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Thread: New India Assurance

  1. #151
    adv.singh is offline Senior Member
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    Default New India Assurance

    omplaint No.137/09.06.2009

    Decided on : 18.11.2009
    Sh.Amandeep Singh S/o Sh.Hardev Singh, Village Jhunir, Dhaliwal Patti, Tehsil Sardulgarh, District Mansa.

    ..... Complainant.
    VERSUS


    1. The Branch Manager, The New India Assurance Company Limited,

    Main Bazar, Mahantpur, 174315 (HP)


    2. The Branch Manager, The New India Assurance Company Limited,

    Mansa.


    .....Opposite Parties.


    Complaint under Section 12 of the

    Consumer Protection Act, 1986.

    .....


    Present: Sh.Omkar Mittal, Advocate counsel for the complainant.

    Sh.P.K.Arora, Advocate counsel for the opposite parties.


    Quorum: Sh.P.S.Dhanoa, President.

    Sh.Sarat Chander, Member.

    Smt.Neena Rani Gupta, Member.


    ORDER:-

    Sh.P.S. Dhanoa, President.


    This complaint has been filed, by Sh.Amandeep Singh son of Sh.Hardev Singh, a resident of village Jhunir, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act') against the New India Assurance Company Limited, for giving them direction, to

    Contd........2

    : 2 :


    make payment of claim, in the sum of Rs.1,00,000/-, alongwith interest, at the rate of 18 percent per annum, from the date of accident, till date of payment and for payment of compensation, in the sum of Rs.50,000/-, for mental and physical harassment and costs of filing of the complaint, in the sum of Rs.5,500/-. Briefly stated, the case of the complainant may be described as under:-

    2. That he purchased TATA Indigo-LX bearing registration No. PB-05M/5607 of 2005 Model from M/s Aggarwal Electric Company, Ferozepur. The vehicle purchased by the complainant, had been insured, with the OP No.1, vide cover note No.167055, for the period 26.12.2007 to 25.12.2008. The complainant got the ownership of the vehicle, transferred in his name, in terms of which, all rights in the same, vest in him and he is consumer under the opposite parties, qua the insurance cover secured for the vehicle, purchased by him. After purchase of the said vehicle, the complainant, sent a photocopy of the affidavit, given by the previous owner, to the official posted, in the office of the OP No.1, for substituting his name, as insured under the insurance policy issued for his vehicle. The vehicle of the complainant, met with an accident, on 20.12.2008, about which he conveyed intimation, to the opposite parties, forthwith. The OP No.2 recorded the intimation, in the name of the vender of the vehicle i.e. M/s Aggarwal Elelctric Company, instead of the complainant, but as he asked him the reason for the same, he was informed, by him that vehicle is still in the ownership of the vender, as per record maintained in his office. However, the officials posted in his office asked the complainant, to seek quotations, for repair of the vehicle and to get it repaired, at his own costs with the assurance, that his claim, would be paid, by the opposite parties subsequently. As per the assurance given by him, the complainant got his

    Contd........3

    : 3 :


    vehicle repaired and paid a sum of Rs.1,00,000/- and he lodged the claim in the office of the OP No.2, but he has failed, to release the amount of claim. He has also submitted the requisite documents, including the bill and other relevant documents, as such, there is deficiency in service on the part of the opposite party, because of which the complainant, has been subjected, to mental and physical harassment and has incurred avoidable expenditure, in filing of the instant complaint. Hence this complaint.

    3. On being put to notice, Opposite parties filed written version, resisting the complaint, taking preliminary objections; that complainant, is not a consumer, within the ambit of its definition, given in the Act, as insurance cover for his vehicle, has been secured, by M/s Aggarwal Electric Company, through its proprietor Sh..Kapil Aggarwal, as such, complainant, has no insurable interest, in the vehicle; that he has no locus standi and cause of action to file the instant complaint; that there is no deficiency in service on the part of the opposite parties, as vehicle purchased by him, was earlier transferred in the name of one Robin Verma, as evident from the copies of entries made in the registration certificate supplied by him and even the said transferee, did not convey any intimation or deposited any transfer fees, as required by the provisions of the Motor Vehicle Act; that the claim , has been repudiated, as per rules, in existence and insured, has not submitted the estimates or the bills, to the loss assessor, appointed by the opposite parties; that complicated questions of law and facts, are involved, as controversy needs leading of elaborate evidence by the parties for adjudication of controversy, as such, it can be properly adjudicated, by the civil court and not in summary manner by this Forum; that complaint is bad for non joinder of necessary parties, as insured and registered owner of the vehicle

    Contd........4

    : 4 :


    have not been impleaded, as party and that complaint being false and fictitious, is liable to be dismissed, with costs. On merits, it is reiterated, that complainant, is not registered owner of the vehicle, in the record maintained, in the office of the opposite parties, as such, he is not entitled, to invoke the jurisdiction of this Forum. It is also contended that complainant did not convey any intimation about transfer of the owner of the vehicle, but he has concocted false version and projected the same in the complaint. It is averred that there is no privity of contract between the opposite parties and the complainant, qua the insurance policy, issued for the vehicle. However, it is admitted that insurance cover note was issued at Mahantpur, by the OP No.1, at the instance of M/s Aggarwal Electric Company, who paid the premium for the same. Rest of the averments made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.

    4. On being called upon by this Forum, to do so, the counsel for the complainant tendered his affidavit, and copies of documents Ext.C-1 to C-17 before his counsel closed the evidence. On the other hand, learned counsel for the opposite parties, tendered in evidence affidavit of Sh. P.K.Jain, Sr. Divisional Manager and copies of documents Ext.OP-1 to OP-6 and closed the evidence.

    5. We have heard the learned counsel for the parties and gone through the oral and documentary evidence, adduced on record, by them, carefully, with their kind assistance.

    6. At the outset, learned counsel for the complainant Sh. Omkar Singh Mittal, Advocate, has reiterated the allegations made in the complaint and has argued, that repudiation of the claim, of the complainant, by the opposite parties, is not justified on the ground that

    Contd........5

    : 5 :


    complainant has insurable interest in the vehicle, because on transfer of the vehicle, insurance cover, is deemed to have been automatically transferred. In support of his contentions, learned counsel has placed reliance upon 2009(II) CPJ 213 Kulwant Singh versus United India Insurance Co. Ltd & another wherein it has been held by our own Hon'ble Commission, that as per the India Motor Tariff Regulation GR 10 and circular, insurance policy automatically changes in favour of the transferee of the vehicle, as such, the complainant, is entitled to claim insurance amount, as per the loss assessed by the surveyor appointed by the insurance company alongwith compensation and costs of filing of the complaint, even if, he has not conveyed the intimation, within the period stipulated in the Motor Vehicle Act. Learned counsel has urged that in view of the ratio of judgment delivered in this authority, by our own Hon'ble Commission, the complainant, has locus standi, to file the complaint and to seek amount of insurance claim, lodged by him, from the opposite parties, alongwith compensation, for mental and physical harassment and costs of filing of the instant complaint.

    7. On the other hand, Sh.P.K.Arora, Advocate, learned counsel for the opposite parties, has argued that it is mandatory under Section 103-A of the Motor Vehicle Act for the transferee of the vehicle, to convey the intimation, that he has become owner and to deposit the requisite fee by the complainant and his vender has failed, to convey such intimation about the transfer of the vehicle, to the opposite parties. Learned counsel has argued that as per entries made in the copy of the registration certificate, vehicle was registered, in the name of one Robin Verma, on the date of accident and even the said transferee, has not conveyed intimation about the transfer of the ownership, from the original owner, in whose name insurance policy

    Contd........6

    : 6 :


    has been issued. Learned counsel has also argued, that both the previous owners were necessary parties but complainant has not impeaded them and has become the owner of the vehicle, after the date of expiry of the insurance policy, as mentioned in the registration certificate, as such, he has neither locus standi, to file the complaint, nor any insurable interest, in the vehicle and complaint deserves to be dismissed with costs. In support of his arguments, learned counsel has placed reliance upon 2003(I) Apex Court Judgments, SC, 590 Rikhi Ram and another versus Smt.Sukhrania and others wherein it has been held by the Hon'ble Apex Court that in case of failure to intimate about the transfer of the vehicle or to give intimation, as required under Section 103-A of the Motor Vehicle ACt, 1939, liability of the insurer to pay the compensation to the third party does not cease. However, at page No.592 in paragraph No.6, it has been further held that so far as the transferee, who is third party in the contract, cannot get any personal benefit under the policy unless there is compliance of the provisions of the Act.

    8. Admittedly, the vehicle purchased by the complainant, had been insured, with the opposite parties, by the original owner, viz Sh.Kapil Aggarwal proprietor of M/s Aggarwal Electric Company, Ferozepur, for the period 26.12.2007 to 25.12.2008. As per entries made in the copy of the Registration Certificate, Ext.C-12, tendered in evidence by the complainant himself, vehicle involved, in the accident, was originally registered, in the name of the proprietor of above said firm, but it was transferred in the name of Sh.Robin Verma S/o Sh. Inderjit Verma, a resident of Haibowal Kalan, Ludhiana, on 31.3.2008, and in the name of the complainant, on 26.12.2008, as evident from endorsements made by the offices of the District Transport Office, Ferozepur, Registration Authority,

    Contd........7

    : 7 :


    Ludhiana and District Transport Officer, Mansa. As stated in earlier part of the order, the policy secured by the original owner, has expired on 25.12.2008, i.e. a day before the complainant, became the owner of the vehicle. The complainant has neither disclosed the date of purchase of the vehicle, nor he has produced, on record any document executed by the previous owner in his name. In the given circumstances, we are of the opinion, that complainant, has neither any locus standi, to file the complaint, nor he had any insurable interest, on the date he became the owner of the vehicle. There is no dispute as to the ratio of judgment delivered in the authority relied upon by the learned counsel for the complainant, but in the peculiar facts and circumstances of the case, they are not applicable to the facts of the instant case.

    9. The complainant has tendered in evidence copies of notices dated 24.12.2008 Ext.C-6 and C-8, bills Ext.C-13 to C-17 issued by the various firms, for purchase of material, for the vehicle and copy of estimate Ext.C-7, issued by M/s Baby Denting and Painting Motor Works, Mansa, but on the basis of these documents and in the face of the entry made in the office of the District Transport Office, Mansa, he cannot be stated to have become owner of the vehicle, during the validity period of the insurance policy. The initial onus was on the complainant, to prove that he has become the owner of the vehicle during the operation period of policy, but he has failed, to discharge the said onus, by producing any proof of transfer of ownership and even to disclose the date of purchase of the vehicle in the complaint, for the reasons best known to him. In the complaint and affidavit, Ext.C-1, the complainant, has stated that he has purchased the vehicle from M/s Aggarwal Electric Company, Ferozepur, whereas, as per entries, made by the Registration Authority, Ludhiana,

    Contd........8

    : 8 :


    vehicle was in the ownership of one Robin Verma, on the date of accident. As such, complainant has also misrepresented the facts.. As such, his conduct leaves much to be desired and opposite parties, in the given circumstances, were justified, in repudiating his claim. We are aso of the opinion that previous owners were necessary parties for passing of effective relief, but complainant has not bothered to implead them.

    10. In the light of our above discussion, we are constrained to hold that the complaint, is bound to fail and the complainant is not entitled, to payment of any amount, under the insurance policy, issued by the opposite parties or on account of compensation, for mental and physical harassment and costs of filing of the instant complaint.

    11. For the aforesaid reasons, we dismiss the complaint leaving the parties to bear their own costs.

    12. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record.

  2. #152
    adv.singh is offline Senior Member
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    Default

    CC.No.304 of 2007
    BETWEEN:
    Sri Gummadi Chandra Sekhar Rao,

    S/o Satyanarayana,

    R/o D.No.12-1912/14,

    Prakash Nagar, Narasaraopet,

    Guntur district. … Complainant

    and
    The Branch Manager,

    New India Assurance Company Limited,

    Branch Office,

    @@@@hi Chowk, Main Road,

    Narasaraopet, Guntur district. …Opposite Party


    This complaint is coming up before us for hearing on 04.11.2009 Sri B. Sivaprasad, advocate for complainant and of Sri G. Srinivasu, Advocate for opposite party are having on record, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

    O R D E R

    Per Sri T. Anjaneyulu, President:- This complaint is filed by the complainant against the opposite party for payment of Rs.2,50,000/- towards damages, interest thereon and compensation of Rs.10,000/- apart from legal expenses.

    The brief facts of the case are that the complainant is owner of lorry bearing No.AP07 W 5028 and the same was insured with opposite party under policy No.620903/31/04/02197, valid from 02-02-05 to 01-02-06. The complainant has paid a sum of Rs.37,775/- towards premium and the policy was issued giving insurance coverage to 3rd party and also own damage (vehicle damage).

    That on 7-10-05 at about 12.00 noon, the above said lorry was proceeding towards Thammarajupalli Ghat after crossing Kurnool with a load of iron coils from Baroda, Gujarath State to Ranipet, Tamilnadu State, another lorry came in opposite direction and dashed the lorry of complainant. As a result, the complainant’s lorry was badly damaged in the said accident. The matter is reported to Orkaval police station. The lorry was badly damaged and complainant sustained more than 2.5 laks loss. He has informed the same to opposite party and requested to settle the claim. Spot survey was done by Sri M. Kalimulla, Surveyor, Kurnool and M/s. Vijaya Durga Auto Mechanical and Engineering Works, Autonagar, Vijayawada. They have assessed the damage and estimated to a tune of Rs.1,98,917/-. The complainant has submitted all relevant papers to the opposite party and requested to settle the claim. But opposite party did not settle the claim.

