainant would be ready to submit the subrogation and indemnity bond.

7] The learned counsel for the OP has argued that the RC of the vehicle had not been got renewed, the Complainant, therefore, committed breach of the provisions of the Motor Vehicles Act and the Rules and, therefore, they are only liable to pay 75% of the claim. It may be mentioned that breach of policy condition is not germane in the case of theft of vehicle as held by the Hon’ble Supreme Court in case National Insurance Company Ltd. Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC). The Hon’ble Supreme Court took into consideration certain authorities of National Commission as mentioned in Para No. 7 and 10 of the judgment and approved the stand taken by the National Commission in this respect. Para No. 15 of the judgment, however, shows that the question as to whether State Commission was justified in allowing the claim of the Respondent on non-standard basis was not decided because the Respondent had not filed any appeal against the said order. It was further held in case ICICI Lombard General Insurance Company Ltd. Versus Radha Devi & Anr. I (2009) CPJ 123 that even if the private vehicle was being used for commercial purpose in violation of terms & conditions of the policy and the vehicle is stolen, the OP is liable to pay compensation, because there was no nexus between use of vehicle and commission of theft. Similar view was taken by the Hon’ble Himachal Pradesh State Commission in case Chet Ram Chauhan Vs. United India Insurance Company Ltd. II (1997) CPJ 526. We are, therefore, of the opinion that the mere fact that the RC was not renewed, would not justify the action of the OP in deducting 25% from the amount of compensation and to pay it at non-standard basis.

8] In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly, allowed. The Complainant is entitled to Rs.3,37,500/-, along with interest @9% per annum since 5.8.2008 (one month after the receipt of report Annexure R-5 of the Surveyor) till the amount is paid. The vehicle was financed by Kotak Mahindra and the Complainant has already informed the OP that the amount be paid directly to the said Finance Company. In this manner, the OP shall pay the amount to Kotak Mahindra Finance Company as is due from the Complainant to them and the remaining amount, if any, will be paid to the Complainant. The Complainant shall submit the requisite forms/ affidavits and the RC to the OP so that the OP may get the vehicle transferred in its favour. The OP shall also pay Rs.5,000/- as costs of litigation to the Complainant.

9] The entire amount shall be paid by the OP within 30 days from the date of receipt of the copy of the order, failing which the OP would be liable to pay interest thereon @12% per annum since the filing of the present complaint i.e. 02.06.2009, till the amount is actually paid to the Complainant.

Certified copies of this order be sent to the parties free of charge. The file be consigned.

Complaint Case No :1086 of 2009

Date of Institution : 31.07.2009

Date of Decision : 06.11.2009

Raghubinder Singh son of Sh. Iqbal Singh, R/o H.No. 3999, Sector 22-D, Chandigarh.

….…Complainant
V E R S U S
1) M/s New India Assurance Co. Ltd., Regional Office, SCO No. 36-37, Sector 17, Chandigarh, through its Regional Manager.


2) M/s New India Assurance Co. Ltd., Branch Office, SCO No. 58, Sector 26, U.T. Chandigarh, through its Branch Manager.

.…..Opposite Parties

CORAM: SH.JAGROOP SINGH MAHAL PRESIDENT

SH.SIDDHESHWAR SHARMA MEMBER

DR.(MRS) MADHU BEHL MEMBER

Argued by:Sh.Ramesh Kumar, Adv. for Complainant.
Sh.Navin Kapur, Adv. for OPs.
PER SH.JAGROOP SINGH MAHAL, PRESIDENT
Concisely put, Raghubinder Singh – Complainant got his car bearing Regn. No. CH-04-C-4140 duly insured with the OPs for the period from 11.4.2008 to 10.4.2009 at the IDV of Rs.4,60,077/- vide Cover Note Annexure C-2. Unfortunately, the said car met with an accident with Haryana Roadways Bus No.HR-45-7314, intimation of which was given to the OPs. The car was sent to the Workshop of the authorized service dealer of the Fords and the survey was conducted by the Surveyor, duly appointed by the OPs. It was averred that it was assured by the OPs that total loss claim would be paid to the Complainant after deducting the marginal amount of Rs.25,000/-. But after some times, they pressurized him for full & final settlement at the tune of Rs.3.70 lacs and got his signatures also. Despite that, he has been running from pillar to post to get his insurance claim, but in vain. Even the legal notice dated 21.7.2009 served on the OPs failed to elicit the desired results. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.



2] Notice of the complaint was sent to OPs seeking their version of the case.



3] OPs filed reply admitting the factual matrix of the case. It was pleaded that upon intimation, Sh. Kuldeep Singh, an independent Surveyor & Loss Assessor was deputed, who submitted his report Ex.R-2, vide which the loss was assessed at Rs.2.80 lacs (including Rs.500/- as excess clause) on net of salvage basis, subject to terms & conditions of Insurance Policy. Complainant was asked for the submission of desired formalities/ documents i.e. consent letter for approved amount of Rs.2,79,500/-, but they were never filled, therefore, he was solely responsible for making the OPs handicapped to release payment of the said amount to him. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.



4] Parties led evidence in support of their contentions.



5] We have heard the learned counsel for the parties and have also perused the record.



6] It is not disputed that the IDV of the vehicle was Rs.4,60,000/- when it was insured. The same has been damaged in an accident regarding which Surveyor was appointed, who submitted his report Annexure R-2. The Surveyor in his report has admitted that they are liable to pay Rs.3,70,000/- to the complainant. However, he contended that the complainant agreed that the IDV of his vehicle be fixed at Rs.3,70,000/- and deducting the salvage value of Rs.90,000/-, a sum of Rs.2,80,000/- be paid to him. The contention of the OPs is that they are ready to pay this amount to the complainant but he has not so far sent the consent letter and other documents. It is very frustrating to note that even without any consent from the complainant, the Surveyor has given a wrong report that the complainant had agreed to treat the IDV of the vehicle at Rs.3,70,000/- instead of Rs.4,60,000/-. In fact such like Surveyors, who mislead the parties, give wrong information to the insurer and create litigation between the parties unnecessarily, should not be given this job of assessment. The present litigation has been created only due to the acts of Er.Kuldeep Singh, who was appointed as Surveyor/Loss Assessor. The complainant has denied having ever given consent for Rs.2,80,000/- as is alleged by the Surveyor nor has any been attached by the Surveyor with his report. Rather the contention of the OPs in Para No.2 of the reply & affidavit is that the complainant has not submitted any such consent due to which they have not been able to make the payment to the complainant.



7] There is no dispute about the IDV value of the vehicle, which is Rs.4,60,000/-. The salvage value has been assessed by the Surveyor at Rs.90,000/-. The complaint is, therefore, entitled to Rs.3,70,000/-. We are, therefore, of the opinion that the complaint must succeed. The same is accordingly allowed. The OPs are directed to pay Rs.3,70,000/- along with interest at the rate of 9% per annum since the filing of the present complaint i.e. 31.7.2009 and Rs.5,000/- as litigation charges within 30 days from the date of receipt of copy of this order. If the amount is not paid within the said period, the OPs would be liable to pay penal interest at the rate of 12% per annum since the date of filing of the complaint i.e. 31.7.2009 till its actual payment to the complainant.



8] The OPs are free to take appropriate action against Er.Kuldeep Singh, Surveyor/Loss Assessor, who has tried to mislead them and thrust this litigation on the parties.


Certified copies of this order be sent to the parties free of charge. The file be consigned.

Consumer Complaint No.188/08

Date of presentation: 25.7.2008

Date of decision: 7.11.2009

Sh. Satish Kumar son of Sh. Paras Ram, resident of village Kuthar, PO Bajrer, Tehsil Shahpur, District Kangra(HP)

Complainant

Versus

1. The New India Assurance Company Limited, through it’s Branch Manager, Branch Office Kotwali Bazar Dharamshala, Tehsil Dharamshala, District Kangra

2. State Bank of India, through it’s Branch Manager Main Bazar Rait, Tehsil Shahpur, District Kangra

Opposite parties

Complaint under section 12 of the Consumer Protection Act, 1986

PRESIDENT: R.K.MITTAL

MEMBER: PARDEEP DOGRA

For the complainant: Sh. Vinay Soni, Advocate

For O.P.No.1:Sh. Neeraj Bhatnagar, Advocate

For O.P.No.2 Sh. Vipul Bhardwaj, Advocate

R.K.MITTAL, PRESIDENT (ORAL)



The brief facts of the complaint, as alleged, are that the complainant Sh. Satish Kumar, after taking loan from the opposite party No.2, had stated one Kariyana Shop under the name and style “Satish Kariyana Shop” at village Kuthar, Tehsil Shahpur, District Kangra, for earning his livelihood, for himself, and his family members, by means of self employment. The complainant had got insured this shop with the opposite party No.1, (through opposite party No.2), vide Policy No.48/06/34/00001270 for the period with effect from January 2007 upto January 2008. It is alleged that on the intervening night of 15-2.2007 and 16.2.2007, a theft had taken place, in his shop, by breaking locks by un-known persons, and he has suffered loss of the articles worth Rs.15500/-. A report to this effect was lodged with the Police Station-Shahpur on 16.2.2007. The complainant had also informed the opposite parties regarding this theft. The opposite party No.1, had deputed their surveyor, and investigator for the assessment of the loss, who had submitted his report about the theft in the month of April 2007. The complainant had submitted the claim papers, and required documents with the opposite parties, and had made several visits since May 2007 in their office for the settlement of his claim, and he had spent a sum of Rs.5000/-, on it. It is alleged that the opposite parties did not settle his claim without any rhyme and reason till 30.1.2008, which act amounts to deficiency in rendering the required services towards the complainant.

It is alleged that the opposite party No.1, vide their letter dated 30.1.2008, had repudiated his claim on the ground that no marks of forcible entry was proved in his shop. Hence the complainant has sought the relief of directions to the opposite parties to pay his theft claim to the tune of Rs.15500/- alongwith interest @ 18% per annum from the date of theft till it’s final payment. He has also claimed compensation to the tune of Rs.15,000/-, for his mental agony, and harassment. He has claimed litigation charges to the tune of Rs.10,000/- of this complaint.

2. The opposite party No.1 has contested this complaint by filing his reply on 30.12.2008, in which they have contended that the claim of the complainant was duly investigated, and processed , but the same was not found to be genuine, and it was declared as “No Claim”, and there has been no deficiency on their part. They have contended that after the receipt of the intimation regarding the alleged loss/theft of the complainant, they had hired the services of the independent Surveyor-cum-Loss Assessor Sh. Who after conducting the inspection, had submitted his inspection-cum-assessment report dated 9.7.2007 to them, and the Surveyor had assessed the loss only to the tune of Rs.3000/-, subject to the terms and conditions of the Insurance Policy. The aforesaid, Surveyor had found that locks of the shop were found opened, and there was no forcible entry in the premises of the shop of the complainant, as per the D.D. report, lodged before the Police, by the complainant, so they had declared the claim of the complainant as “No Claim” as per the terms and conditions of the Insurance Policy vide their letter dated 30.1.2008.

The opposite party No.1, has also contended that they had hired the services of Sh. Rajan Sharma, Advocate, to conduct the investigation, regarding the alleged occurrence of theft, who had submitted his report on 20.1.2008, from where it was transpired that there was no forcible entry to the shop of the complainant.

They have also contended that neither the complainant has got any cause of action, nor has got any locus standi to file this complaint, and this Forum, has no jurisdiction to entertain this complaint. They have also contended that the complainant is estopped from filing this complaint, on account of his act, conduct, and acquiescence. He has concealed the material facts, regarding “no forcible entry” in his shop, hence the complaint is not maintainable, and it serves to be dismissed with costs.

3. The opposite party No.2, has also contested the complaint by filing their reply on 3.11.2008, in which they have contended that neither the complainant has got any cause of action, nor has got any locus standi to file this complaint against them. Although, they have admitted that the loan was advanced to the complainant for the purpose of “Karyiana Goods”. They have also admitted that the shop of the complainant was got insured by them with the opposite party No.1 by debiting the premium of insurance from the loan account of the complainant. They have contended that the complainant did not make several visits to their office, for settlement of his claim, and no documents were submitted with them by the complainant. They have contended that the complainant had directly pursued his theft claim with opposite party No.1, and he did not inform them (opposite party No.2), about any theft/damage to his shop. They have contended that the question of non-settlement of the theft claim, by them with the complainant, does not arise at all, and there has been no deficiency in service on their part. The complaint against them is false, and mis-conceived. It is not maintainable against them, and they have prayed for dismissal of the complaint with costs.

4. No re-joinder has been filed by the complainant.

5. We have considered the arguments of Sh. Vinay Soni, Advocate, learned counsel of the complainant, and of Sh. Neeraj Bhatnagar, Advocate, learned counsel for the opposite party No.1, and Sh. Vipul Bhardwaj, Advocate, learned counsel for the opposite party No.2, and we have also carefully gone through the file, facts, and the evidence on the record.

6. The complainant Sh. Satish Kumar, has fully supported/corroborated the averments/facts of the complaint, on oath, in his affidavit Ex.CW-1. He has also filed the affidavit of Smt. Mayan Devi, Pradhan of Gram-Panchayat-Paryi, which is Ex.CW-2, in which she has supported the version of the complainant. Annexure C-1, is the photo copy of the Police report, lodged in P.S. Shahpur, about the aforesaid theft/loss in the shop of the complainant. Annexure C-2, is the photo copy of the letter dated 30.1.2008, vide which the opposite party No.1, had repudiated the claim of the complainant.

7. On the other hand, the opposite party No.1, has filed the affidavit of Sh. R.S. Negi, their Divisional Manager, which is Ex.OPW-1. They have also filed the affidavit of the Surveyor Sh. Ashok Kumar Sharma, which is Ex.OPW-2. They have also filed the affidavit of the Investigator Sh. Rajan Sharma, Advocate, which is Ex.OPW-3, who had investigated the theft claim of the complainant. Annexure OP-1, is the report given by the Investigator Sh. Rajan Sharma, Advocate. Annexure OP-4, is the report given by the Surveyor Sh. Ashok Kumar Sharma. Annexure OP-8 is the bundle of various snaps of the shop of the complainant. Annexure OP-13 is the copy of the Insurance Cover Note of the shop of the complainant. Annexure OP-14, are the terms and conditions of the Insurance Policy. On the other-hand, Ex.OPW2-1, is the affidavit of Sh. Devinder Paul, Branch Manager State Bank of India, Branch at Rait.

8. The insurance of the stock in the shop of the complainant is admitted by both the parties. It is also an admitted fact that a theft had taken place qua the stocks, in the shop of the complainant, on the intervening night of 15.2.2007, and 16.2.2007. As per the opposite party No.1, the Surveyor had assessed the loss to the tune of Rs.3000/-only, but they have contended that as per the report of Investigator Sh. Rajan Sharma, Advocate, there were no signs of forcible entry in the shop of the complainant, so as per the terms and conditions of the Insurance Policy, they had repudiated the theft claim of the complainant vide their letter dated 30.1.2008, as is evident from Annexure OP-12.We have kept in mind the difference between the theft and the extortion. In theft, the moveable property is taken away by the thieves without the consent, and knowledge of it’s owner, whereas in extortion, property is taken forcibly, although within his knowledge, but without his free consent under threat of assault, or force etc. In the present case, admittedly, the theft had taken place in the shop of the complainant, on the intervening night of 15.2.2007, and 16.2.2007, at village Kuthar. The point that whether the locks were broken, or were opened with master keys etc., and the articles were taken without the consent, and knowledge, of it’s owner, it will amount to theft, and it is not necessary for the existence of the signs “forcible entry”.

9. From the facts, and circumstances of the case, and perusal of the evidence on the file, it is revealed out that a theft had taken place in the shop of the complainant, and he is liable to be re-imbursed qua the amount of theft of the articles, as per the assessment report made by the Surveyor. So, the complaint deserves to be allowed, and it is accordingly partly allowed against opposite party No.1 only. Since, the complainant has also suffered mental agony, and harassment, due to un-wanted act, and conduct of the opposite party No.1, so, we assess Rs.3000/- as compensation, for his mental agony, and harassment. We also assess Rs.3000/-, as litigation charges. Since, there was no role of the opposite party No.2 in this theft, so the complaint against them (OP-2) stands dismissed.

6. In view of the discussion made hereinabove, the complaint is partly allowed against the opposite party No.1, but it stands dismissed against opposite party No.2. The opposite party No.1 is directed to pay Rs.3000/-(the amount of loss assessed by the Surveyor of the opposite party no.1) within 30 days after the receipt of the copy of this order, failing which it will carry interest @ 9% per annum from the date of the complaint, till it’s realization. The opposite party No.1 is also directed to pay the compensation to the complainant, to the tune of Rs.3,000/-, for his mental agony, and harassment, and litigation charges to the tune of Rs.3000/-, within 30 days, after the receipt of the copy of this order. The copy of this order be sent to both the parties, free of costs, by post, and the file after it’s due completion be consigned to the record-room.

Announced

Consumer Complaint No: 96/2008

Date of presentation: 30/05/2008
Date of decision: 27/11/2009

Sh. Sunil Kumar, S/o Sh. Mohan Lal,

R/o Village and P.O. Lanacheta,

Sub-Tehsil Nauradhar, District Sirmaur H.P.