    Recently, the opposite party sent a letter dated 29-09-06 with all false and frivolous allegations stating that the complainant has not submitted required documents and closed the process on the following reason. As per version of the final surveyor, the complainant has not shown any interest in his claim and the vehicle is also not available for the final survey.

    The complainant humbly submits that it is absolutely false to say that he has not shown any interest in settlement of claim and he has not submitted relevant documents and that the vehicle is also not available. He has already submitted all the documents/papers as required by the opposite party and the vehicle is also available. The opposite party has been postponing the settlement on one pretext or the other. The complainant submits that he has been facing lot of problems, due to non settlement of claim by the opposite party. The lorry is kept idle for a longtime and thereby the complainant has deprived of income from the lorry. He is put to financial loss besides mental agony. Complainant also got issued a reply notice dated 26-10-06 to the letter issued by the opposite party. They received same and kept quite without settling the claim and not issued any reply. Hence, there is deficiency in service on the part of the opposite party. Under these circumstances, the complainant is compelled to file this complaint for appropriate reliefs.

    Opposite party filed its version in the following manner, it has denied all allegations made in the complaint and called upon complainant to prove all the allegations strictly. It is also alleged that the complaint is barred by limitation. However, it admitted that it has issued policy for the said vehicle covering period from 02-02-05 to 01-02-06.

    The opposite party further submits that immediately after receiving intimation regarding accident from the insured they got appointed Sri M.Karimulla as spot surveyor who has conducted spot survey and submitted his report. The complainant informed the spot surveyor that he would shift the vehicle to garage at Vijayawada. After receiving the report of spot surveyor, the opposite party appointed Sri V.Balaji, Licensed Surveyor to conduct final survey. The said licensed surveyor visited damaged vehicle at mechanic shed of M/s Vijaya Durga Auto Mechanical Works, Autonagar, Vijayawada and thoroughly verified the damaged vehicle and noticed the damages. Then immediately requested the repairer as well as insured to dismantle vehicle to further detailed inspection at earliest. After one week, surveyor contacted repairer and the insurer, but they have not dismantled the vehicle. Again after another 15 days the surveyor visited the garage, on that day also the vehicle was in as it is condition. The repairer informed the surveyor that the insured was not available for proceeding further steps. Then the surveyor requested the repairer to inform whenever the vehicle is dismantled. Though two months lapsed, there was no message. In the meantime the surveyor contacted the insurer over telephone, but his telephone was out of order. Then the surveyor had wrote one letter to the insured, but no response. Afterwards, the surveyor visited the garage and discussed the repairer, who in turn informed that the vehicle was ceased by its financiers and lifted the vehicle from the garage, even there after there was no response from the insured. Then the licensed surveyor assessed the loss on the basis of damages which he has sent at the time of inspection of vehicle in as it is condition. The net loss assessed by Sri V. Balaji, Licensed surveyor is Rs.53,705/-.

    It is denied that they have appointed one M/s Vijaya Durga Auto Mechanical Works, Autonagar, Vijayawada to assess damage and that they estimated the damage to a tune of Rs.1,98,917/- and submitted report to the opposite party. This opposite party is nothing to do with M/s Vijaya Durga Auto Mechanical Works. The insured himself shifted the vehicle for repairs. As per condition No.1 of the policy, the insured shall give all information and assistance as and when company required. But the insured has not submitted required documents and not co-operated and assisted the surveyor to conduct final survey, as the vehicle was not available for final survey. The insured has also to comply condition No.8 of the policy in giving true information.

    On receipt of final survey report of Sri V. Balaji, closed the claim of the insurer as he has not submitted relevant documents and has not shown any interest in the claim and as the vehicle is also not available for final survey and the same is informed to him by letter dated 29-09-06. Thus there is no deficiency of service on their part and they have rightly closed the claim. The insured vehicle is under hypothecation agreement with City Corps Finance (India). As such, the insured is not the owner of the vehicle and City Corps Finance (India) is the owner at the time of accident as per Endorsement IMT No.7 of the policy and as such the insurer has no locus standi to claim compensation for the damages. Therefore, it is prayed to dismiss the complaint.

    Both sides have filed their respective affidavits. On behalf of complainant Exs.A-1 to A-8 are marked and on behalf of opposite party Exs.B-1 to B-6 are marked.

    Now the points for determination are that,

    1. Whether the opposite party committed any deficiency of service in closing claim of the complainant and in non payment of estimated damages?

    2. Whether complainant is entitled for the amounts as sought for?

    POINT No. 1:- In this case coverage of insurance to the vehicle bearing No.AP07W 5028 is not in dispute, apart from involvement of vehicle in an accident that took place on 07-10-05. Thereafter, the vehicle was shifted to M/s Vijaya Durga Automobiles Mechanical and Engineering Works, Autonagar, Vijayawada for necessary repairs to the damaged vehicle. It is the claim of the opposite party that they appointed one Sri V. Balaji, Licensed Surveyor to conduct final survey at the said garage. The surveyor has requested the complainant for it’s dismantle to assess further loss if any, but the insured has not co-operated him despite waiting for sufficient time and giving intimation to both workshop people and the insured. Finally, the vehicle was lifted away from the said garage by its financiers as per information given by the garage people. Therefore, the surveyor assessed the net loss to a tune of Rs.53,705/- as it is in condition. The opposite party however denies that they appointed M/s Vijaya Durga Auto Mechanical Works, Autonagar, Vijayawada to assess the damage. Because of non co-operation of the insured and not keeping the vehicle available in workshop they have closed the claim. It is also alleged that as the vehicle is not hypothecated with City Corps Finance (India), complainant has no locus standi to file this complaint.

    The complainant has filed certificate of registration of the vehicle (vide Ex.A-1), copy of policy vide Ex.A-2 and certificate given by SI of Police, Orvakal Police Station this reads that “he visited the scene of offence and found the lorry b.no.AP 07W 5028 stationed at the scene. Due to hit by another lorry, cabin, steering, radiator, inter cooler were damaged. He also certified that the contents of the complaint are true and the damages noted are genuine. Since none sustained any injuries in the said accident, no case has been registered. The spot surveyor also gave receipt dated 08-10-05 for Rs.950/- for making spot survey (Ex.A4). The letter dated 29-09-06 issued by the opposite party (Ex.A-5) reads that ‘as per the version of the final surveyor, the complainant has not shown any interest in this regard and that he is also not available in the Garage for final survey and hence, the claim is closed as no claim’. On receipt of such letter the complainant got issued immediately legal notice on 26-10-06 making similar allegations as in the complaint. The opposite party also received and sent the acknowledgement vide Ex.A-7, but there was no further reply. The complainant also filed number of photos showing the damaged vehicle at the spot (scene of offence) and as well as its dismantled condition which are marked as Ex.A-8.

    The spot survey conducted by Sri M. Karimullah has reported cause of nature of accident and the details of damage vide his report Ex.B-2. Sri V.Balaji the final surveyor has submitted his report on 27-09-06 vide Ex.B-3. He too has noted the cause of occurrence, the description of damages, and assessment of loss to a tune of Rs.53,705/-. He has visited M/s Vijaya Durga Auto Mechanical Works, Autonagar, Vijayawada on 28-10-05 along with Divisional Manager. They have thoroughly verified the damaged vehicle and noticed damages. Thereafter they have asked the repairer as well as insurer to dismantle the vehicle for further detailed inspection. After one week he has again contacted the insurer and the repairer. They have not dismantled the vehicle. Again after another 15 days he has visited the garage and on that day also it was in the same condition. The repairer informed him that insurer was not available for taking further steps. At that time he is said to have been requested the repairer to inform whenever vehicle is dismantled. But there was no message even after two months. He also telephoned to the insurer, but it was found out of order and he is said to have written one letter but no response. Again he visited the garage and he was told that financier lifted away the vehicle from the garage. Further, from all the above aspects on his thorough inspection of the damaged vehicle in as it is condition, the damages were assessed after deducting depreciation salvage value including labour charges to a tune of Rs.53,705/-. The letter dated 14-02-06 addressed to the complainant is also enclosed along with the report Ex.B-4 in which he requested to dismantle of the vehicle and about his non co-operation. The certificate of registration under Ex.B-6 filed to show that the vehicle in question is hypothecated with City Corps Finance (I) Limited.

    Thus as seen from the above material on record, the claim process was closed on the ground that the vehicle was not dismantled to assess further loss and was not get it repaired though it was in the workshop for enough time and ultimately, it was taken away by the financier from garage. Therefore, the insurance company claims that they could not settle the claim as insurer did not co-operate with final surveyor in dismantling vehicle and did not submit relevant information as sought for, as such they have closed the file as ‘no claim’. During the course of arguments in this case the similar contentions raised by the learned counsel for the opposite party. The complainant counsel submitted that they have disputed the letter dated 29-09-06 issued by the opposite party and gave legal notice for which there was no reply from the opposite party. It is also submitted by the learned counsel for the complainant that his client got effected repairs and thereafter financier has taken away the vehicle from garage. In that context, the complainant was directed to produce proper evidence about effecting repairs to the vehicle and as to when the said vehicle was taken away by the financier from workshop. Despite giving these directions to the complainant he has not taken any steps to produce the bills issued by the garage in spite of the amount incurred for its repair nor any affidavit of the owner of the garage or its mechanic swearing to the facts that the complainant is in helpless condition as the vehicle was taken away by its financier for non payment of amount. In these circumstances, the Forum questioned the opposite party as to non payment of estimated damages by its surveyor as the vehicle was admittedly damaged to that extent. The learned counsel for the opposite party submitted that unless the vehicle is repaired by incurring expenditure the question of making good the loss and indemnification of the insurer does not arise. This appears to be true as per conditions of the policy, therefore, to that extent no deficiency in service on the part of the opposite party. In peculiar circumstances of the case facts, we dispose of this complaint in the following terms,

    1. If the complainant is interested in making claim to the damaged vehicle, either himself or his financier shall get it repaired or in case it is already repaired, to produce proper documents in support of the same and thereafter the insurance company shall process the claim and settle it accordingly.

    2. Each party shall bear their own costs.

    Dictated to steno typist, transcribed by her, corrected by me and pronounced in the open Forum dated this the 7th day of November, 2009.

  3. #153
    adv.singh is offline Senior Member
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    Default New India Assurance

    C.C.No.55/2008
    P. Ravi Kumar, S/o.Subrahmanyam,

    Hindu, Aged about 42 years,

    D.No.5/484, Upstairs, Usmansahebpet,

    Nellore. ..… Complainant

    Vs.
    Senior Branch Manager,

    New India Assurance Company Limited,

    Branch Office, Subedarpet,

    Nellore. ..…Opposite party.

    This complaint coming on 29-10-2009 before us for hearing in the presence of Sri S.P.S. Vijaya Saradhi, advocate for the complainant and Sri N. Kodanda Rami Reddy, advocate for the opposite party and having stood over for consideration till this day, this Forum made the following:

    ORDER

    (ORDER BY Sri.S. RAMAKRISHNA REDDY, PRESIDENT)



    This complaint is filed by the complainant under Section-12 of Consumer Protection Act seeking for direction to the opposite party to pay him Rs.95,883/- alongwith interest at 18% p.a. from 26-06-2007, Rs.50,000/- towards damages and Rs.5,000/- towards costs.



    2. The averments of the complaint in brief are as follows:



    The complainant is the owner of Mahindra Scorpio CRDE bearing registration No.AP 27 K 2556 and he got his vehicle insured with the opposite party and the policy was valid from 29-06-2006 to 28-06-2007. On 23-06-2007 the complainant was going from Kovur to Nellore and when he reached Kovur By-pass road at about 4-30 a.m. one vehicle was going in front of him and that vehicle suddenly turned right side as a result of which there was collusion between the vehicle of the complainant and that vehicle. The vehicle of the complainant was badly damaged in the accident. Immediately the complainant reported the matter to Kovur Police station and also the opposite party. He submitted the claim application to the opposite party on 27-06-2007 alongwith estimation for getting the vehicle repaired by Pioneer Auto Service, Ongole. He also produced the original bills, estimation was made for Rs.95,883/-. Basing on the report of their surveyor the opposite party sanctioned Rs.30,608/- and sent letter dated 19-11-2007 to that effect alongwith the voucher to the complainant. The complainant made representation and on that representation the opposite party settled the claim for Rs.42,967/- and intimated the same through the letter dated 01-03-2008. They also issued the voucher for Rs.42,967/-. The settlements made by the opposite party are not reasonable. The complainant is entitled to the entire amount of Rs.95,883/- which was spent by him for getting his vehicle repaired. The surveyor appointed by the opposite party was not competent to assess the damages. Therefore the report of the surveyor can not be taken into consideration, to settle the claim. Since the opposite party failed to pay the amount as per estimation, there is deficiency in their service. Hence the complaint.


    3. The opposite party filed the counter stating in brief as follows:

    They admitted the allegations with regard to the ownership of the vehicle, the insurance policy obtained for the vehicle, the accident and also the submission of the claim form. The opposite party denied the other allegations and stated that soon after receiving the intimation of the accident a spot surveyor was appointed by them and he inspected the accident spot and the vehicle and filed his report. Later another surveyor by name G. Ravi Kumar was appointed to assess the damages and file report and that surveyor inspected the vehicle and assessed damages at Rs.35,279/-. Reinspection was also made by P. Ramakrishna. Basing on the reports of the surveyors they settled the claim at Rs.30,608/- and to that effect voucher was also sent to the complainant for his signature. The complainant opined that the assessment was not in order and requested them to assess the loss afresh. Later they reassessed the loss or damages and settled the claim for Rs.42,967/- and to that effect a voucher was also sent to the complainant. The complainant did not accept that amount. They assessed the loss correctly and therefore there is no deficiency in their service and hence the complaint is liable to be dismissed.