Presently residing at C/o Jagmohan,

Near Degree College Road, Solan,

District Solan, H.P.

… Complainant
Versus

New India Assurance Company Ltd.,

S.C.O. 54-55, Sector 34-C, Chandigarh,

Through its Branch Manager.

…Opposite Party.

For the complainant: Mr. Pardeep Kumar, Advocate vice

Mr.M.P. Kanwar, Advocate.



For the Opposite Party: Mr. Ravinder Tiku, Advocate.


O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that, he, is, owner of a, Swaraj Mazda, bearing registration No.HP-18B-0445, which was insured by him, with the OP-Company, vide insurance cover No.105778, for a sum of Rs.5,08,250/-, for a period of one year commencing from 03.10.2006 to 02.10.2007. It is averred that on, 21.06.2007, the aforesaid vehicle met with an accident near Village Uchani, on, GT Road Karnal, and suffered extensive damage. The complainant, further, proceeded to aver, that, the factum of accident was brought to the notice of the OP-Company. Thereafter, in order to make the vehicle road worthy, the vehicle was got repaired by him by incurring, an, expenditure of Rs.1,70,395/-, whereas, the surveyor appointed by the OP-Company, assessed the loss to the tune of Rs.95,628/-, which is on lower side, and it is averred, that, the surveyor has assessed the said loss, just to help the OP-Company. The complainant further proceeded to aver, that, the OP-company, has still not settled his claim, on one pretext or the other. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its version, to the complaint, besides raising preliminary objections, contended that, the complainant despite various requests made to him, failed to submit the required documents, for settlement of the insurance claim, inasmuch, as, permit authorizing him to ply the vehicle in the State of Haryana, on the date and time of accident, hence, it being infraction of terms and conditions of the insurance contract interse the parties, the claim was not payable to the insured. The further contend that, though, the loss was assessed by them, from the surveyor, so appointed by them, who vide report, dated, 16.07.2007, assessed the loss at, Rs.95,628.25, which was payable to the insured, subject to approval of the competent authority. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

5. It is not in dispute that the vehicle bearing registration No. HP-18B-0445, was insured by the complainant with the OP-Company, for a, sum of Rs.05,08,250/-, commencing from 03.10.2006 to 02.10.2007. The parities, also, do not wrangle over the fact that the aforesaid vehicle met with, an, accident on, 21.06.2007 and suffered extensive damage. The reporting of the matter to the OP-Company, and appointment of the surveyor, by it, is, also not at, contest. The OP-Company, has denied the claim of the complainant, on the score that, when the vehicle met, with an accident, it was not having a valid permit authorizing the driver to ply the same, in the State of Haryana, hence, it being an infraction of the insurance contract, so existing interse the parties at the time of accident, the OP-Company, was legally justified in denying the claim, so, lodged by the insured. However, the contention so urged by the OP-Company, has been, categorically resisted by the complainant, inasmuch, as, he, asserts, that, he was duly authorized by the competent authority to ply the vehicle in the State of Haryana, as, he, had deposited taxes to the said effect.

6. However, the complainant, has not been able to place on record proof, qua the fact, that, he was authorized to ply the vehicle, in, the State of Haryana. Though, he is, asserting that, he, had deposited the taxes with the State of Haryana, to ply the vehicle in that State, yet, Annexure R-6 and R-7, are, the receipts of goods tax, which, are of 22.06.2007 and 23.06.2007, respectively, that, too, after the date of accident. Besides, the complainant, cannot derive any support from these receipts reflecting of deposit of taxes with the State of Haryana, as, then do not constitute proof of his possessing a valid route permit, to ply the vehicle, in the State of Haryana. Hence, the plying of the vehicle, without, a, permit, is, an infraction, of the terms and conditions of the policy, legally authorizing the OP-Company to deny the claim. Consequently, the non-defrayment of the sum, spent by him on the repair of the vehicle, cannot, be, construed to be a deficiency in service or an, unfair trade practice on the part of the OP-Company.

7. Resultantly, the complaint filed by the complainant, is, liable to be disallowed, hence, we order accordingly, leaving the parties to bear their own costs. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Consumer Complaint No: 263/2008

Date of presentation: 29.07.2008

Date of decision: 16/11/2009.

Sh. Satish Kumar Nirala, S/o Sh. D.S. Nirala,

R/o Vill. Baza, P.O. Jarol, Vai Kotgarh,

Tehsil Kumarsain, District Shimla.

… Complainant.

Versus

The New India Assurance Company Ltd.

Through its Divisional Manager,

3rd Block, SDA Complex, Kasumpti Shimla-9.

… Opposite Party.

For the complainant: Mr. Pawan Kaprate, Advocate.

For the Opposite Party: Mr. Jagdish Thakur, Advocate.

O R D E R:

Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainant, Shri
Satish Kumar Nirala, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that, he, was owner of Maruti Car bearing registration No.HP-06-2360, which was insured by him, with the OP-Company, vide cover note No.0175461, for a sum of Rs.85,000/-, for a period of one year commencing from 16.11.2007 to 15.11.2008. It is averred that on, 27.01.2008, the aforesaid car met with an accident at Kufri, District Shimla, H.P., and suffered extensive damage. The complainant, further, proceeded to aver, that, the factum of accident was brought to the notice of the OP-Company, as also, to the Police, upon which FIR No.14, dated, 28.01.2008, was also lodged with the Police Station, Theog. Thereafter, the insurance claim was preferred with the OP-Company, who instead of settling the same, repudiated vide letter dated 02.06.2008. Hence, feeling dissatisfied and aggrieved by the act of the OP-Company, in repudiating his claim, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its version, to the complaint, contended that it is not liable to indemnify the complainant as the vehicle was being driven in violation of the terms and conditions of the insurance policy, as, at the time of the accident, one unauthorized passenger was traveling in the vehicle, beyond the prescribed limit. However, it is contended that after the receipt of the intimation regarding accident, Surveyor & Loss Assessor was appointed to conduct the final survey, who recommended the claim of the complainant for a sum of Rs.66,500/-, on the basis of net of salvage basis, as the vehicle was totally damaged, which was payable subject to terms and conditions of the insurance policy. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

5. It is not in dispute that the Maruti Car bearing registration No.HP-06-2360, was insured by the complainant with the OP-Company, a sum of Rs.85,000/- on IDV basis, commencing from 16.11.2007 to 15.11.2008. The parities, also, do not wrangle over the fact that the aforesaid Maruti Car met with, an, accident on, 27.01.2008, at, Kufri and suffered extensive damage. The reporting of the matter to the OP-Company, and, to, the Police, is, also not, at, contest interse the parties. The sole ground taken by the OP-Company, in its reply, while resisting the claim of the complainant, is, the violation of the terms and conditions of the insurance policy, inasmuch, as, one unauthorized passenger was traveling in the car, when, it met with an accident, hence, the repudiation of the claim of the complainant, is, contended to be tenable. In this context, the OP-Company, is, seeking support from the copy of FIR, Annexure OP-3, wherein, it is detailed that five persons were sitting in the car.

6. Now, adverting to the legal efficacy of the contention, of, the OP-Company, that, one unauthorized person beyond the prescribed limit was seating in the vehicle, hence, infracting the insurance policy, yet, said contention has remained in the realm of pleadings alone, as copy of FIR, does, not, comprise conclusive evidence qua the said fact. Even, otherwise assuming that, purportedly unauthorized passengers, were being carried in, the car at the relevant time, yet, when their being so carried, in it, has not proved to be the prima donna cause of the accident, as such, even, if, their were unauthorized passengers traveling in the car, at the time when it met with an accident, yet, with the decision of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, as reported in 2009 NCJ 670 (NC), wherein the Hon’ble National Commission, while adjudicating, upon, the presence, of, gratuitous passengers, has, conclusively, held that when merely one or two extra passengers are found traveling in the vehicle, their, being so carried, cannot be construed, as, a violation of policy, hence, in tandem with the above judicial dicta, the, OP-Company, is, obliged to indemnify the claim of the complainant, on total loss basis, and the repudiation of the claim of the complainant, by the OP-Company, on the above ground, is, untenable and illegal, which amounts to clear cut deficiency in service and unfair trade practice, on the part of the OP-Company.

7. Admittedly, Maruti Car was insured on IDV basis, for a sum of Rs.85,000/-, as is revealed by the existence of the copy of insurance cover Annexure OP-1. The Surveyor and Loss Assessor, so appointed by the OP-Company, vide survey report Annexure OP-8, dated, 30.05.2008, has assessed the loss on total loss basis at Rs.85,000/- and after deducting excess clause, and the expected salvage value, the claim has been assessed at Rs.66,600/-. The complainant, has also, claimed a sum of Rs.500/- per month, on account of the rent being paid by him, for, keeping the salvage of the vehicle, in, safe custody. As, the car was insured for an amount of Rs.85,000/- and the loss has also been assessed on total loss, basis, hence, the complainant, cannot be granted the relief over and above, the insured sum, therefore, the relief for grant of paying him, the rent, for keeping the salvage in safe custody, is, declined, being not payable.

8. As a sequitor, we allow this complaint and direct the OP-Company as follows:-

i) That the OP-Company, shall indemnify the complainant to the extent of Rs.84,000/-, on total loss basis;

ii) That the aforesaid amount of Rs.84,000/- shall also carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 29.07.2008, till actual payment is made;

iii) That since, the loss has been ordered to be indemnified by the OP-Company, on total loss basis, hence, the complainant is directed to return the salvage of the afflicted vehicle, R.C. and key to the OP-Company; within a period of one month, after the date of receipt of copy of this order;

iv) That on failure of the complainant to return the salvage of the afflicted vehicle, to the OP-Company, the OP-Company, shall be at liberty to deduct a sum of Rs.18,000/-, value of the salvage, from the insured sum of Rs.85,000/-;

v) That the litigation cost is quantified at Rs.2500/- payable by the OP-Company to the complainant;

vi) That the OP-Company, shall comply with this order within a period of forty five days, after the date of receipt of copy of this order;

vii) That the complaint stands disposed of in the above terms;

9. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Consumer Complaint No: 231/2007

Date of presentation: 30.07.2007

Date of decision: 16/11/2009.

Sh. Rajinder Kumar S/o Sh. Jiva Nand,

R/o Vill. Bhajyarh, P.O. Halog (Dhami),

District Shimla, H.P.

… Complainant.
Versus
The New India Assurance Company Ltd.

Bhagra Niwas, The Mall Shimla, H.P. 171001.

… Opposite Party.
For the complainant: Mr. Sandeep Dutta, Advocate.

For the Opposite Party: Mr. Ratish Sharma, Advocate.

O R D E R:

Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is owner of Mini Bus bearing registration No.HP-63-0196, which was insured by him, with the OP-Company, for a sum of Rs.4,88,000/-, for a period of one year commencing from 14.01.2006 to 13.01.2007. It is averred that on, 30.06.2006, the aforesaid bus met with an accident at Ghanati, and suffered extensive damage. The complainant, further, proceeded to aver, that, the factum of accident was brought to the notice of the OP-Company, as also, to the Police, upon which FIR No.120 of 2006, was registered with the concerned Police. Thereafter, the insurance claim was preferred with the OP-Company, who instead of settling it, repudiated on the ground that the bus was carrying 45 passengers, whereas the sitting capacity of the bus, was 32. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its version, to the complaint, contended that it is not liable to indemnify the complainant as the bus was being driven in violation of the terms and conditions of the insurance policy, as, at the time of the accident, about 35-40 passengers were travelling in the bus in question. It is further contended that no LTV driving licence can be directly issued without first an LMV driving licence. They further contend that as per final assessment report, the loss was assessed at Rs.1,82,496/-, which was payable subject to terms and conditions of the insurance policy. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

5. It is not dispute that the bus bearing registration No.HP-63-0196, was insured by the complainant with the OP-Company, for a sum of Rs.4,88,000/-, commencing from 14.01.2006 to 13.01.2007. The parities, also, do not wrangle over the fact that the aforesaid bus met with, an, accident on, 30.06.2006 at, Ghanati and suffered extensive damage. The reporting of the matter to the OP-Company, and to the Police, is, also not at contest interse the parties. The sole ground taken by the OP-Company, in its reply, while resisting the claim of the complainant, is, the violation of the terms and conditions of the insurance policy, inasmuch, as, about 35-40 passengers were travelling in the bus, against the seating capacity of 32, when, it met with an accident, hence, the repudiation of the claim of the complainant, is, contended to be tenable. In this context, the OP-Company, is, seeking support from the copy of FIR, wherein, it is detailed that abut 35-40 passengers were seating in the bus.

6. Now, adverting to the legal efficacy of the contention, of, the OP-Company, that, about 35-40 passengers, were seating in the vehicle, against the seating capacity of 32, the said contention has remained in the realm of pleadings alone, as copy of FIR, does not comprise conclusive evidence qua the said fact. Even, otherwise assuming that, purportedly 35-40 passengers, were being carried in, the vehicle at the relevant time, against the seating capacity of 32, yet, when their being so carried, in it, has not proved to be the prima donna cause of the accident, as such, even, if, their were unauthorized passengers travelling in the bus, at the time when it met with an accident, yet, with the decision of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, as reported in 2009 NCJ 670 (NC), wherein the Hon’ble National Commission, while adjudicating, upon, the presence, of, gratuitous passengers, has, conclusively, held that when merely one or two extra passengers are found traveling in the vehicle, their, being so carried, cannot be construed, as, a violation of policy, hence, in tandem with the above judicial dicta, the, OP-Company, is, obliged to indemnify the claim of the complainant.

7. The next objection of the OP-Company that no LTV driving licence can be directly issued without first, an LMV and it being violation of section 7 of the M.V. Act, the driving licence, is, illegal. Though, the contention, as, raised by the OP-Company, may have some force, yet, when the driving licence has been issued by the Competent Authority, authorizing him to drive LTV vehicle, hence, its invalidity cannot be assailed before this Forum, by contending that no LTD driving licence can be directly issued without first an LMV driving licence.

8. Now, it is to be determined as to what amount of compensation, the complainant, is, entitled from the OP-company, on account of damage suffered by the bus, in the accident. The Surveyor and Loss Assessor, so appointed by the OP-Company, vide survey report Annexure R-4, dated, 12.08.2006, has assessed the loss at, Rs.1,82,496/- and a sum of Rs.2500/- has also been recommended to be paid to the complainant towards towing charges, as per the terms and condition of the policy. Though, the complainant has claimed a total sum of Rs.3,22,529/-, yet, we find no material on record, that the complainant is entitled to claim a sum of Rs.3,22,529/- from the OP-Company. Hence, in the absence of cogent and convincing material, the complainant, cannot be granted the amount of Rs.3,22,529/-.

9. As a sequitor, we allow this complaint and direct the OP-Company as follows:-

i) That the OP-Company, shall indemnify the complainant to the extent of Rs.1,84,996/-;

ii) That the aforesaid amount of Rs.1,84,996/- shall also carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 30.07.2007, till actual payment is made;

iii) That the litigation cost is quantified at Rs.2500/- payable by the OP-Company to the complainant;

iv) That the OP-Company, shall comply with this order within a period of forty five days, after the date of receipt of copy of this order;

v) In the above terms, the complaint stands disposed of accordingly.

10. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room

Consumer Complaint No: 85/2007

Date of presentation: 07/08/2007

Date of decision:12/11/2009

Sh. Jaimal Singh, S/o Sh. Mehar Singh,

R/o Vill. Khodri Majri, Tehsil Paonta Sahib.

Distt. Sirmour.

… Complainant.
Versus

The New India Assurance Co. Limited

Divisional Office 353000, S.C.O. 804 N.A.C.

Mani Majra Chandigarh (UT)

Through its Branch Manager.



… Opposite party.
For the complainant: Mr. Kamaljeet Sharma, Advocate.


For the Opposite Party: Mr. A.S. Shah, Advocate.


O R D E R:

Sureshwar Thakur (District Judge) President :- This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is registered owner of tractor bearing registration No.HP-17B-9541, which was insured, by him, with the OP-Company, for a period of one year commencing from 22.09.2006 to 21.09.2007. He further avers that the aforesaid tractor, unfortunately, met with an accident, on, 15.05.2007, during the currency of the insurance policy and suffered extensive damage. It is further averred that, the factum of the vehicle, having met, with an accident, was reported to the OP-Company, as also, to the Police, upon which, Rapat No.8, dated, 16.05.2007, was lodged with the Police Post, Singhpura. It is averred that in order to make the tractor road worthy, he spent more-than Rs.1,00,000/-. Thereafter, he, lodged insurance claim with the OP-Company, who instead of settling the same, dilly-dallied the same on one pretext or the other. Hence, it is averred that, there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, and breach of terms and conditions of the insurance policy. On merits, it is contended that the complainant did not supply the estimates of repairs enabling them to assess the claim. Further more, the complainant was not asked to get the vehicle repaired and that he had shifted the tractor from the place of site without any inspection from the surveyor. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

5. The complainant, is, aggrieved by the act of the OP-company, in not settling his insurance claim, qua the loss suffered by him on account of damage caused to his insured tractor, in an accident, on, 15.05.2007. The OP-Company, has come up with specific stand that though the intimation regarding accident was given to them, yet, the complainant, had lifted the tractor, from the place of occurrence, without any inspection by their surveyor and further failed to supply the estimate of repairs to them. Since, the, essence, of the, repudiation of the OP-Company, is, anvilled upon, the above contention and when the complainant have not been able to rebut or controvert the said fact by adduction of any potent evidence, demonstrating, that, he lifted the vehicle from the place of occurrence with their consent and, also, did submit the estimate of repairs, and, as such, purportedly incurred expenses to the extent of Rs.1,00,000/- for making the vehicle road worthy. Obviously for lack of above evidence, the, contention, as, raised by the OP-Company, in not defraying the expenses to him, has to be construed to be tenable.