    4. The points for consideration are:



    1) Whether there is deficiency in the service of the opposite party?

    2) Whether the complainant is entitled to the reliefs sought for?

    3) To what relief is the complainant entitled?



    5. The complainant filed his affidavit and produced the documents, which are marked as Exs.A1 to A5. The opposite party filed the affidavit of one C.J.R.J. Sastry, working as Divisional Manager and produced the documents which are marked as Exs.B1 to B6.



    6. POINT No.1 : The complainant claimed Rs.95,883/- on the basis of the estimation given by Pioneer Auto Service, Ongole which is marked as Ex.A2. Ex.A3 is the xerox copy of the receipt given by Pioneer Auto Services in the name of the complainant for Rs.87,802/- and also a bunch of the xerox copies of five bills given by Pioneer Auto Service in the name of the complainant. The opposite party settled the claim of the complainant for Rs.35,279/- on the basis of the report submitted by one G. Ravikumar, Surveyor / Loss Assessor appointed by them. Ex.B3 is the report submitted by the said G. Ravikumar. As the complainant refused to accept that amount, they asked the said Surveyor / Loss Assessor to reexamine his report. Thereafter he reexamined and assessed the loss at Rs.46,279/-. Ex.B6 is the report submitted by G. Ravikumar after reexamining the loss and labour charges. The opposite party settled the claim for Rs.46,279/- and intimated the same to the complainant. The complainant did not accept that amount also and approached this Forum. G. Ravikumar did not give reason for increasing the assessment of loss after reexamination. If his first assessment was correct there was no need for him to increase the amount after reexamination. In view of the increase in the assessment of loss and labour charges , we are of the view that his first assessment was not correct. In view of the inconsistency in the assessments made by G. Ravikumar we are not inclined to place any reliance on his reports. On the other hand the complainant produced the estimation, bills and also the receipt issued by the Pioneer Auto Service. As per the estimation the amount is Rs.95,883/-. As per the receipt the complainant paid Rs.87,802/- only. Therefore we are of the view that the complainant is entitled to claim the amount mentioned in the receipt which is marked as Ex.A3. The opposite party should have paid the amount mentioned in the receipt. Failure to pay the amount mentioned in the receipt amounts to deficiency in service. Hence we hold that there is deficiency in the service of the opposite party.



    7. POINT No.2: As already held in point No.1 the complainant is entitled to claim Rs.87,802/- only and not Rs.95,883/- as claimed by him. The complainant claimed Rs.50,000/- towards damages and Rs.5,000/- towards costs. Having regard to the facts and circumstances of the case, he is not entitled to claim either damages or costs. The complainant claimed interest at the rate of 18% p.a. from 26-06-2007. The rate of interest claimed by the complainant is excessive. In our view he is entitled to claim interest at the rate of 9% p.a. from the date of filing of this complaint. Hence we answer this point accordingly.


    8. TO WHAT RELIEF: IN THE RESULT, the complaint is partly allowed directing the opposite party to pay to the complainant Rs.87,802/- (Rupees eighty seven thousand eight hundred and two only) alongwith interest at 9% p.a. from the date of filing of this complaint i.e., 27-03-2008 within 30days from the date of communication of this order.

    Dictated to Stenographer, transcribed by her corrected and pronounced by us in the open Forum, this the 3rd day of November, 2009.

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    Default New India Assurance

    COMPLAINT NO.2021 OF 2009

    G.Kumar

    S/o Govindhan,

    R/at No.143, Hombegowda Nagar,

    Wilson Garden, 7th Cross,

    OPP Hosur Main Road,

    Bangalore – 560 027.

    …. Complainant.

    V/s

    The Manager,

    The New India Assurance Co. Ltd.,

    No.2, B, Unity Building, Anex,

    P Kalingrao Road, (Mission Road)

    Bangalore.

    …. Opposite Party

    -: ORDER:-


    This complaint is filed claiming Rs.8,10,000/- from the Opposite Party with interest at 15% Per Annum, on the following grounds:-

    2. The complainant G.Kumar is the owner of the TATA SUMO VICTA bearing registration No.KA-01/B-2996. The vehicle is insured with Opposite Party insurance company for the period from 17/11/2008 to 16/11/2009. The said vehicle was stolen from in front of Jain Temple, 7th Cross, Wilson Garden, Bangalore where the vehicle was stationed. At that time, the vehicle was in good condition. The complainant lodged complaint to police on 22/05/2009 and lodged claim with Opposite Party estimating the damages at Rs.3,10,000/-. The Opposite Party refused to accept the claim assigning untenable reasons. The complainant was using the vehicle for rental purpose. He lost the vehicle on 22/05/2009 and therefore now his earning is nil. He is not in a position to invest for new vehicle without his claim being settled. In the letter dated 25/06/2009 the Opposite Party has stated that the RC Book is in the name of previous owner of the vehicle, but the Opposite Party collected insurance premium and issued the policy in the name of the complainant. In the cover note the same vehicle number is mentioned. The reasons for refusing the claim are untenable and against the established principles of law. The repudiation is bad in law. Hence, the complaint.

    3. The notice sent to the Opposite Party insurance company returned with endorsement of “refusal”. Therefore, the service of notice is held sufficient. In support of the claim, the complainant has filed his affidavit and has produced copies of documents. We have heard the arguments of the learned counsel for the complainant.

    4 The points for consideration are:-

    1. Whether in the facts and circumstances of the case, the repudiation of the claim made by the complainant by the insurance company is justified?

    2. Whether the complainant entitled to the reliefs prayed for in the complaint?

    5. Our findings are:-

    Point No(1) : In the Affirmative

    Point No(2) : In the Negative, for

    the following:-
    -:REASONS:-

    6. From the copy of the insurance policy produced by the complainant along with the complaint, it is seen that the insurance policy is issued in the name of Mr.ANarayana. Therefore we are unable to accept the contention of the complainant that the insurance policy has been issued in his name as has been contended in Para-4 of the complaint. From the copy of the registration certificate pertaining to the vehicle in question, it is seen that in the first instance the vehicle was registered in the name of Mr.ANarayana w.e.f 29/04/2005 and subsequently the vehicle was transferred to the name of the complainant w.e.f. 24/11/2008. No doubt the insurance policy is issued for the period from 17/11/2008 tp 16/11/2008, but the said policy is issued in favour of Mr.A.Narayana, the previous owner of the vehicle. It is also endorsed on the insurance policy as under:-

    “ In case of change of ownership of vehicle, insurance certificate has to be transferred within 14 days from the date of transfer in R.C.Book”.

    Though the complainant purchased the vehicle on 24/11/008 from the previous owner, it appears no intimation was given to the insurance company to get the insurance certificate transferred to his name. From the copies of the police documents, it is seen that the complainant gave complaint to police on 22/05/2009 alleging theft of the vehicle between 12/05/2009 and 22/05/2009. When the complainant made claim with the insurance company, it addressed a letter dated 25/06/2009 to Mr.A.Narayana, the previous owner of the vehicle in whose name the insurance policy was issued. In this letter it is stated by the insurance company that the insurance policy stands in the name of Mr.A.Narayana, but the R.C. Book shows the name of the registered owner as G.Kumar w.e.f. 26/11/2008. As per the terms and conditions the transfer should have been effected in the policy within 14 days from the date of transfer in the RC Book and as there is no insurable interest on the vehicle, they are not liable to pay the claim and the same is treated as “NO CLAIM”. Thus, it is clear that the insurance policy stood in the name of Mr.ANarayana, but the claim was made by the complainant G.Kumar who had purchased the vehicle from A.Narayana but had failed to get the insurance certificate transferred to his name soon after transfer of the vehicle. Since G.Kumar is not the insured as on the date of theft of the vehicle, the insurance company rightly repudiated the claim made by him and as such we are unable to make out any deficiency in service on the part of Opposite Party in refusing the claim. In the result, we pass the following:- -:ORDER:-

    1. The complaint is DISMISSED. No order as to costs.

    2. Send a copy of this order to both parties free of costs, immediately.

    3. Pronounced in the Open Forum on this the 27th Day of NOVEMBER 2009.

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    Default New India Assurance

    C.C. Case No. 23 of 2009


    22nd December , 2009 .

    BEFORE :

    Sri P. K. Pattanaik , President ,

    AND

    Smt. Binodini Devi , Member .


    Name of the Parties .

    Sri Bijaya Kumar Sharma, aged about 50 years

    S/o Late Mohadev Sharma,

    At/P.O.:- Bhapur P.S: Fategarh

    Dist- Nayagarh.

    ---------------------- Complainant .

    -Vrs-

    1.

    Branch Manager,

    The New India Assurance Company Ltd.

    Ginni Bhawan(1st floor) Main Road, Khurda

    Dist:- Khurda.

    2. The Branch Manager, I.O.B, Bhapur Branch

    AT/PO : Bhapur P.S. Fategarh Dist. Nayagarh.

    3. Sri Benudhar Nayak(Insurance Agent)

    At- Samaghanapur P.O. Biruda Dist. Nayagarh.


    ---------------------- Opp. Parties .

    Counsel for the complainant - R.K.Sahoo, ( Advocate)

    Counsel for the O.Ps : - N.K.Sarangi ( Advocate ) for O.P.No.1

    K.C.Satapathy (Advocate) for O.P.No.2

    Date of appearance of O.Ps : - 17-07-2009

    Date of hearing : - 24-11-2009

    Date of Judgment : - 22-12-2009


    J U D G M E N T



    Binodini Devi, Member :-


    Deficiency in service in the grievance of the complainant against the O.Ps.

    The complainant has alleged in his complaint u/s 12 of C.P.Act that he had availed a loan from Indian Overseas Bank, Bhapur Branch by hypothecation of his shop and received Rs.50,000/-(Rupees fifty thousand)only and the A/c No. was SL/GEN/310800305. According to the advice of the Bank Manager, the complainant insured the shop through agent O.P.No.3 and the O.P.No.3 deposited the premium amounting to Rs.435.00 in the New India Assurance Company Ltd dt. 3.11.08 as the shop keepers Insurance scheme . The complainant was also given the policy band bearing No.551001/ 48/ 08/ 34/ 00000802 on the same date i.e. 3.11.08 from the New India Assurance company. The complainant is an expert cushion mistri. On dt. 26.1.09 dt about 2 A.M the shop was burnt by an accident due to electrical short circuit. As per his version more than seventy thousand articles including the policy bond and other relevant documents were brunt. The matter was informed to the fire station and also to the Police station , Fategarh. The I.O.B. Branch Manager informed the matter to the Assurance company , Khurda. The company surveyor/estimater come to the spot and verified the documents like purchasing report, other necessary papers, policy bond , original money receipts etc. The complainant was unable to produce the above said documents to the surveyor at the time of supervision. The complainant is a non- oriya and uneducated person. According to their instructions the complainant collected duplicate documents and submitted before the company worth Rs.68,096/-. The Assurance company did not give emphasis on it. They settled the claim at Rs.8,750/-. The complainant did not receive such amount as it was very low.The complainant become harassed at such type of attitude of the O. Ps.

    The complainant has filed the case with a prayer to give direction to the O.P.No.1 to give Rs.60,000/- to give direction to O.P.No.2 not to demand the loan amount, to give Rs.20,000/- towards mental agony to give Rs.10000/- for litigation expense and other relief or reliefs for which the complainant is entitled.

    The complainant has filed some xerox copies of documents which as marked as Annexure-1 to Annexure-9

    The complaint is supported by affidavit.

    The complainant has examined himself as PW -1 and another Premananda Panda examined as P.W- 2 in support his case. On the other hand the O.ps have entered in to appearance and filed their respective written version separately.

    O.P.No.3 in his written version has averred that he is only an agent and his duty is to collect premium from the complainant land deposited it with O.P.No.1. He agreed to have taken the premium from the complainant and deposited the same with the company i.e. O.P.No.1.

    O .P. No. 2 in his written has challenged the maintainability of the dispute. Again averred that he has not committed any deficiency of service against the complainant and there is no cause of action against the O.p.No.2. The O.P.No.2 has sanctioned loan of Rs.50,000/- as per loan agreement. In view of the aforesaid facts and circumstances the dispute against him is to be dismissed.

    O.P.No.1 in his written version has challenged the maintainability

    of the dispute and denies the allegations in the complaint and above all challenged the authority of the petitioner. O.P. No.1 has averred that there is no deficiency made by him to the complainant . He also denied the premium given to him by the complainant. The surveyor had come in right time so there was no deficiency caused to the complainant. Due to non production of the documents the surveyor assessed the loss of Rs.25,000/- which was settled an nonstandard basis i. e. 75% of total loss.

    O.Ps have filed their versions supported by affidavit.

    O.P No.1 has filed certain documents which are marked as Annexure-A, B and C.

    1) Letter to the surveyor No.548/09 to the Branch Manager , N. I. A. company Ltd on 4.5.09 is Annexure-A

    2.

    Settlement of claim calculation sheet is Annexure-B
    3.

    Standard fire claim Tarift note as per the Tarift advisory committee is Annexure-C

    In the light of above pleadings of the parties the following issues need be adjudicated for a definite decision of the case.