6. Nonetheless, since the bills of repairs which have been placed on record by the complainant, have neither been considered nor rejected, therefore, we deem fit and in the interest of justice, that, on the complainant forwarding to the OP-Company, the bills of expenses incurred by him in making the vehicle road worthy, the same shall be considered by the OP-Company, and, then, in case they are found to be authentic, the OP-Company, shall proceed, to, indemnify the complainant in accordance with Rules. This exercise shall be completed by the OP-company, within a period of forty five days, after the receipt of the bills by it, from the complainant. No order as to the costs. With this, the complaint stands disposed of.

7. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Complaint No. 147/20.2.2009.
Date of order: 11.11.2009.
Balwant Singh aged 61 years, son of late Sh.Nanak Chand, resident of 962, St. No.7, Chander Nagar, Civil Lines, Ludhiana.

(Complainant)
Vs.
1. The New India Assurance Company Ltd. through its Director/Chairman/ Managing Director/General Manager, New India Assurance Co. Building 87, Mahatma Gandhi Road Fort, Mumbai -400001.
2. The Manager, New India Assurance Co. Ltd. 29, Atam Park, Dugri Road, Ludhiana.
3. Vipul Med. Corp. TPA Ltd. 515, Udyog Vihar, Phase-V, Gurgaon (Haryana)- 122016.

(Opposite parities)

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.
Quorum:

Sh. T.N. Vaidya, President.

Sh. Rajesh Kumar, Member.
Present:
Sh.A.K. Rana Advocate for the complainant.

Sh. D.R. Rampal Advocate for Op No.1& 2

Op No.3 is ex-parte.
O R D E R

RAJESH KUMAR, MEMBER:

1. Vide this complaint under section 12 of the Consumer Protection Act, 1986; the complainant has challenged the rejection of his medi claim under the insurance policy no. 360300/34/07/11/00000597 valid for the period from 13.3.2008 to 12.3.2009, on the grounds of pre-existing disease.

2. Briefly spelled, the case of the complainant is that initially he got insured himself for personal accidence for the period 19.9.02 to 18.9.03 by paying the requisite premium and then obtained individual medical hospitalization/domiciliary hospitalities benefit policy for the period 13.3.05 to 12.3.06 under policy no.360300/48/04/75432 and till then is continuously taking the insurance policy. Last policy was for the period 13.3.2008 to 12.3.2009 bearing no. 360300/34/07/11/00000597. in the year 2007, during currency of Insurance policy, was admitted in Dayanand Medical College & Hospital, Ludhiana and on lodging the claim, be was paid Rs. 19000/- for treatment of single vessel disease. Again on 3.11.08, he suffered acute chest pain and admitted to DMC & Hospital where after receiving report of angiography regarding triple vessel disease in right side of chest heart detected with coroflex 3.5 x 19mm, he was operated for stunt and discharged on 6.11.2008. Complainant spent Rs.1,50,000/- on his treatment, regarding which the bills were also sent to the opposite parties. But they rejected his claim, though he had obtained the policy for Rs.1,00,000/-. He only received discharge voucher for Rs.11,835/- by deducting Rs.96,943/- on the ground that disease was preexisting. Averred that the disease newly occurred during currency of the medicalim policy, for which opposite parties received premium, issued cover note no.360300/34/07/11/00000597. He is legally entitled for claim of Rs.1,03,000/- and Rs.5000/- as bonus. He made several oral and written requests to opposite party but without any effect. Also got served legal notice dated 19.1.2009. Pleaded that acts and deeds of the opposite parties amount to deficiency in service and unfair trade practice, due to which complainant has suffered mental pain and agony. He has sought direction against opposite parties to pay an amount of Rs.1,03,000/- as medical claim under the policy and Rs.20,000/- as compensation for deficiency in service and resorting to unfair trade practice.

3. In written reply, opposite parties took objections that complaint being false and frivolous is not maintainable; complainant estopped by his act and conduct from filing the complaint, which has been filed only to harass them; complaint is bad for non joinder and mis joinder of necessary parties; intricate questions of law and facts are involved which can not be decided summarily by this Fora and only civil court is competent to decide the same. Averred that there is no deficiency in service on their part. Fact regarding issuance of the insurance policies to the complainant is admitted as matter of record. Lodging of earlier claim in the year 2007 and present complaint and payment of Rs,. 11,835/- are also admitted. Rest all the assertions made in the complaint have been denied. Receipt of legal notice is also admitted and pleaded that it was duly replied vide reply dated 24.1.2009. Pleaded that earlier Hospitalization and Domiciliary Hospitalisation policies are showing the limit of complainant at Rs.25,000/-but w.e.f. 13.3.08, complainant got extended his limit to Rs.1,00,000/-. He was very much aware that some major amount will be spent on his disease. He was suffering from pre-existing disease and due to this reason, he got extended his limit to Rs.1,00,000/- with malafide intention. He was even operated in the year 2007 and without disclosing his earlier facts got extended the limit of policy upto Rs.1,00,000/-. The benefit of the increased sum insured would not be available to the insured as the complainant was treated upon in Feb. 2007. The claims relating to disease would be limited to Rs.25,000/- + claim bonus earned. Opposite party no.3 also wrote letter dated 6.11.2008 to DMC & Hospital, Ludhiana that authorization for cashless service is not possible for enhanced amount, illness is pre-existing since Feb.2007. The type of cases are being dealt with by the opposite party no.3 Vipul Med Crop. TPA Pvt. Ltd. On lodging the claim, it was sent to opposite party no.3 who minutely scrutinized the same and found that the claim relating to heart disease would be limited to Rs.25000/-= CB earned i.e. Rs.3750/-. The benefit of increased sum insured would not be available to the insured and settled cashless claim for Rs.16,9`15/- and sent DV for Rs.11,835/- against reimbursement claim to the insured. That amount was accepted by the complainant in full and final settlement of his claim. As such, he is not entitled to any alleged amount as demanded in this complaint. Complaint has been filed with malafide intention to harass them. It has been prayed that the complaint be dismissed with costs.

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

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

6. The complainant argued that he got policy for the period 19.9.2002 to 18.9.03 for personal accident insurance and also paid the premium and also obtained the medical hospitalization/domiciliary hospitalization benefit policy for the period 13. 3.05 to 12.3.06 also for the period 13.3.06 to 12.3.07 and also again 13.3.07 to 12.3.08 and 13.3.08 to 12.3.09 and paid the premium for the policies. Complainant argued that in Feb.2007, he was admitted in DMC & Hospital, Ludhiana for treatment of single vessel disease and claimed Rs.19000/- and received it. Complainant argued that he suffered acute pain in the chest on 3.11.08 and rushed to the DMC & Hospital, Ludhiana and was admitted on the same day and after preliminary checking, doctor advised for angiography and after receiving the report of angiography the result came that triple vessel disease in the right side of the chest heart detected with coroflex 3.5 into 19 mm. As such, the complainant was operated for stunt and was discharged on 6.11.08. (Ex.C1). Complainant argued that he spent more than 1,50,000/- including medicines and bills and was sent to the opposite party and it was to utter dismay to the complainant that his claim was rejected by the opposite party inspite of the fact that the complainant was having a medical claim policy for an amount of Rs.1,00,000./- and the complainant received a discharge voucher for an amount of Rs.11,835/- and deducting 96,943/- with the pretext that disease was pre-existing. Complainant argued that he enhanced his sum insured for policy from 25000/-to 1,00,000/- and paid the premium for this. This policy was from the period 13.3.08 to 12.3.2009 and policy no. is 360300/34/07/11/000005097 vide receipt no. 12.3.08 Ex.C8. The complainant argued that he was admitted in hospital on 3.11.2008 with chief complaints of chest pain and patient evaluated ECG showed acute inferior wall MI and patient was taken for primary PTCA coronary angiography was done on 3.11.08, which showed triple vessel disease (Ex.C.1) Primary PTCA with stenting to RCA, (coroflex 3.5 x 19mm) was done on the same day. Injection Eptiflo was given during the procedure. TIMI 3 blood flow was achieved and procedure was done under all septic conditions. Patient Haemodynamically stable and discharged on 6.11.2008. As the complainant was treated for triple vessel disease and a bill for medicines and other charges was sent to the opposite party (Ex.C2 and C3) The complainant argued that the amount of Rs. 11,835/- was received by the complainant and Rs.96,943/- was deducted by opposite party that the disease was pre-existing. Complainant argued that the disease was not pre-existing. Suddenly, he felt pain in the chest and got admitted on 3.11.08 in DMC & Hospital, (Ex.C.1) The complainant argued that he has got sum assured for the medi claim policy for an amount of Rs.1,00,000/-. Therefore, the opposite party should have paid the amount spent more than 1.03 lacs for hospitalization and medicines during the stay in the hospital as the claim is legal and genuine.