    F I N D I N G S

    1. Whether the case is maintainable ?

    2. Whether the O.Ps are guilty in deficiency in service ?


    I S S U E No.1

    O.Ps have challenged the maintainability of the dispute. It is no doubt that complainant is a bona fide consumer. He resides within the territorial jurisdiction of this Forum. The shop of the complainant was burnt on dt. 26.1.2009 at about 2 A.M. night by the Electric short circuit . The shop was insured dt. 3.11.08 validation of the period is mention ed from dt. 3.11.08 to the night of 2.11.09 so cause of action was within the validation period. The case has been filed dt. 5.6.09, so it is not barred by limitation. From the above facts, it is clear that the case is maintainable.

    I S S U E No.2

    Section (2) (1) (g) of the C.P ACT defines “Deficiency” as under :-

    “Deficiency means any fault,imperfection,shortcoming or inadequacy

    in the quality,nature and manner of performance which is required to be

    maintained by or under any law for the time being in force or has been

    undertaken to be performed by a person in pursuance of contract or

    otherwise in relation to any service ”.

    The O.P.No.1 has admitted that the house was burnt by fire. O.P.No.1 has deputed Surveyor on the very day i.e 27.1.09 receiving telephone message from Branch Manager of I.O.B, Bhapur . The complainant has not produced any original document regarding the purchase, sale, police report, fire brigade certificate of loss and sale tax return and income tax return etc. It was not possible on the part of complainant to produce those above mentioned reports at the spot on 27.1.09 as his mental condition was not normal. He wrote an application to the Manager on dt. 30.1.09 which is marked as Annexure-1.

    Regarding identification of the local Sarapanch has also given an certificate which is marked as Annexure-2.(Xerox)

    Annexure-3 is the shop keeper's Insurance bond (Xerox). It is clear from the bond that the shop was duly insured.

    Annexure-4 is the xerox copy of settlement intimation voucher of the Assurance company.

    Annexure-5 is the xerox copy of acceptance note.

    Annexure-6 is the xerox copy of the certificate of Fire Officer, Bhapur.

    Annexure-7 is the xerox copy of the station diary entry dt.26.1.09 of Fategarh Police station.

    Annexure-8 is e xerox copy of Electric bill. Annexure-9 is the xerox copy of the I.O.B money receipt dt. 7.6.2009.

    The complainant has examined two witness ;including himself an his behalf. P.W.2 is the close neighbor of the complainant. They have stated that a single paper could not collected from the fire.

    The surveyor demanded documents from the complainant. Due to fire he could not collect the documents readily . The surveyor assessed the loss at Rs.25,000/- which was settled on nonstandard basis i.e. 75% total loss which comes to Rs.18,750/- minus the policy excess Rs.10000/- as per tariff advisory committee which comes to Rs.8,750/- settled in favour of the insured and accordingly loss voucher was sent, but it was not received by the insured.

    The surveyor did not supervise the spot properly. The insured has nothing to produce. So it is clear that the O.P.No.1 is guilty of deficiency in service. However the complainant has submitted relevant documents and papers subsequently as at the time of fire, has mental condition was not normal and further those were to be collected from different officials.

    Hence it is ordered .

    O R D E R

    The dispute is dismissed against O.P.No.2 and No.3 as there not liable for the grievance of the complainant. The O.P.No.1 is directed to pay Rs.50, 000/- ( Rupees fifty thousand )only to the complainant as insured amount and interest at the rate of 12% per annum from the date of arson. He is further directed to pay Rs.500 /-( five hundred )only as litigation cost. The order shall be carried out within two months from the date of order.

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    Default New India Assurance

    Consumer Complaint No.12 of 2009.
    Smt. Rajlakshmi Dutta, w/o Late Buddhadeb Dutta, Sikharia Para, P.O. + P.S. + Dist. Bankura.

    ……………….Complainant.

    V e r s u s

    Branch Manager, The New India Assurance Co. Ltd., Prabhat Villa,

    Nutanchati, P.O. + P.S. + Dist. Bankura.

    ……….…….Opposite Party.

    Before:-

    SHRI T. BASU PRESIDENT.

    SMT. A. AGNIHOTRI MEMBER.

    SHRI S. L. SUKUL MEMBER.


    For the Complainant : Mr. Tapan Dey, Advocate.

    For the Opp. Parties : Mr. Shyamal Chatterjee, Advocate.

    Judgement, Dated : 04.12.2009.

    Present case was registered on the basis of a petition of complaint filed by one Rajlakhsmi Dutta, a resident of Sikharia Para, Bankura against the New India Assurance Co. Ltd. with an allegation of deficiency in service.

    Case of the Complainant, as made out in the petition of complaint, is briefly as follows :-

    Buddhadeb Dutta, the husband of the Complainant, purchased one Tata Sumo car through Hire-purchase system from Tata Finance Ltd. vide the agreement dated 28.09.2003. The vehicle was registered at Regional Transport Office, Asansol and the Registration Number of the vehicle was WB-38M-2309. The said vehicle was covered under Insurance made with O.P. – New India Assurance Co. Ltd.. Buddhadeb Dutta died on 30.04.2006. As the Hire-purchase loan was not repaid, the Complainant renewed the Insurance Policy in her husband’s name on paying premium whereupon the O.P. issued Certificate of Insurance vide Policy no.512106/31/07/00002047 for Rs.2,15,000/- only. The Policy was valid from 06.10.2007 to 05.10.2008.



    On 30.12.2007 at about 11.15 A.M. the aforesaid vehicle, while proceeding towards Kolkata, met with an accident near Panagarh Bazar. The vehicle overturned at the road side and got badly damaged. Matter was reported to the O.P. by the Complainant who claimed Rs.1,15,000/- only being compensation for damage.

    The O.P., through it’s Surveyor and Loss Assessor, assessed the extent of damage at Rs.39,000/- only. Complainant did not agree to accept the same.



    On 30.05.2008 Tata Motors Ltd. issued a contract termination notice to the O.P. intimating that Hire-purchase endorsement in respect of the Tata Sumo car may be “cancelled” as all dues were paid. Thereafter, on prayer of the Complainant, her name was registered as owner of the said vehicle in the office of the R.T.O., Asansol. O.P., vide letter dated 26.03.2009, rejected the claim of the Complainant “on the ground of non-disclosure of material facts at the time of taking the Insurance Policy”. Complainant, being prejudiced, has prayed for declaration that the O.P.’s regret letter dated 26.03.2009 was illegal. He has also prayed for a direction to the O.P. for payment of Rs.1,15,000/- only being

    compensation for damage of the vehicle. She has further prayed for litigation cost and compensation for mental agony.


    The sole O.P. entered appearance in the case and contested the same by filing Written Version. Case of the O.P., in short, is that the Policy of the vehicle was renewed long after the death of Buddhadeb Dutta, the owner. Petitioner did not apply to the concerned R.T.A. for transfer of ownership of the vehicle. Notice for termination of contract is a matter between the petitioner and Tata Motors Ltd. and not binding upon the present O.P.. Having no merit the O.P. prays for dismissal of the case and that too with cost.



    The main points for consideration are whether there was any deficiency in service from the side of the O.P. and (2) Whether the petitioner is entitled to get relief and if so, to what extent.



    Decision with reasons

    To substantiate their respective cases the parties did not prefer adducing verbal evidence – they relied upon the documentary evidence only. Fact of death of Buddhadeb Dutta is admitted by the O.P.. It is also admitted that the vehicle met with an accident and consequently the vehicle was damaged. It is further admitted that the vehicle was covered under Insurance made with the O.P., the New India Assurance Co. Ltd.. Admitted facts are not required to be proved as we all know, although it was submitted before us at the time of argument from the side of the O.P. that neither any F.I.R. nor any G.D. entry was made in connection with the accident. It was also argued that fact of death of the owner of the vehicle Buddhadeb Dutta was reported to the O.P. long after. However, in view of the admitted position, these points do not carry much sense as we understand.



    It is not denied that on getting the claim application from the petitioner, the service of a Surveyor and Loss Assessor was engaged by the O.P. Co. to assess the extent of damage in terms of money. Accordingly, the assessment was made by the Surveyor and Loss Assessor and loss suffered by the petitioner was assessed at Rs.39,000/- only as against the claim of the petitioner to the tune of Rs.1,15,000/- only.



    We refer to the letter of the O.P. dated 26.03.209, addressed to the petitioner, whereby her claim was repudiated on the ground of “non-disclosure of material facts at the time of taking the Insurance Policy”. Surprisingly, over this vital point the O.P. was absolutely silent in the Written Version. Even at the time of canvassing his case before us, the O.P. considered it proper not to take this plea and the letter was not even referred to. Instead, as we already indicated earlier, the extent of damage was assessed at Rs.39.000/- only by the O.P. Co.. However, in absence of any evidence as to how the material facts were suppressed by the Complainant, we cannot attach any importance to the letter of the O.P.. The O.P.’s plea, therefore, appears to be arbitrary and whimsical. The onus to establish and prove the contents of the letter was wholly upon the O.P. and none else. O.P. failed to discharge this obligation.



    Now, let us come to the pivotal question involved in the case. The question relates to quantum of money being compensation for loss and injury suffered by the Complainant on account of a road accident in which her car was involved. It is presumed that the O.P. was agreeable to make payment of Rs.39,000/- only, as was assessed by the Surveyor and Loss Assessor. On the other hand, the Petitioner claimed Rs.1,15,000/- only. Photocopies of a few vouchers are there in the record. Vouchers indicate that the amount of money spent by the Petitioner for getting her vehicle

    repaired. We have carefully perused the copies of all the vouchers and to our mind it appears to be a bit inflated. So, we propose to reduce the figure to certain extent and we make our own assessment at Rs.75,000/- only. Besides, we suggest to grant Rs.10,000/- only in favour of the Petitioner being compensation for mental agony suffered by her. Thus we conclude by making balance between the parties.



    We are sure about the status of the Petitioner as a consumer as per the definition of the word laid down under section 2(i)(d) of the Consumer Protection Act. We are also sure that the instant case was filed within the period of limitation as envisaged under section 24(A) of the Consumer Protection Act, 1986.



    Case of the Petitioner succeeds. Court fee paid by the petitioner is found to be correct. Hence, it is



    Ordered

    that the present case is allowed in part on contest. The Petitioner / Complainant is entitled to get Rs.75,000/- (seventy-five thousand) only being compensation for repair of damage of her car bearing no. WB-38M-2309 under Insurance Policy no. 512106/31/07/00002047. Complainant is further entitled to get Rs.10,000/- (ten thousand) only for mental agony suffered by her.

    The O.P., New India Assurance Co. Ltd., is to make payment of Rs.85,000/- (eighty-five thousand) only to the Complainant / Petitioner Rajlakhsmi Dutta within sixty days from the date of this order failing which interest @ Rs.6% p.a. thereupon shall run from the date of this order till the date of realization of money.

    Parties to bear respective litigation costs.

    Copies of this Judgment and order be supplied to the parties free of cost.

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    Default New India Assurance

    CONSUMER CASE NO. : 52/S/2009 DATED : 31.12.2009.

    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.

    MEMBER : SMT. PRATITI BHATTACHARJEE

    &

    SRI ASIT RANJAN DAS.

    COMPLAINANT : SMT SUKLA ROY,

    W/O Late Bisweswar Roy,

    Aged about 30 years, resident of Subhas Pally,

    N. S. Road, P.O. & P.S.- Siliguri, Dist.- Darjeeling and

    now at C/O BISWESWAR STORES,

    E/61 (R) Bidhan Market, P.O. & P.S.- Siliguri,

    Dist.- Darjeeling


    O.Ps. 1) : THE NEW INDIA INSURANCE COMPANY,

    Malhotra Tower, Hill Cart Road, Siliguri,

    Dist. – Darjeeling – 734 401.



    2) : THE MANAGER, Of

    The New India Insurance Company,

    Malhotra Tower, Hill Cart Road, Siliguri,

    Dist. – Darjeeling – 734 401.



    3) : THE GOLDEN TRUST FINANCIAL SERVICES,

    Burdwan Road, Near Howrah Petrol Pump &

    Jalpaiguri Bus Stand, Siliguri, Dist.- Darjeeling.



    4) : THE MANAGER OF

    The Golden Trust Financial Services,

    Burdwan Road, Near Howrah Petrol Pump &

    Jalpaiguri Bus Stand, Siliguri, Dist.- Darjeeling

    FOR THE COMPLAINANT : Sri Phalguni Chatterjee, Advocate.

    FOR THE OPs No. 1 & 2 : Sri Kanak Lal Kundu, Advocate.

    FOR THE OPs No. 3 & 4 : Sri Nilay Chakraborty, Advocate.

    J U D G E M E N T

    This is a case under Consumer Protection Act, 1986 for realization of insured sum together with interest and compensation.

    Contd…..P/2

    -:2:-



    The case of the complainant ruins as follows :-

    That the complainant is a married wife of Late Bisweswar Roy who was a businessman running a business under name and style as Bisweswar Stores at E/61 (R), Bidhan Market, Siliguri. That the husband of the petitioner insured himself under the Janata Personal Accident Insurance Policy in the New India Assurance Company Ltd., through Golden Trust Financial Services on 23.03.2002 being Policy No. (S) 512301/47/01/02188 for a sum of Rs.4,00,000/-valid up to 22.03.09 (Midnight).

    That the husband of the complainant expired in road accident on 12.05.08 which was informed to the OPs No. 3 & 4 on 31.07.2008. The complainant also furnished al relevant documents to the OPs No.3 & 4 who accordingly forwarded those documents to the OP No.1 & 2 on 05.01.2008. The complainant visited to the Office of the OPs and requested to consider her claim under the policy but the OPs did not pay any heed. So, the complainant served a legal notice to the OPs on 28.02.09 and despite service of notice they did not care to disburse the insured sum under the policy. Hence this case supported by affidavit.

    OPs No.3 & 4/Golden Trust Financial Services contested the case by putting W/V denying each and every allegation as made therein with a specific defence that Bisweswar Roy since deceased was a Field Worker of OP No.3 & 4 who got Janata Personal Accident Insurance Policy for Rs.4,00,000/- under the New India Assurance Company Ltd. for 23.03.02 to 22.03.09 under the Group Insurance Scheme being facilitated by the said OPs No.3 & 4. A MOU was executed on 30.12.1998 by and between the OP No.1 & 3 allowing to extend Janata Personal Accident Policy cover to their field worker and their family members under the Group Insurance Scheme.

    Under the MOU OP No.3 used to collect premium from the proposer and to remit the same to OP No.1 by a consolidated cheque with a list of insured persons apart from this there had been no other liability to be borne by the OP No.3. The OP No.2 & 3 under the MOU shall not have any liability with regard to the settlement of claim and the OP/New India Assurance Company Ltd. will be solely and directly responsible in case of any claim contingent upon death, permanent disability and injury of the insured persons subject to terms, conditions and warranty. The OP No.3 & 4 always stand by the side of the insured persons and on receiving any proposal form their duty is to submit before the Insurance Company for their appropriate decision. Accordingly, the OP No.3 & 4 forwarded the prescribed form to the OP No.1 for early settlement of the claim on 05.08.08. Even letter of reminders was also issued for settlement of the claim as made by the complainant.



    Contd…..P/3

    -:3:-



    It is further alleged that they have no latches or deficiency of service on their part but it rests upon the OP No.1 & 2.

    The instant W/V was filed supported by affidavit.

    The New India Assurance Company Ltd. contested the case by putting W/V denying each and every allegation as made therein with a specific defence that the case is not maintainable.

    It is specifically pleaded that the case is bad for mis-joinder or non-joinder of necessary parties.

    The owner of the truck bearing No.WB-59/0690 is a necessary party.

    It is specifically pleaded that the complainant did not submit her claim to the OP within one calendar month after the event of the alleged incident. The mandatory provision has not been complied with by the complainant and did not furnish the particulars of her case within the prescribed period for which the claim is not entertainable in law. The complainant is not entitled to get the insured sum or any amount towards compensation for the economical crisis. It is further alleged that the terms of the contract between the insured and the insurer and their relationship was created by an Insurance Contract. The complainant being beneficiary of the policy was aware of the terms and condition as printed in the prescribed form. Even then the claim has not been made within one calendar month for which mandatory provision has not been complied with. As the terms and conditions have not been fulfilled the OP No.1 & 2 have no liability to pay any claim as claimed for and as such the case is liable to be dismissed with cost.

    The W.V. has been submitted supported by affidavit.

    Upon consideration of pleadings of the respective parties the following issues are framed for adjudication :-

    1) Is the case maintainable ?

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

    3) Is the complainant entitled to get any compensation as prayed for ?

    4) To what other relief/reliefs as sought for ?

    Points No.1 & 4.

    All these points are taken up together as they are interlinked and also for convenience.

    The Ld. Advocate on behalf of the OP No.1 & 2 advanced argument that the terms and conditions as embodied in the policy in question has not been complied with. Under


    Contd…..P/4

    -:4:-

    the contract in between the insured and the insurer claim intimation is to be lodged within one calendar month after the event. Even no explanation or reason has been assigned for cause of delay. When the mandatory provision has not been complied with the claim is not entertainable. The Insurance Company could not get any opportunity to examine the dead to satisfy itself through IRDA Licensed Investigator about the occurrence or cause of death. When no notice was issued within one calendar month to the Insurance Company the OP No.1 & 2 the relief can not lie against the Insurance Company/the OP No.1 & 2. In support of their contention reliance has been placed upon 1996 CPJ Vol.-III 514; 2003 CPJ Vol.-I 442 and 2004 CPJ Vol.-II 177.

    In 1996 CPJ 514 in the case of M/S Firm Fresh Foods Pvt. Ltd. Vs Branch Manager, Oriental Insurance Co. Ltd. it has been held that the case has been determined on the affidavit of the Insurance Company exclusively but the main document which is material and relevant for determining the point of controversy between the parties as to whether the risk of accident is also covered under the policy is the terms of the contract between the insured and the insurer. The parties initially are governed by the terms of the contract entered into by the insured with the insurer and the payment of premium is secondary and non-appreciation of this aspect of the matter has led to the error.

    In the case of Premlal N. Ratan Vs New India Assurance Company Ltd. reported in 2003 Vol.-I CPJ 442 the Hon’ble State Commission, Maharashtra held that after alleged accident complainant did not report to the Insurance Company immediately or to the Police and no explanation is offered for the same. Thereby the Company can not be held to be deficient. Insurance Company is a public body and deals with the monies of the public and it has to be more cautious and circumspect in the scrutiny of the claim made to it in the matters like this and exercise of such caution and pre-caution would certainly can not be construed as unreasonable or unfair so as to constitute deficiency.

    In the case of P. Pravabati Vs National Insurance Company Ltd. reported in 2004 CPJ Vol.-II 177 it has been held information furnished to Company after a lapse of more than six months the mandatory provisions not followed.

    The Ld. Advocate on behalf of the OP No.1 & 2 categorically submitted that no document is forthcoming from the end of the complainant to show that the complainant ever served any notice to the OP No.1 & 2 or intimate the event within one calendar month or assigned any reason for causing delay of alleged intimation. Thereby in view of the aforesaid decisions when the mandatory provision has not been complied with the claim is not entertainable and the remedy if any lies otherwise not before the Forum.

    On the other hand the Ld. Advocate on behalf of the complainant advanced

    Contd…..P/5

    -:5:-

    argument that the date of death of the insured was duly intimated to the OP No.3 & 4 through letter dated 24.06.08 and the OP No.1 received the claim form from the complainant on 31.07.08. Since the death of the insured, the husband of the complainant took place due to road accident and it was not within the knowledge of the complainant about the policy matter for which it has not been intimated to the OP No.1 in time. When the policy in question was a valid one and the death took place within the valid coverage of the policy and when the complainant became mentally shocked due to sudden death of her husband and when she was not aware of the policy in question the OP No.1 & 2 can not repudiate the claim of such plea of causing delay or not informed/intimated in time.

    Let us now consider the case of the parties to the instant case.

    Admittedly, Bisweswar Roy since deceased, the husband of the complainant was an insured who obtained policy under Janata Personal Accident Insurance Policy in the New India Assurance Company Ltd. through Golden Trust Financial Services.

    Admittedly, the said policy was from 23.03.02 to 22.03.09 for a sum of Rs.4,00,000/-.

    Admittedly, under the said policy Smt. Sukla Roy, the wife of the deceased policy holder is the nominee.

    It is evident that the said insured Bisweswar Roy since deceased died on 12.05.08 at North Bengal Medical College Hospital compound.

    It is further evident that the death of said Bisweswar Roy took place by way of road accident. Post Mortem Report dated 13.05.08 supports the case of the complainant about the said death by accident.

    Charge Sheet dated 12.05.08 also goes to show that the death of Bisweswar Roy took place by road accident.

    The original Claim Form dated 15.06.08 and copy of the letter dated 24.06.08 as filed by the OP No.3 goes to show that the complainant submitted claim form before the Golden Trust Financial Services on 31.07.08.

    The copy of the letter dated 24.06.08 goes to show letter of request for settlement of the claim under the policy bearing No.512301/47/01/02188 dated 23.03.02 was sent to the New India Assurance Company Ltd. through Golden Trust Financial Services who received the same on 25.06.08 by putting its official seal and signature. It further reveals that the said Golden Trust Financial Services made a request by letter dated 05.08.08 to the New India assurance Company Ltd. for settlement of the claim file of Late Bisweswar Roy and the said letter also reflects that all the documents were sent to the New India

    Contd…..P/6

    -:6:-
    Assurance Company Ltd. along with such letter of request and the same was received by the New India Assurance Company Ltd. on the self same date i.e. 05.08.08 by putting its official seal and signature.

    The letter dated 24.10.08 issued by Golden Trust Financial Services to the New India Assurance Company Ltd. goes to show request was made for early settlement of Janata Personal Accident claim and such letter was received by the New India Assurance Company Ltd. on 24.10.08.

    It further reveals the complainant by her letter dated16.12.08 made a request to the New India Assurance Company Ltd. for settlement of the claim under the said policy and the same was received by the New India Assurance Company Ltd. on 16.12.08 by putting its official seal and signature. Subsequently, legal notice was sent by the complainant by letter dated 08.02.09 to the New India Assurance Company Ltd. and said letter was duly served upon the New India Assurance Company Ltd.

    The sole objection of the Insurance Company/the OP No.1 & 2 that terms and condition as embodied in the reverse page of the contract has not been complied with and under the contract it would be intimated within one calendar month.

    Admittedly, the death of the insured Bisweswar Roy took place within the valid coverage of the insurance policy.

    In the case of the M/S Firm Fresh Foods Pvt. Ltd. Hon’ble State commission, Himachal Pradesh held that the parties essentially are governed by the terms of the contract entered into by the insured with the insurer and the payment of premium is secondary and non-appreciation of this aspect of the matter has led to the error. The facts of the case under reference and the facts of the case in hand is not matching with each other. Therefore, this decision is not applicable in the instant case.

    In the case of Premlal N Ratan as referred above it reveals that the vehicle as referred in the said case has been removed from the alleged site of accident without informing the Insurance Company. Ultimately, the claim was repudiated by the Insurance Company. Thereby, story of accident creates a legitimate doubt for which the Hon’ble State Commission, Maharashtra came to a findings that after alleged accident when complainant did not report to the Insurance Company immediately or to the Police and no explanation is offered for the same the Insurance Company was not held to be deficient. But facts of the said case as referred above and the facts of the case in hand are quite separate and different for which the said decision is also not applicable in the instant case.

    In the case of P. Pravabati the information was given after a lapse of more than six



    Contd…..P/7

    -:7:-



    months. In that case the insured sustained chest injury while he was getting down from the up stairs of his house and ultimately died. The Death Certificate was issued by a Private Medical Practitioner and no Post Mortem was held. Their Lordship held on consideration of the condition under the contract that the whole idea of this condition seems to be that the Company shall have an opportunity to examine the insured/dead to satisfy itself about the occurrence. The Post Mortem should be conducted in case of death to arrive at the cause of death and information must be given within 14 days in writing after demand. Thereby, the Hon’ble State Commission held the condition referred to above is mandatory. But in the instant case just after the incident of accident the injured was taken to Anandalok Nursing Home wherein his death took place. Such incident took place on 12.05.08 and the matter was duly informed to the concerned P.S., Bidhan Nagar and the registered the same under G.D. Entry No.528 and started a Phansidewa P.S. Case No.96/08 dated 12.05.08. So, it is evident that G. D. Entry with regard to the alleged accident was duly informed to the concerned P.S. then and there without causing any delay. Accordingly, Charge Sheet was submitted by the concerned P.S. and Post Mortem was held where in it has been categorically stated death of the deceased insured took place due to the effect of the injury.

    It is true that the complainant being the nominee and legal heir of deceased insured did not inform the event to the OP No.1 & 2 in time. But the same was duly intimated to the OP No.3 & 4/Golden Trust Financial Services Ltd. on 31.07.08 and all the documents as referred above goes to show that the Golden Trust Financial Services duly intimated the said incident to the New India assurance Company Ltd. then and there and repeated request was made for settlement of the claim lodged by the complainant concerned. It is further evident that the policy was taken through Golden Trust Financial Services who is the authorised agent of the New India Assurance Company Ltd. under the MOU. There is no denial in this regard. After receiving the intimation from the Golden Trust Financial Services no proper step has been taken on the part of the OP No.1 & 2 or to take effective measures for settlement of the claim. When the incident has been investigated by the Police Authority i.e. State Investigation Machinery just after the occurrence and when there is no denial on the part of the OP No.1 & 2 about the nature of death or the nature of accident the ground of causing delay in intimation about the event violating the terms and condition under the contract is nothing but a lame excuse for not consideration of the claim of the complainant. It is not the case of the OP No.1 & 2 that they are not aware about he alleged incident. But it is evident that the Golden Trust Financial Services duly informed the incident and sent all the original documents



    Contd…..P/8

    -:8:-

    to the OP No.1 & 2 even then they did not take any steps to satisfy the claim of the complainant. So, circumstances, goes to show that despite having knowledge of the OP No.1 & 2 they did not take proper steps to consider the case of the claim as made by the complainant and their such silence amounts to deficiency in service on their part.

    In this regard Hon’ble National Commission in the case of Bijaya Shrimp Farms and Exports Ltd. Vs New India Assurance Company Ltd. reported in 2002 CPJ Vol.-III 293 the Hon’ble national commission held that requirement to give claim intimation within 12 hours directory not mandatory.