7. The opposite party argued that the complainant also lodged the claim of single vessel disease CAD on 16.2.07 and claim of Rs.19000/- was paid to the complainant. The opposite party argued that it is wrong to say that complainant had spent more than 1.03 lacs during the say at hospital including medicines and it is also wrong to say that complainant is entitled for the claim of more than 1.03 lacs. As medical claim. Opposite party argued that the complainant has got extended his limit from 25,000/- to 1 lac as the complainant was aware that some major amount will be spent on his disease during the coming days. The opposite party argued that the complainant was even operated upon the year 2007 which shows that disease was pre-existing. Therefore, the complainant without disclosing the facts, got extended the limit of the policy upto 1,00,000/-. The opposite party argued that the claim of the complainant was relating to heart disease will only be limited t 25,000/- plus claim bonus earned. Opposite party also argued that they have written one letter dated 6.11.08 to DMC Hospital (Ex.R1) in which they have written that authorization for cashless service is not possible for enhanced amount as illness is pre-existing since Feb.2007. The opposite party argued that the claim was settled for cashless for Rs.16,915 and sent DV for Rs.11,835 against reimbursement claim to the complainant and the amount was accepted by the complainant in full and final payment of his claim. Therefore, the opposite party argued that the complainant is not entitled to any alleged amount as demanded and the complaint be dismissed. Opposite party also mentioned the decision of the office of Insurance Ombudsman, Delhi. In case no. GI503 NIA/07 in matter of Satish Kumar Bansal Vs. New India Insurance Company and argued that this case is also similar to the case of Sh. Balwant Singh, therefore, the claim lodged by Sh. Balwant Singh is not tenable as per clause 4 and 4.1 as per the condition of the policy, as the disease was pre-existing.

8. From the above facts and figures, it is clear that the complainant suddenly suffered acute chest pain on 3.11.2008 and rushed to DMC & H. Ludhiana and was admitted there on the same day and was suffering from triple vessel disease in the right side of the chest heart detected with coroflex 3.5 x 19 mm and was operated for stunt by the doctors and was discharged on 6.11.2008 (Ex. C1). It is to mention here that the complainant got his policy no. 360/300/34/07/11/000005097 and policy for the period 13.3.08 to mid night of 12.3.09 in which the complainant has enhanced his sum insured from 25,000/- to one lac and paid the premium. In which it was shown that not disease was pre-existing. (Ex.C.8). It is also to make it clear that the opposite party which they have given the reference of Insurance Ombudsman, New Delhi, there was a request form the insurer and an undertaking that in case of the Heart Disease, the claim shall be restricted to Rs.50,000/- with accumulative bonus. But in the present case of Sh. Balwant Singh, he has not given any undertaking in this regard to the opposite party. As the complainant was operated upon on 3.11.08 for triple vessel disease and he has submitted the bill to the opposite party (Ex.C2) and C3. Complainant had spent for his hospitalization and medicines and spent more 1.5lacts including medicines and hospitalization during the stay at Hospital Ex.C2 & C.3. and the complainant received a discharge voucher for Rs.11,835/- and Rs.96,944/- was deducted by the opposite party under the pretext that the disease was pre-existing.

9. Fora is of the opinion that as the complainant got the treatment for single vessel disease in the year 2007 and the opposite party has given him Rs.19,0000/- for his treatment. Now the complainant suffered acute pain in the chest suddenly on 3.11.2008 and rushed to the hospital for operated upon for triple vessel disease in the right side of the chest heart with coroflex 3.5 x 19mm and operated for stunt by the doctor and discharged on 6.11.2008. Therefore, as suddenly it was an acute chest pain, this can not be said that it was a pre-existing disease. Therefore, Forum directs the opposite party to settle the claim as per terms and conditions of the medicalim policy as the complainant has insured himself for Rs.1,00,000/-. Therefore, the opposite party is ordered to settle the claim of the complainant as this disease can not be presumed that it was pre-existing one. Compliance of the order be made within 45 days of the receipt of copy of the order, which be made available to the parties free of costs. File be completed and consigned to record.

Complaint No.222 of 2009

Instituted On: 10.11.2009

Decided On: 11.11.2009

Narpinder Kumar Aggarwal, Advocate (aged 50 years), Court Complex, Zira.

Complainant
Versus
The New India Assurance Company Limited, G.T.Road, Moga through its Divisional Manager.

Opposite Party

Complaint under section 12 of The

Consumer Protection Act, 1986.
Quorum: Sh.J.S.Chawla, President.

Sh.Jit Singh Mallah, Member.

Present: Sh.D.K.Garg, Adv.counsel for the complainant.

(J.S.CHAWLA, PRESIDENT)

Sh.Narpinder Kumar Advocate complainant has filed the present complaint under section 12 of The Consumer Protection Act, 1986 (herein-after referred to as ‘Act’) against The New India Assurance Company Limited, G.T.Road, Moga through its Divisional Manager (herein-after referred to as ‘Insurance Company’)-opposite party directing them to pay Rs.10394/- on account of accidental claim caused to his car bearing RC no.PB-47C-7800 and also to pay Rs.50000/- as compensation for causing mental tension, harassment and agony.

2. Briefly stated, Sh.Narpinder Kumar Aggawal complainant purchased a Maruti Car bearing no.PB47C-7800 from M/s.Baba Autos Ferozepur. That the complainant got the said car insured vide policy no.460041782 w.e.f. 20.11.2009 to 19.11.2010 after making the full premium to Baba Autos, Ferozepur. That his car met with an accident and he informed the OP-Insurance Company and they appointed Sh.Sumeet Jain as surveyor who verified about the accident. That the car was got repaired from Pankaj Motors, Moga. That the OP-Insurance Company has failed to pay the accidental claim to the complainant inspite of various requests and visits. Hence, the present complaint.

3. We have heard Sh.D.K.Garg ld.counsel for the complainant and very carefully gone through the documents placed on the file.

4. The allegation made in the complaint shows that the complainant got insured his vehicle i.e. Maruti car bearing no.PB47C-7800 from Ferozepur and not insured at Moga. So the claim, if any, has to be paid by The New India Assurance Company Ltd. Ferozepur and the territorial jurisdiction of this Forum is barred. The complainant shall lodge/ file his claim/ complaint, if any, within the territorial jurisdiction of Ferozepur Forum. Therefore, the complaint filed by the complainant can not be admitted. The original documents, if any, be returned to the party on proper receipt. Copies of the order be sent to the parties free of cost and thereafter, the file be consigned to the record room.

CC. No. 109 of 06-05-2009

Decided on : 11-11-2009


Kulwant Singh S/o Sh. Hakam Singh, aged 47 years, R/o Village Neor, P.O. Maluka, Tehsil Phul, District Bathinda.

.... Complainant

Versus


1. Bakshi Ortho & Maternity Centre, Bibi Wala Road, Bathinda trhough Prop. Dr. H.S. Bakshi, MBBS, MS (Ortho), Bibi Wala Road, Bathinda.
2. The New India Assurance Co. The Mall, Bathinda through its Divisional Manager.

... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

QUORUM

Sh. George, President

Dr. Phulinder Preet, Member

Sh. Amarjeet Paul, Member


For the Complainant : Sh. K.S. Bhullar, counsel for the complainant.

For the Opposite parties : Sh. J.D. Nayyar, counsel for opposite party No. 1

Sh. Sunder Gupta, counsel for opposite party No. 2.

O R D E R


GEORGE, PRESIDENT


1.

The complainant has approached this Forum with the complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act') against the opposite parties that his ankle bone was fractured for which he consulted opposite party No. 1 on 11-04-2007 who advised him an operation. He was admitted with opposite party No. 1 on 12-04-2007 and was operated upon and was discharged on 14-04-2007. The opposite party No. 1 charged Rs. 30,000/- for the said operation. There was pus flowing from the wound due to infection caused due to negligence of opposite party No. 1 as he has failed to conduct test for diabetes and other necessary tests. Since the infection was rising day-by-day and pus started pouring from wound profusely, the complainant got the wound checked from opposite party No. 1 on 19-04-2007, 24-04-2007, 01-05-2007, 07-05-2007 and 27-05-2007 and he assured the complainant that the wound will heal with passage of time. When his wound did not heal, he consulted Dr. Vijay, Obed, Specialist at CMC, Ludhiana on 29-05-2007, who started treatment and advised him that opposite party No. 1 has operated the complainant negligently due to which the condition of injury/wound worsened and to save his leg, 4/5 operations are required to be done otherwise his leg has to be amputated.

On 14-07-2007, the complainant was admitted in CMC Ludhiana and was operated upon and discharged on 25-07-2007. Thereafter he was again admitted in CMC Ludhiana on 10-09-2007 and was operated on 11-09-2007 and was discharged on 22-09-2007. Since he remained under treatment at CMC Ludhiana, he visited the said hospital on 29-05-2007, 06-06-2007, 13-06-2007, 20-06-2007, 27-06-2007, 30-06-2007, 11-07-2007, 14-07-2007, 28-07-2007, 01-02-2007, 08-08-2007, 18-08-2007, 25-08-2007, 08-09-2007, 26-09-2007, 03-10-2007, 10-10-2007, 24-10-2007, 31-10-2007, 28-11-2007, 22-12-2007, 02-01-2008, 27-02-2008, 22-03-2008, 26-06-2008, 02-07-2008, 03-07-2008, 10-07-2008. 26-07-2008, 20-08-2008, 27-08-2008, 03-09-2008, 04-10-2008, 25-10-2008, 29-11-2008. Thereafter he was again admitted in CMC Ludhiana on 03-12-2008 and after operation on 04-12-2008, was discharged on 13-12-2008. He again visited Ludhiana for check-ups on 20-12-2008, 24-12-2008, 27-12-2008, 31-12-2008, 07-01-2009, 14-01-2009, 21-01-2009 and on 31-01-2009. The complainant pleads that he is still on rich and special diet and had to spend a lot on transportation, tests and operations. Had the opposite party No. 1 has done test for diabetes and other tests before operation, he could have been saved from all these sufferings and uncalled miseries. He alleges that due to negligent act of opposite party No. 1, he has suffered mental tension, agony, pains, inconvenience and monetary loss. Hence, this complaint for issuing directions to the opposite parties to pay him compensation/damages as under :-

1. Transportation charges from Bathinda Rs. 1,00,000/-

to Ludhiana

2. Expenses incurred for tests, operation Rs. 2,50,000/-

charges and for attendant

3. Medicine expenses Rs. 1,50,000/-

4. Expenses incurred for rich diet etc., Rs. 3,00,000/-

5. Loss of four crops and sale of milk etc., Rs. 2,00,000/-

6. Loss of son's academic year Rs. 1,00,000/-

7. Pains & sufferings Rs. 1,00,000/-

------------------------

Total : Rs. 12,00,000/-

------------------------

He also claims interest @18% P.A. on the aforementioned amount from the date of negligent operation conducted by opposite party No. 1 till realisation and litigation expenses to the tune of Rs. 22,000/-.
2.

The opposite party No. 1 filed reply taking preliminary objections that complaint is not maintainable; complainant is not consumer as defined under the 'Act'; he has not approached this Forum with clean hands; since complicated questions of law are involved in the complaint, this Forum has no jurisdiction to entertain and try the complaint in summary procedure; complainant has no cause of action; this Forum has no jurisdiction; complainant is estopped from filing the complaint by his own act and conduct; complaint is false and fictitious and there is no negligence on the part of opposite party No. 1.

On merits, it has been submitted that Kulwant Singh, complainant was admitted in Bakshi Hospital, Bathinda (opposite party No. 1) on 12-04-2007 with infected wound over the back ankle in the region of Achilles tendon of about 15-20 duration. He was a known patient of Diabetes Mellitus and was taking some medicines for the same. All the necessary investigations were got done from qualified Pathologists lab. The wound debridement was done under GA on 12-04-2007 and dressing was done over it and subsequently he was discharge on 14-04-2007 after change of dressing. He was attended to in the OPD on 19-04-2007, 24-04-2007, 01-05-2007 and then 07-05-2007. Dressings were done on the wound and antibiotics and other medicines were prescribed for wound healing. When the wound apparently was healthy and fit for skin grafting procedure, he was advised to get skin grafting done by some plastic surgeon. It has been specifically denied that complainant had any fracture of the ankle bone as claimed in the complaint or he was ever treated for any fracture by opposite party No. 1 in his hospital. It has been pleaded that had the complainant been suffering from any fracture of the ankle bone and operated upon for the same, he could not have been discharged just on the third day of admission and operation. This is merely a concocted story of the complainant to extort money. It has been denied that an amount of Rs. 30,000/- has been charged from the complainant. However, it has been stated that opposite party No. 1 charged Rs. 5,000/- and nothing beyond that from him. The treatment given by opposite party No. 1 to the complainant was for infected wound over Tendo-Achilles of Left Side and not for ankle fracture.

It has been submitted that the as per records submitted by the complainant, he was admitted in the CMC Hospital, Ludhiana under Dr. Vijay Obed, a Plastic Surgeon on 14-07-2007 as a “k/c/o (known case of) Diabetes Mellitus” with wound Left Teno-Achilles region due to TRAUMA 2 months back” and not with any fracture as claimed by the complainant and was treated there accordingly. It is clearly written in the records of CMC Ludhiana that there is wound 6x2 cms. in left tendo-achilles region with granulation present and tendons not exposed which was treated by Local Flap Coverage of Wound and STSG. All other remaining averments made by the complainant has been denied and prayer has been made for dismissal of the complaint.
3.

The opposite party No. 2 filed reply taking almost similar legal objections as has been taken by opposite party No. 1. It has been stated that opposite party No. 1 has obtained Doctor's Professional Indemnity Policy vide Cover Note No. 360601/46/06/34/00000/10 effective from 27-04-2006 to 26-04-2007 for a sum of Rs. 10,00,000/- for any one accident for any one year. However, it has been pleaded that opposite party No. 1 has violated the terms and conditions of the policy, as such opposite party No. 2 is not liable to pay any compensation to the complainant.
4.

In support of his averments contained in the complaint, the complainant has produced in evidence his affidavit Ex. C-1, photocopy of prescription slip Ex. C-2, photocopy of discharge summary Ex. C-3, photocopies of retail Invoices Ex. C-4 to Ex. C-5, photocopy of discharge summary dated 22-09-07 Ex. C-6, photocopies of retail Invoices Ex. C-7 to Ex. C-8, photocopy of discharge summary dated 13-12-2008 Ex. C-9. Photocopies of retail Invoices Ex. C-10 to Ex. C-12, photocopies of cash memos Ex. C-13 to Ex. C-127, photocopies of receipts Ex. C-128 to Ex. C-133, photocopies of Lab reports Ex. C-134 to Ex. C-136, photocopy of E.C.G. Ex. C-137, photocopies of reports Ex. C-138 to Ex. C-141 and payment receipts Ex. C-142 to Ex. C-192.
5.

To controvert the evidence of the complainant, opposite party No. 1 produced on record affidavit of Dr. H S Bakshi Ex. R-3, photocopy of Bed Head Ticket Ex. R-4, photocopy of consent form Ex. R-5, photocopies of certificates Ex. R-6 to Ex. R-8 and opposite party No. 2 tendered in evidence affidavit of Sh. PK Jain, Senior Divisional Manager Ex. R-1 and photocopy of Insurance policy Ex. R-2.
6.

We have heard learned counsel for the parties and have gone through the entire record of the case.
7.

Learned counsel appearing on behalf of the complainant has vehementally argued that in fact initially ankle bone of the complainant was fractured for which he consulted opposite party No. 1 on 11-04-2007. He was admitted by opposite party No. 1 in his hospital on 12-04-2007 and after the complainant was operated upon, he was discharged on 14-04-2007 and thereafter he remained under treatment with opposite party No. 1 and visited his clinic as per advice of opposite party No. 1 on 19-04-2007, 24-04-2007, 01-05-2007, 07-05-2007 and 27-05-2007. There was infection in the wound and the condition of the wound of the complainant was worsening day by day. He also visited opposite party No. 1 on 15-05-2007 and 27-05-2007. The opposite party No. 1 told the complainant that his wound will heal with passage of time. Ultimately when the complainant found no healing in the wound, he consulted Dr. Vijay Obed, Specialist at CMC, Ludhiana, on 29-05-2007 and he was told that operation done earlier by Dr. Bakshi was done with gross negligence due to which the condition of the injury/wound worsened and the wound was found highly infested with infection. At CMC, Ludhiana, the complainant was told to undergo 4-5 operations to save his leg otherwise his leg has to be amputated.
8.

Now the question arises before us as to whether the complainant was treated either with negligence or carelessness by opposite party No. 1 during the period 11-04-2007 to 27-05-2007 and if the complainant was not treated for fracture but was treated only for a wound in his left ankle, as to why after an operation and continuous treatment for a period of about 1-1/2 months, the condition of wound instead of improving went bad to worse.