    In 2008 CPJ Vol.-II 483 Hon’ble State Commission, Delhi clearly stated provision regarding delay in intimating insurer or lodging complaint with police directory not mandatory in nature. In that decision Hon’ble State Commission further held to that effect what is relevant is whether any such accident or occurrence has taken place or not and whether the insured has played fraud or gave wrong information to take undue benefit against the Insurance Policy. In the instant case there is no such defence that fraud has been practiced upon the Insurance Company in order to obtain a claim under the Insurance Policy and no such incident took place at all.

    Further it is also to be considered whether there was wilful negligence remained on the part of the complainant concerned. But in the instant case the complainant being the beneficiary categorically stated in her evidence that she was not aware about the existence of the policy in question made by her husband. So, considering the circumstances, there is no wilful negligence on the part of the complainant concerned in lodging the claim at delay.

    Considering all the facts and circumstances, when the complainant being the widow of the deceased insured was under mourn due to sudden death of her husband it is unexpected for her to search out all relevant documents as left by her husband just after the incident in order to lodge any claim against those documents. Therefore, considering all the facts and circumstances, in the light of our reasoning we are of the view that the claim as lodged by the complainant is to be dealt with properly and in the manner of repudiation as taken in the W/V by the OPs is not at all justifiable.

    This is a case for non-payment of Insurance money in time by the Insurance Company. Whether such service amounts to deficiency of service as provided under Section 2(1)(o) of the Consumer Protection Act, 1986 is to be considered. There is no argument on the part of the OP denying the complainant as consumer under the Act.

    Section 2(1)(d) defined ‘Consumer’ which 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.

    Contd…..P/9

    -:9:-

    Section 2(1)(d)(ii) provides for hires or avails of any services for a consideration which has been paid or promised or partly paid.

    Here in the instant case the service was rendered by the insured on consideration for his life risk. Subsequently, the insured died within the valid coverage of the Insurance Policy. The complainant is a beneficiary of the insured. Therefore, when service was taken/hired or availed of on consideration the complainant can be treated as ‘Consumer’ as provided under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. When the claim of the complainant has been denied by the OPs No.1 & 2 the nature of dispute comes within the purview of 2(1)(e) of the said Act treating as ‘Consumer Dispute’.

    Further in the light of our reasoning it has already been held that the manner of service as rendered by the OPs No.1 & 2 in the form that the claim form has not been submitted before them in time and the event i.e. death of the insured by accidental death/road accident has not been intimated within one calendar month just after the incident and there was much delay to communicate it. Even it has not been duly intimated to the OP No.1 & 2 save and except legal notice thereby the complainant has violated the terms and condition. But in the instant case admittedly the insured obtained the policy through OP No.3 & 4/Golden Trust Financial Services who just after receiving the information intimated the OP No.1 & 2 for settlement of the claim but no scrap of paper has been filed to show that after receiving such intimation from their sister concern/GTFS they have taken any steps for settlement of the claim as lodged by the complainant. This sort of inaction on the part of the OP No.1 & 2 amounts to negligence on their part and also they are in deficient in service. So, when any fault or imperfection or shortcoming or inadequacy in the quality of the service transpires obviously it would come within the ambit of deficiency as provided under Section 2(1)(g) of the Consumer Protection Act, 1986.

    Further the nature of service as rendered by the OP No.1 & 2 it amounts to short coming of service which defines as service of any description which is made available to potential users and thereby the nature of service as rendered by the OP No.1 & 2 and despite knowledge of the incident of sudden death of the insured they have not come forward to extend their hands by settlement of the claim lodged by the complainant. So, all those circumstances leads the Forum to hold that such nature of service comes within the purview of deficiency of service as provided under Section 2(1)(g) & (o) of the Consumer Protection Act, 1986.

    In the instance case it has been urged that owner of the vehicle/truck is a

    Contd…..P/10

    -:10:-

    necessary party. But considering the nature of dispute involved in the instance case we do not find any justification to accept the view as expressed by the Ld. Advocate on behalf of the OP No.1 & 2.

    Under this facts and circumstances, in the light of our reasoning as made hereinbefore we are of the view that the complainant is entitled to get award as prayed for.

    Therefore, the complainant is entitled to get the insured sum of Rs.4,00,000/- from the OPs under the Policy No.512301/47/01/02188 having valid coverage for the period 23.03.02 to 22.03.09.

    Further we are of the view that the complainant is further entitled to get a sum of Rs.15,000/- towards mental pain, agony and harassment caused by the OPs in the manner as stated hereinbefore.

    In the result, all the issues are decided in favour of the complainant in part.

    Hence, it is,

    O R D E R E D

    that the Consumer Case No.52/S/2009 is allowed in part on contest with cost of Rs.1,000/-.

    The complainant is entitled to get a sum of Rs.4,00,000/- (Four Lakh rupees) only from the OPs who are jointly and severally liable to pay the said amount.

    The complainant is further entitled to get a sum of Rs.15,000/- (Fifteen Thousand rupees) only from the OPs towards mental pain, sufferings and harassment.

    The OPs are directed to pay the Awarded sum of Rs.4,00,000/- (Four Lakh rupees) together with Rs.15,000/- (Fifteen Thousand rupees) only as compensation within 45 days from the date hereof failing which the amount shall carry interest @ 9% per annum from the date of institution of the instant case i.e. 18.06.2009 till the realization of the said sum.

    In case of default, the complainant is at liberty to put the decree in execution.

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

  8. #158
    adv.singh is offline Senior Member
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    Default New India Assurance

    Complaint Case No : 1216 of 2009

    Date of Institution : 26.08.2009

    Date of Decision : 10.12.2009

    Ankur Bansal son of Sh.Arjun Bansal, Resident of H.No.576, Sector 7, Panchkula, Haryana.

    ….…Complainant

    V E R S U S

    1] New India Assurance Co. Ltd., SCO No.36-37, Sector 17, Chandigarh through its Chief Regional Manager.

    2] New India Assurance Company Ltd., 100, The Mall, P.B.No.25, Ambala Cantt. Haryana through its Divisional Manager.


    ..…Opposite Parties

    CORAM: SH.JAGROOP SINGH MAHAL PRESIDENT

    SH.SIDDHESHWAR SHARMA MEMBER

    DR.(MRS) MADHU BEHL MEMBER



    Argued by: Sh.Saurabh Goel, Adv. for complainant.

    Sh.Parvinder Singh Bedi, Adv. for OPs.



    PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

    Concisely put, the complainant, availed a mediclaim policy from OP vide Ann.C-1 and during the currency of said policy, he got his eyes checked at Grewal Eye Institute, Sector 9, Chandigarh where he had to undergo C3R surgery on 31.10.2008 and discharged on the same day. Approximately Rs.16,200/- (Ann.C-2) were spent on the said surgery. Then a claim was lodged with OPs, but it was repudiated. The repudiation was challenged before the Insurance Ombudsman but it too rejected the claim of the complainant on the ground that the disease was a pre-existing disease. It is averred that the complainant was neither asked about the health conditions at the time of giving the cover note nor any such document was required to be signed by the complainant and no terms & condition of the policy were ever explained to him. It is also averred that the OPs knowing that the complainant was suffering from the disease for which he has undergone a surgery during the last one year have again issued a policy for a period of one year and this time also no form was required to be signed and no undertaking was taken. Hence, this complaint has been filed alleging the above repudiation as illegal, arbitrary and deficiency in service on the part of OPs due to which the complainant had to suffer a lot.

    2] OPs filed joint reply and admitted factual matrix of the case. It is stated that the complainant was under regular treatment of Keratoconus in his right eye since 5th May, 2004 from the Grewal Eye Institute, Sector 9, Chandigarh and this fact was never disclosed by him at the time of purchase of the policy on 14.5.2008. It is also stated that the complainant in the proposal form itself declared that he is not suffering from any disease and thereby concealed the fact that he was suffering from Keratoconus and was under regular treatment with said Institute in order to extort the undue benefits from the OPs. It is further stated that the claim of the complainant was rightly repudiated firstly by the OPs and then by Insurance Ombudsman on the ground of pre-existing disease. Rest of the allegations have been denied and it is prayed that the complaint be dismissed.

    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 OP has mentioned in para 3 of the written reply that the complainant did not disclose at the time of the purchase of the Insurance Policy that he was getting regular treatment of Keratoconus in the right eye since 5.05.04. According to them the complainant had concealed this fact that he was suffering from the said disease and was getting regular treatment from Grewal Eye Institute, Sector 9-C, Chandigarh, as mentioned in para 3 of the reply. On the other hand the contention of the complainant is that no document was got signed from him and no undertaking was given by him but the covering note was given to him and subsequently the policy dated 14.05.08 was sent to him through post. It is denied if any terms and conditions of the policy were ever shown to him or he was ever asked about any such disease for which he may be getting treatment. It was necessary for the OP to place on file the proposal form to prove that the complainant did not disclose the treatment he was taking from Grewal Eye Institute, Sector 9-C, Chandigarh but the same has not been produced by the OP. An adverse inference is therefore to be drawn against the OP to the effect that the complainant never concealed any such information and the terms of the policy were never told to the complainant, that he would not be given reimbursement of expenses regarding pre-existing disease. If the OP was informed of the treatment being taken by the complainant and knowing fully well, the policy was issued to him, then the reimbursement of claim cannot be denied because there is no concealment of the disease by the complainant.

    6] It is a general tendency among the Insurance Companies that they are eager to issue the Insurance Policy without verifying and without bringing its terms and conditions to the notice to of the insured but they project all the terms and conditions against the insured, as and when the claim is submitted. This is unfair trade policy being adopted by the OP. The repudiation of the claim amounts to deficiency in service and therefore cannot be accepted. We are of the opinion that the present complaint must succeed. Accordingly the complaint is allowed. The OP is directed to pay a sum of Rs.16,200/- alongwith costs of litigation of Rs.2,200/- with in 30 days of the receipt of the copy of this order, failing which they would be liable to pay the same alongwith penal interest @12% p.a. since the filing of the present complaint i.e. 26.08.09, 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

  9. #159
    adv.singh is offline Senior Member
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    Default New India Assurance

    Consumer Complaint No: 01/2008

    Date of presentation: 10.07.2008

    Date of decision: 18.12.2009
    Awatar Singh S/O Shri Jogender Singh,

    R/O Village Akalgarh, P.O. Shivpur,

    Tehsil Paonta Sahib, District Sirmaur, HP.

    … Complainant.
    Versus

    New India Assurance Company,

    Yammunanagar Opp. Madhu Palace Jagadhri Road,

    Yammuna Nagar, Haryana

    Through its Branch Manager.
    …Opposite Party.
    For the complainant: Mr. N.K. Tomar, Advocate.

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

    O R D E R:

    Sureshwar Thakur (District Judge) President:- This order shall dispose of a, complaint filed under section 12 of the Consumer Protection Act, 1986. It is, the case of the complainant, that, he was owner of cow, which was got insured by him with the OP-Company, on, 17.03.2006, for an amount of Rs.20,000/-. He further avers, that, the insured cow died during the currency of the insurance policy, on account of illness. Thereafter, the insurance claim, came to be lodged with the OP-Company, but the OP-Company did not budge and delayed the claim, on one pretext or the other. Hence, feeling dissatisfied and aggrieved by the act of the OP-Company, the complainant, perforce filed this complaint against the OP-Company, for the relief, as claimed in the relief clause.

    2. The OP-Company, in its written version, to the complaint, contended that, two animals, were got insured by the complainant, with them and no cow having ear tag No.2439, was insured. They further contend that, the animal having tag No.2432, was insured by them. Hence, it is denied that there was any deficiency in service on their part.

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

    4. The complainant, is, having a grievance against the OP-Company, in not indemnifying him, on account of the death of his insured cow. The OP-Company, in its reply has come up with a, defence, that, the cow having ear tag No.2439, was, not, insured by them, rather, the cow having ear tag No.2432, was insured by them, hence, exculpating their liability to indemnify the complainant.

    5. Annexure-1, is, a copy of insurance cover, whose perusal makes, it, abundantly crystal clear that, the live stock, having ear tag No.2439, was insured with the OP-Company, which live stock died, during the currency of the insurance cover. This document, is, also bearing the stamp of OP-Company and also, that, of State Bank of India, Paonta. Though, the OP-Company, is, relying on Annexure R-1, yet, its perusal divulges the fact that, a buffalo and milch cow having ear tag No.2432 & 2452, were insured with the OP-Company. However, on a close scrutiny of the aforesaid document, it, further divulges that, it, is, neither containing the stamp of State Bank of India, Paonta, nor that of OP-Company, as is embossed in Annexure-1. Since, this document, has come from the possession of the OP-Company, hence, reliance cannot be placed on this document, for the reason, that, this document might have been fabricated by the OP-Company, in order, to, deny the claim of the complainant, on false and flimsy grounds. Therefore, we have, no, hesitation, in, concluding, that, the non-settlement of the claim of the complainant, by the OP-Company, tantamounts to a deficiency in service.

    6. In view of the above, we, allow this complaint and direct the OP-Company to indemnify the complainant to the extent of insured sum, of Rs.20,000/-, as reflected in insurance cover Annexure-1, along with interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 10.07.2008, till actual payment is made. The litigation cost is assessed at Rs.1500/-payable by the OP-Company to the complainant. These payments, shall be defrayed to the complainant, by the OP-Company within a period of forty five days, after the date of receipt of copy of this order. In the above terms, the complaint stands disposed of. 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.

  10. #160
    adv.singh is offline Senior Member
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    Default New India Assurance

    Complaint No.192/14.07.2009

    Decided on : 18.12.2009


    Smt.Gurjit Kaur wd/o Sh.Major Singh, Ms.Gurvinder Kaur D/o Sh.Major Singh, Sh.Davinder Singh S/o Sh.Major Singh and Sh.Balwinder Singh S/o Sh.Major Singh, all residents of village Bahadurpur, Tehsil Budhlada, District Mansa.