The negligence is the breach of duty caused by the omission to do something which is a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. (See Law of Torts, Ratanlal & Dhirajlal Twenty-fourth Edition 2002 at P. 441-442)

Negligence means “either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one; is rather a comparative term. In determining whether negligence exist in a particular case, all the attending and surrounding facts and circumstances have to be taken into account.”(Municipal Corpn. Of Greater Bombay Vs. Laxman Iyer (2003) 8 SCC 731 para 6.

Negligence is strictly non-feasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to the dictates of ordinary prudence.

The Hon'ble Supreme Court recently in Martin F.D.'Souza V. Mohd. Ishfaq 2009 CTJ 352 (SC)(CP)=(2009) 3 SCC 1, has laid down certain precautions which are required to be taken by Hospitals/Doctors in the following terms :

“(a) Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly...

(b) No prescription should ordinarily be given without actual examination. The tendency to give prescription over telephone, except in an acute emergency, should be avoided.

(c) A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary.

(d) A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient.

(c) An expert should be consulted in case of any doubt.,
9.

Taking into consideration the settled position of law, as referred to here in above, it is also required to take into consideration the standard of duty to care in medical services which is expected from the hospitals and doctors. The premium stature of services available to the patient certainly raises a legitimate expectation. The deficiency in service emanates from conduct in which the patients are dealt with in the hospital by the doctors. Even in the matter of determining the deficiency in medical service, it is now well-settled that if representation is made by a doctor that he is a specialist and ultimately it turns out that he is not, deficiency in medical services would be presumed. The Hon'ble Supreme Court in Smt. Savita Gar Vs. The Director National Heart Institute 2004 CTJ 1009 (SC)(CP)=(2004) 8 SCC 56, has held that :-

“It is the common experience that when a patient goes to a private clinic, he goes by the reputation of the clinic and with the hope that proper care will be taken by the Hospital authorities. It is not possible for the patient to know that which doctor, will treat him. When a patient is admitted to a private clinic/hospital, it is hospital/clinic which engages the doctors for treatment., They charge fee for the services rendered by them and they are supposed to bestow the best care.
10.

The Hon'ble Supreme Court in Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others 2009 CTJ 1064 (Supreme Court) CP), has laid down certain principles which are to be considered before fixing individual liability of the doctors i.e :-

“There cannot be, however, by any doubt or dispute, that for establishing medical negligence or deficiency in service, the courts would determine the following :

(i) No guarantee is given by any doctor or surgeon that the patient would be cured.

(ii) The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill.

(iii) Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence.

(iv) Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which

he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.

(v) In a complicated case, the court would be low in contributing negligence on the part of the doctor, if he is performing his duties to be best of his ability.

Bearing in mind the aforementioned principles, the individual liability of the of the doctors and hospital must be judged.”
11.

Taking into consideration the position of law as has been explained herein above, we have examined the record of the treatment the complainant was provided by opposite party No. 1 during the period 11-04-2007 to 27-05-2007. The history sheet of the treatment of the complainant Ex. R-4 is brought on the record by opposite party No. 1 which shows that the complainant was admitted for treatment of infected wound over heel region more than one month duration. Known diabetic case and the second and third page of the history sheet do not show as to what kind of wound dressing was done after putting the complainant under General Anesthesia. The detail of the dressing and wound in detail is not given except mentioning administration of few medicines on 12-04-2007. The detail of the operation also not mentioned. Even while discharging the complainant from the hospital on 14-04-2007, the detail of the treatment not mentioned. Even no discharge slip was prepared nor the condition of wound mentioned in the discharge slip/history sheet of the complainant's treatment record.
12.

We have perused the patient consent form Ex. R-5. It has been got signed from the complainant. It is a printed document. Only name of the patient has been filled in and the signatures are obtained. It is not even counter signed by opposite party No. 1 nor this consent form is disclosing as to for what purpose the complainant was admitted and remained in the hospital for three days, what treatment he was to be provided and what was the supposed out come of this admission, is not at all explained to the complainant. It appears that the consent form Ex. R-5 has been filled in as a mere formality without counter singing the same by opposite party No. 1. The portion of discharge summary in consent form is totally blank which shows that the complainant was not given discharge summary/treatment details, at the time he was released from indoor consultancy. The patient consent Form Ex. R-5 on bare perusal reveals that it is not in accordance with the requirements of Medical Council Act. The Hon'ble Supreme Court in the case titled Samira Kohli Vs. Prabha Manchanda & Anrs. AIR 2008 Supreme Court 1385has laid down the following principles presently govern patient's consent :

i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment' ( treatment includes surgery also). The consent so obtained should be real and valid, which means that the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to.

ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgement as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose – (a) nature and procedure of the treatment and its purpose, benefits and effect b) alternatives if any, available c) an outline of the substantial risks : and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.”
13.

The above facts and the record brought before this Forum substantiate the allegations of the complainant that during the period he remained under treatment with opposite party No. 1, the opposite party No. 1 had not taken due care as required from a doctor of his repute so as to render satisfactory medical service to the complainant to save him from his sufferings as neither history sheet Ex. R-1 reveals that what kind of due care and caution the opposite party No. 1 has taken nor this has been reflected by opposite party No. 1in prescription slip Ex. C-2, he issued to the complainant. Ex. C-2 shows that the complainant continued to visit opposite party No. 1 from 12-04-2007, as advised, but opposite party No. 1 after discharging the complainant from his hospital on 14-04-2007 did not prepare any discharge summary nor he prepared any history sheet of the wound or the position of the wound as on 19-04-2007 and on subsequent dates, despite the fact that the complainant continued to visit opposite party No. 1 for treatment of his infected wound. It is an admitted fact that the complainant remained under exclusive treatment of opposite party No. 1 from 11-04-2007 to 27-04-2007 and the condition of his wound gone bad to worse and only of this reason, he had to consult Dr. Vijay Obed. at CMC, Ludhiana on 29-05-2007. As to why the treatment given by opposite party No. 1 to the complainant for a period of more than one month twenty days, remained ineffective and did not respond should have been mentioned by opposite party No. 1 when the complainant last visited his clinic.
14.

The Hon'ble Supreme Court has settled the law on the subject in case titled Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors 1009(2) CPC 402 (SC) wherein it has been held that :- “Once the complainant had discharged initial burden, it was incumbent upon hospital authorities to prove that they had done their duty without any negligence on their part which they have failed to do.”
15.

In the present case, no doubt that Dr. Vijay, Obed. Professor and Head Department of Plastic Surgery of Christain Medical College and Hospital, Ludhiana, has been examined by the complainant who has deposed about condition of the wound and treatment given to the complainant as per discharge summaries Ex. C-3, Ex. C-6 and Ex. C-9. He has admitted that complainant remained under his treatment from 14-07-2007 to 13-12-2008 and he was admitted and was subjected to surgery three times. He has further stated that this was done to manage wound and wound may be occurred due to injury. However, he cannot definitely say about previous management.
16.

It is a common phenomena among the doctors that they always refrain from making any comment as a professional brotherhood for the treatment given by their predecessor and successor and keeping this aspect of the view, the Hon'ble Supreme Court has recently made observations in Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and Others (Supra) that “A court is not bound by the evidence of experts which is to a large extent advisory in nature. The court must derive its own conclusion upon considering the opinion of experts, which may be adduced by both sides, cautiously, and upon taking into consideration the authorities on the point.”
17.

Taking into consideration the facts, circumstances and position of law, as has been referred to herein above, we are of the considered view that opposite party No. 1 except denying that he was negligent or careless in making management of the wound of the complainant and that a false case has been filed against him, has produced nothing on record to prove the said facts. However, the evidence as has been discussed herein above, speaks volumes of the fact that opposite party No. 1 while managing wound of the complainant took the professional obligation in a most casual manner as well as he failed to give details not only on the prescription slip but also on the history sheet, managed and prepared regularly in the Hospitals.
18.

In view of the above discussion, we accept the complaint and direct opposite party No. 1 to pay to the complainant an amount of Rs. 4,00,000/- ( Rs. 50,000/- Travel & Incidental expenses + Rs. 1,50,000/- for medicines + Rs. 1,00,000/- for tests and operations + Rs. 50,000/- on account of loss of work etc., and earning for one year + Rs. 50,000/- for pains and sufferings = Rs. 4,00,000/-). The opposite party No.1 is also directed to pay the complainant an amount of Rs. 10,000/- as litigation expenses.

The compliance of this order be made within 45 days from the date of receipt of copy of this order.

However, opposite party No. 1 may got the aforesaid amount of compensation indemnified from opposite party No. 2 subject to its liability.

The copy of this order be sent to the parties concerned free of costs and the file be indexed and consigned.

P