    ..... Complainants.


    VERSUS


    1. New India Assurance Co.Ltd., The Mall, Bathinda through its Senior

    Divisional Manager, Bathinda.


    2. New India Assurance Co.Ltd., Neat City Park, Baran Hatan Chowk,

    Mansa through its Branch Manager.


    3. The Central Co-op.Bank Ltd., Branch Bareta, District Mansa through

    Manager.


    4. The Bareta CASS Limited, Bareta through its Secretary/Competent

    Authority.

    ..... Opposite Parties.


    Complaint under Section 12 of the Consumer Protection Act, 1986.

    .....


    Present: Sh.Desh Bandhu, Advocate counsel for the complainants.

    Sh.P.K.Arora, Advocate counsel for the OPs No.1 & 2.

    Sh.H.S.Sadhuwala, Advocate counsel for the OPs No.3 &4.

    Quorum: Sh.George, President.

    Sh.Sarat Chander, Member.

    Smt.Neena Rani Gupta, Member.


    ORDER:-


    Sh.George, President:

    Briefly stated the complainant's case is that Sh.Major Singh had opened an account No.1684/06 with the OP No.3 bank and deposited Rs.1,000/- and was thus insured under the Janta Personal Accident Scheme by the New India Assurance Company. The policy holder, however, expired on 17.8.2008 due to electric shock at his home. After his death, complainants, being nominee, submitted the insurance claim to OP No.3, who in turn forwarded it to the OP No.2 for payment of insurance amount. However, the OP No.3 informed the complainants that the OP No.2 vide letter dated 31.3.2009 has repudiated the said claim. So nothing is payable under the policy. The complainants, feeling aggrieved and dissatisfied, the manner in which the OPs have repudiated the claim of insurance of the life assured, has filed the present complaint, seeking directions to the OPs to release the amount of insurance policy alongwith interest @ 12 % and benefits and also to pay an amount of Rs.20,000/- as compensation on account of mental agony, tension, harassment and inconvenience they have to suffer on account of inaction of the OPs and litigation expenses to the tune of Rs.5,000/-.

    2. The OPs No.1 & 2 have resisted the complaint and filed preliminary objections that the complaint is not maintainable in the present form; that the complainants have no locus standi or cause of action to file the complaint; that this Forum has no jurisdiction to try the present complaint; that the complainants are not consumers; that the complainants are estopped by their own act and conduct and that there is no deficiency in service on their part.

    3. On merits, while denying all the allegations, the OPs No.1 & 2 have asserted that the complainants be put to strict proof regarding the cause of death of the policy holder due to electric shock. However, it is admitted that Sh.Major Singh had opened an account with OP No.3 and had taken the Group Personal Accident Scheme Policy through the OP No.3 from them. On receipt of the insurance claim of the complainants through OP No.3, the claim was rightly repudiated by them for the reason that due to non submission of Post Mortem and Police report, by the complainants, it could not be ascertained as to whether the cause of death of the policy holder was accidental. Since the claim did not fall within the purview of the policy, so nothing is payable to the complainants. All other facts narrated by the complainants not admitted as correct.

    4. The OPs No.3 & 4, in their separate written reply, have resisted the complaint and filed preliminary objections that the complaint is not maintainable in the present form; that the complaint is bad for non joinder of the head office of their branch; that the complainants have falsely impleaded the OP No.4 as party to the complaint; that the complainants have not approached the Forum with clean hands and have suppressed the material facts from the knowledge of this Forum and that the complaint being false and vexatious is liable to be dismissed, with special costs.

    5. On merits, while denying all the allegations, the OPs No.3 & 4 have asserted that the premium of Rs.28/- deposited by the policy holder was duly deposited by the OP No.3 to the Insurance Company through its head office on 28.5.2008. They have also forwarded the application of the complainants alongwith the requisite documents vide their office memo No.94 dated 26.9.2008 to the Insurance Company. The claim, if any, is to be paid by the Insurance Company and not by them.

    6. In order to prove the allegations, the complainants brought on record affidavit of Smt.Gurjit Kaur Ext.C-1, letter dated 31.3.2009 Ext.C-2, copy of pages of pass book comprising 3 pages Ext.C-3, copy of opinion given by Dr.Ranbir Singh Ext.C-4, copy of relevant page of register pertaining to Account No.1684 Ext.C-5 and closed the evidence, whereas the OPs in order to controvert the evidence of the complainants, have brought on the record photocopy of letter dated 16.2.2009 Ext.OP-1, letter of repudiation dated 25.3.2009 Ext.OP-2, photocopy of policy Ext.OP-3, affidavit of Sh.P.K.Jain Ext.OP-4, letter dated 31.3.2009 Ext.OP-5, photocopy of ledger Ext.OP-6, photocopy of register Ext.OP-7, photocopy of pass book Ext.OP-8 and photocopy of policy Ext.OP-9.

    7. We have heard the learned counsel for the parties and perused the entire record of the case carefully.

    8. Learned counsel appearing on behalf of the complainants has urged that the OPs have admitted all the facts regarding the insurance of deceased Major Singh and the complainants, being legal heir, are entitled for the insurance amount. However, he urged that the insurance claim has been repudiated by the OPs No.1 and 2 vide letter Ext.OP-2 dated 25.3.2009 on the ground that the complainant, while submitting the claim for insurance amount, failed to file post-mortem report and copy of FIR. He further urged that Sh.Major Singh expired on 17.8.2008 due to electric shock at his home. The deceased after he got electric shock at his home, was taken to Dr.Ranbir Singh M.D.(Physician) Registration No.33352 (MCI), who after examining Sh.Major Singh, declared him dead at 11.35 a.m.. The learned counsel also urged that complainants have brought on record the relevant death certificate issued by Dr.Ranbir Singh Ext.C-4, which clearly reveals that Sh.Major Singh died due to accident on account of getting an electric shock at his home. He further urged that simply because the complainants could not file the post-mortem report and copy of FIR, alongwith their claim application that is not a valid ground for rejecting the claim of the complainants in respect of insurance claim qua Sh.Major Singh. Learned counsel in support of his contentions relied upon case titled National Insurance Company Limited versus Mohini Devi 2005(IV) CPJ 554, wherein Hon'ble Haryana State Consumer Disputes Redressal Commission, Chandigarh has held that repudiation of the claim made by the appellants only on the ground that no FIR was lodged with police and even post mortem report of the deceased was not done, cannot be justified. Learned counsel has further relied upon case titled Life Insurance Corporation of India versus Smt.Nidhi 2005(I) CPC 533 wherein Hon'ble Punjab State Consumer Disputes Redressal Commission, Chandigarh has held that insurance claim is based on the factum of death. Death can be proved otherwise, than FIR/post-mortem report.

    9. In the present case the complainant has brought on record certificate issued by Dr.Ranbir Singh Ext.C-4 which has given in details the cause of death. Ext.C-4 remained uncontroverted and unchallenged, as no counter evidence has been brought on the record by any of the OPs and under these circumstances, we are of the considered view that complainants have been able to prove on record that Sh.Major Singh received an electric shock at home. He was declared dead at about 11.35 a.m. after due examination by Dr.Ranbir Singh and Dr.Ranbir Singh gave the cause of death as "cardiac arrest due to electric shock". There appears no suspicious circumstance to doubt about the certificate issued by Dr.Ranbir Singh Ext.C-4 and, therefore, there are reasons to conclude for us that Sh.Major Singh died for no other reason, but due to receiving electric shock by an accident which ultimately resulted in his cardiac arrest leading to his death. Merely because the FIR was not lodged or that he was not subjected to post-mortem, is not a sufficient and reasonable cause for OPs No.1 and 2 to repudiate the claim of the complainants. We are also supported taking this view as a number of authorities where the death has occurred due to sudden accident and the matter is not reported to the police and the deceased was not subjected to post-mortem. The various Forums, as enumerated herein below, have come to the conclusion, as we have herein above.

    10. In case Rameshwar Dayal Tiwari versus Branch Manager, the Oriental Insurance Company limited, 2003(I) JRC 444, the facts were that the deceased had obtained a Janta Personal Accident Policy, who was mentally below normal since the age of 3 years. The insured while sitting as a pillion rider fell from the scooter as a result of which he suffered fracture neck femur right and remained bed ridden for 25 days and thereafter died on 07.05.1997 for respiratory obstruction. The claim was repudiated by the Insurance Company on the ground that the cause of death was not accidental. There was also absence of FIR and post mortem report and for that reason it did not fall within the purview of the policy. The District Forum accepted the stand of the Insurance Company and dismissed the complaint. The State Commission allowed the appeal by observing that repudiation of the claim or treating the claim as "no claim" was not justified for want of FIR and report of the accident. Notice was taken of the fact that the insured had suffered injuries by fall and not because of any disease.

    11. In case Branch Manager, LIC of India versus Raj Kumar Mishra 2000(I) CPJ 113=2000(I) CPR 32, the deceased had taken accidental policy in her name and while sitting on the motorcycle and on account of saree being caught in the wheel of the motor cycle, she fell down and sustained injuries and died after a month. The claim lodged by her husband was repudiated. Under these circumstances, death of the deceased was taken to be accidental and not natural. In this case, it was observed that non-furnishing of FIR and post mortem report would not mean that no accident had taken place.

    12. In case, the Divisional Manager, LIC of India versus Y. Ratnamma 2000(I) CPJ 548, the husband of the complainant had fallen from palm tree and succumbed to injuries. The accident benefit was denied as no FIR was lodged nor any post mortem was conducted. While rejecting the stand of the Insurance Company, it was held that "since the complainant's husband fell from the palm tree and died on the spot there was no question of filing FIR as there was no crime committed."

    13. In case National Insurance Company limited versus Mrs. Urmila Sindhuria, 1998(I) CPC 399, the deceased had an accidental fall in the toilet and thereafter died due to cardiac arrest. It was held "the immediate cause of death may be cardio-respiratory arrest but that was a direct consequence of the accident for which the insured had taken out the personal accident policy. Therefore, the objection raised by the Insurance Company is wholly arbitrary and without any basis.

    14. In Life Insurance Corporation of India versus Rajinder Singh 2000 (III) CPJ 150, the facts were that the scooter had slipped and had fallen in the canal along with the pillion rider Amarjeet Kaur. She died on 22.4.1991. The complainant being the nominee of the policy submitted a claim with the LIC, which was repudiated. Repelling the stand taken by the LIC, it was held that "the appellant-Corporation has failed to prove that the death of the deceased was not an accidental and at a private place.

    15. In case Oriental Insurance Company Limited versus Sharad chandra Harilal, 1996(II) CPR 76, the complainant suffered accidental injuries as a result of fall in the bathroom, his claim was repudiated by the Insurance Company on the ground that he had not suffered accidental injuries. Rejecting the stand of the Insurance Company, it was held that the claimant was entitled to claim reimbursement of the expenditure incurred by him for taking medical treatment for the injuries sustained by him in the accidental fall in the bathroom.

    16. In United India Insurance Company limited versus Gurdev Kaur 2002(III) CPJ 134(NC), the deceased had slipped down from house roof top and subsequently died of a heart attack. The claim was repudiated, but the State Commission accepted the complaint and awarded compensation which was upheld by the Hon'ble National Commission.

    17. In Karamjit Kaur and others versus Directorate Personnel, Punjab State Electricity Board and others 1994(I) CPJ 487-XI-XII-1993(III) CPR 450, husband of the complainant was employed as Assistant Lineman in the Electricity Board, who was covered by the Group Personal Accident Policy, had fallen from the stairs on 18.10.1990 and had sustained head injury and on account of this injury, he died on 11.11.1990. It was held that direct cause of death was head injury and not the intake of liquor and on that basis the stand of the Insurance Company was rejected and compensation was allowed.

    18. In case of Dr.Meena Raghunathan and others versus Oriental Insurance Company Limited 2003(I) CPC 669, the insured had an accident when a brick had fallen on his head from third floor of the hospital and h4e was rushed to emergency of PGI for treatment, where he became unconscious and subsequently was declared dead on 11.3.2001. In that case, no post mortem was conducted and even FIR was not lodged with the police. The claim put up by the appellant was repudiated on the ground that there was no record that the brick had fallen on the head of the insured on the date of accident. While rejecting the stand of the Insurance Company, it was held by the State Commission that the cause of death was Intraventricular Haemorrhage. There is thus a clean nexus between the incident of 14.2.2001 of the brick fall on the head and eventually hospitalization on 06.03.2001 where the insured suffered from Intraventricular Haemorrhage as a result of which he died. It was held that the OP-Insurance Company was not justified in relying on the report of the investigator which is not credit worthy. Accepting the complaint of the complainant, compensation was awarded.

    19. The learned counsel appearing on behalf of the opposite parties could not produce any authority contrary to the authorities referred to herein above.

    20. For the aforesaid reasons, complaint against OPs No.3 and 4 is dismissed and accepted against OPs No.1 and 2 and, the complainants are not only entitled for the insurance amount of Rs.1,00,000/- Ext.OP-9 but also interest @ 9% per annum. after three months of the filing of the application i.e. 26.09.2008. The OPs No.1 and 2 have repudiated the claim of the complainants without any justified reason and put the complainants to unreasonable mental tension, harassment and inconvenience by delaying their justified claim for a period of more than one year, therefore, the complainants are entitled for reasonable adequate amount of compensation as well, which we assess in the present facts and circumstances of the case, to the tune of Rs.50,000/- alongwith an amount of Rs.5,000/- as litigation expenses. Compliance of this order be made by the OPs No. 1 & 2 within a period of 45 days from the date of receipt of the copy of the order which shall be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record.

  11. #161
    adv.singh is offline Senior Member
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    CC.No.181 of 2008
    BETWEEN:

    Jakkula Seetharamaiah,

    S/o Ramaiah, Lorry owner,

    R/o D.No.7-6-848/276,

    8th lane, Siva Naga Raju Colony,

    Guntur. … Complainant

    and

    The New India Assurance Co.Limited,

    Rep. by its Divisional Manager,

    Divisional Office-II,

    LVR Club Complex, Koritepadu,

    Guntur. …Opposite Party

    This complaint coming up before us for hearing on 11.12.2009 in the presence of Smt B. Vasavi, advocate for complainant and of Sri N.D. Prasad, Advocate for opposite party, upon perusing the material on record, after hearing and having stood over till this day for consideration this Forum made the following:-

    O R D E R

    Per Sri T. Anjaneyulu, President:-

    This complaint is filed U/S 12 of Consumer Protection Act, 1986 by the complainant claiming a sum of Rs.3,00,000/- towards damage of the vehicle apart from compensation for mental agony, pain and suffering and legal expenses from the opposite party.

    The brief facts of case are that, complainant is the owner of lorry b.No.AP20U 7778 which was insured with opposite party vide policy b.no.621000/31/07/01/00000175 which is valid from 24-05-07 to 23-05-08.

    The said lorry met with accident on 05-12-07 near Arebali Ghat when it was proceeding from Hubli to Goa near Yellapur, it over turned, resulting in damage to vehicle and also causing death to persons in the vehicle. The lorry was fully damaged and complainant sustained loss to a tune of Rs.7,53,000/- for effecting repairs. The complainant made claim with opposite party for the same. The opposite party appointed surveyor who estimated damages at Rs.3,00,000/- and sent a letter dated 28-07-08 to complainant to furnish certain details of policy, registration certificate, permit trip sheet, fitness certificate, driving license, copy of FIR along with duly filled claim form and accordingly, they were furnished by complainant with the covering letter dated 18-08-08. The complainant did not receive any information from opposite party till date. The complainant therefore is constrained to file this complaint for necessary redressal as he sustained heavy loss. Hence, the complaint.

    Opposite party filed its version denying allegations made in the complaint. It is submitted that complainant has insured his lorry with this opposite party and submitted own damage claim in respect of accident date 05-12-07. The seating capacity of the said lorry is 3 in all. The opposite party had come to know that 9 unauthorized passengers in addition to driver and cleaner were traveling at the time of accident. As such, it wrote a letter dated 11-07-08 to complainant expressing their inability to entertain the claim, since it is a gross violation of terms and conditions of policy. Suppressing the said fact, complainant approached the Hon’ble Forum with unclean hands. The repudiation of claim by opposite party is just and proper. Carrying passengers in a goods vehicle is violation of terms and conditions of policy and hence complainant is not entitled to any amount from opposite party.

    There is absolutely no deficiency of service on the part of opposite party. Complainant did not plead any deficiency of service in his complaint. This Forum has no jurisdiction to entertain this complaint as it is not a recovery mechanism for the redressal of compensation for the alleged loss.

    When a claim under Workmen Compensation Act is received by the opposite party, the Legal Department of opposite party, as done in other cases by letter dated 28-07-08 asked complainant to furnish certain documents and information and complainant who is by then aware of repudiation of claim, furnished details again. Hence, replying for those details does not arise as already claimed is repudiated.

    The complainant did not sustain any loss to a tune of Rs.7,53,000/- and his lorry was not fully damaged as stated in the complaint. The surveyor did not estimate the damage as Rs.3,00,000/- in any event, the opposite party is not liable to pay any amount to complainant in view of repudiation of policy. Since, complicated questions of law and fact are involved in the matter which requires adducing of evidence and thorough enquiry of several documents, the Civil Court is competent to decide the same. Therefore, it is prayed to dismiss the complaint.

    Both sides have filed their affidavits apart from marking documents. On behalf of complainant Exs.A-1 to A-9 are marked. On behalf of opposite party Exs.B-1 and B-2 are marked.

    Now the points for determination are that,

    1. Whether repudiation of claim made by opposite party is legal and valid?

    2. Whether complainant is entitled for the amount as prayed for?

    3. To what relief?



    POINT No.1:- There is absolutely no dispute in between the parties about coverage of insurance policy for the lorry b.No.AP 20U 7778 owned by complainant which is valid from 24-05-07 to 23-05-08. There is also no dispute about the accident that occurred on 05-12-07 while the policy was in force and the above referred lorry got damaged. Equally, it is not in dispute that soon after the accident, it was informed to opposite party, who in turn got appointed a surveyor and obtained a report. The only dispute in settlement of claim is that at the time of accident the said lorry was carrying 9 unauthorized passengers as such, it repudiated the claim, since carrying passengers in a goods vehicle is against the terms and conditions of policy.

    The learned counsel for complainant contends that the policy in the nature of own damage to vehicle and carrying passengers is not a contributory factor to the said accident. It is contended that while passing through a curve on ghat road the driver lost control over the vehicle due to rash and negligent driving, as a result of the same it over turned and caused damage. He rely upon copy of FIR, including surveyor report to prove the said fact. In the surveyor report vide Ex.B-1 the cause of accident is shown as follows,

    “It was reported that the vehicle was proceedings towards Goa from Cuddapah. On its way near the accident spot, while passing through a ghat road descending down the hill, driver lost control over the vehicle and finally hit to the mud hill rolled and fell on to its left body portion resulting heavy damages”.

    In support of his contentions he also relied upon the following decisions,

    1. 2006 (4) ALT 27 (NC) (CPA) Oriental Insurance Co.Limited vs. Shri Bhagat Ram in that case the claim was repudiated on the ground that there were two unauthorized persons sitting in the truck. It is held that the same is not a valid ground for repudiation.

    2. 2009 (1) CPR 121 Balaiah vs. Thimmappa and another. The State Commission has held that carrying of unauthorized passengers by the driver or cleaner of the vehicle without the knowledge of the owner cannot be said to be a breach, unless it has contributed to the cause of action.

    The aforesaid principles held by the National Commission and State Commission having support to the contentions made by the learned counsel for complainant. In view of same, we held that repudiation on that ground is not legal, valid and justified. The point is answered accordingly.

    POINT No.2:- The complainant alleges that he has incurred huge expenditure to a tune of Rs.7,53,000/- in getting vehicle repair in workshop and that the surveyor appointed by opposite party has estimated the damage to a tune of Rs.3,00,000/- as such, he confined his claim to that extent. But as seen from service report, the net loss is assessed to a tune of Rs.1,34,000/- after deducting depreciation at 50% and also salvage. Of course, it is mentioned in his report that original estimation is to a tune of Rs.7,53,000/- as against this amount the net assessment is arrived at Rs.1,34,000/- but not Rs.3,00,000/- as contended by complainant. There is no other material on record to over through the estimation made by surveyor. Therefore, we feel it proper to award the aforesaid sum as assessed by the surveyor as damages as against the claim of Rs.3,00,000/-. The last contention on behalf of opposite party is that there is no plea about the deficiency of service on the part of complainant in his complaint as such this Forum cannot entertain this complaint as it is not a recovery mechanism. The opposite party alleges that it has already repudiated the claim by its letter dated 11-07-08 the said letter is not placed on record admittedly it sent letter dated 28-07-08 requiring the complainant to send all the documents mentioned therein, no where it is mentioned in the said letter that they are calling for these documents in respect of claim in WC 27/08. On receipt of above letter under Ex.A-2 the complainant once again submitted all documents. Having waited for sufficient time he has filed the above complaint. It is pertinent to note that opposite party did not plead even in its version that the letter dated 28-07-08 was sent in connection with the information regarding Workmen Compensation claim vide WC 27/08. Non settlement of claim amounts to deficiency of service that the opposite party claims that it has repudiated the claim by its letter dated 11-07-08 under Ex.B-2, there is proof of service on record. Therefore, the opposite party cannot find fault the complainant as there is no mention of words ‘deficiency of service’. The in action on the part of opposite party in settling the claim itself amounts to deficiency of service and this Forum has every right to entertain the dispute to decide it and also to recover the claims which is payable in accordance with law. The point is answered accordingly.

    In the result, the complaint is allowed in part in terms as indicated below:

    1. The opposite party is hereby directed to pay a sum of Rs.1,34,000/- with interest @9% p.a., from 11-07-08 till the date of realization.
    2. The opposite party is further directed to pay compensation of Rs.3,000/- (Rupees three thousand only) towards mental agony, pain and suffering apart from legal expenses of Rs.1,000/-.
    3. The aforesaid amounts shall be paid within a period of six weeks from the date of receipt of copy of order failing which the amounts ordered in item No.2 shall carry interest @ 9% p.a. till the date of realization.

  12. #162
    adv.singh is offline Senior Member
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    C.C.No.520 of 2007
    BETWEEN:
    Super Tyre Re-treading Works,

    Rep. by its Proprietor Chitteti Rajendra Prasad,

    R/o. D.No.26-16-29 K,

    Opp. ILTD Company, G.T.Road,

    Guntur. … Complainant
    AND
    The New India Assurance Company Ltd.,

    Rep. by its Branch Manager,

    B.O.No.111,

    D.No.6-19-48/43,

    11/1, Arundelpet, Guntur. … Opposite party

    This complaint coming up before us for final hearing on 25-11-09 in the presence of Sri P.V.Ramana, Advocate for complainant and of Sri G.Srinivasu, Advocate for opposite party, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

    O R D E R

    Per Sri T.ANJANEYULU, PRESIDENT:

    This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant claiming sum of Rs.4,31,807/- towards balance policy amount of damaged goods including interest, compensation for mental agony and legal expenses from opposite party.

    The brief facts of case are that

    The complainant is a proprietor and is running Tyre Re-Treading business in the name and style of Super Tyre Re-Treading Works under self employment scheme to eak his livelihood. The complainant is an unemployed person at the time of commencement of business. Due to lack of capital funds, the complainant approached AP State Finance Corporation and requested for assistance of funds for business. The APSFC has agreed to give financial aid to complainant and sanctioned loan of Rs.1,30,200/-, while sanctioning loan it has insured the firm business with the opposite party by paying premium amount on behalf of complainant. The nature of policy is fire policy. The policy sum assured for Rs.2,75,000/- and its validity commences from 02-01-97 to 01-01-98. The complainant is running business and regularly paying installments to APSFC and discharged his loan to the tune of Rs.99,909/-. While so a fire accident occurred on 11-05-97 in his business premises. Due to which the machinery burn into ashes and caused total loss. Immediately, the complainant informed the same to all officials including police, Fire Insurance Department. The insurance company appointed surveyor for assessment of loss in the unit. The complainant submitted claim form to opposite party with all relevant papers. The opposite party promised to pay the total loss and the same was adjusted in their loan account with APSFC. Thus the complainant processed the same with the opposite party for settlement of his claim. The opposite party without any legal basis arrived the claim at Rs.76,016/- instead of total loss of Rs.2,75,000/-. The complainant with great hope and faith waiting for claim amount. The opposite party unilaterally arrive the amount of Rs.76,016/- on 06-08-98 without his consent and knowledge and issued cheque in favour of APSFC. The complainant protested the same and requested the opposite party to settle the actual total loss of Rs.2,75,000/-. The part payment was received through APSFC and the complainant not signed any discharge voucher for the said amount. There are no valid contract terms in between the opposite party and the complainant. Since the date of part payment on 06-08-98, the complainant negotiated with opposite party and was making oral requests and the opposite party not denied balance claim nor issued any letter from their end. Therefore, the opposite party is liable to pay balance amount of Rs.1,98,984/- with interest there on from 06-08-98. Thus, the opposite party committed deficiency of service. The complainant is also making claim for Rs.10,000/- towards mental agony and Rs.10,000/- towards legal expenses, thus total claim for Rs.4,31,807/-

    The opposite party filed its version denying the allegations made in complaint. It is submitted that there is no deficiency of service on their part and the complaint is barred by limitation. The complainant is guilty of suppressiovari and suggestiofalsi. As such the complaint is not maintainable.

    It specifically denies the allegation that the opposite party unilaterally arrived the amount of Rs.76,016/- and on 06-08-98 without consent and knowledge issued cheque in favour of Department (APSFC) and the complainant protested the same and that he has not signed discharge voucher for the said amount. It further denied the allegation that since 06-08-98 the complaint negotiating this opposite party and made several oral requests for payment of balance amount.

    It is submitted that APSFC insured machinery and stocks of complainant with this opposite party by paying premium on behalf of complainant and accordingly this opposite party has issued fire policy in the name of APSFC, Guntur A/c M/s.Super Tyre Re-Trading Works. The period of policy is 02-01-97 to 01-01-98. the machinery is insured for Rs.1,50,000/- and the stocks are insured for Rs.1,25,000/- As such total sum insured under the above said policy for both machinery and stocks is Rs.2,75,000/-. The complainant informed that the fire accident occurred on 15-11-97 in his premises. Immediately after receiving information, this opposite party appointed surveyor to conduct survey and assess loss. The surveyor conducted survey and submitted his report without prejudice and subject to terms and conditions of policy.

    This opposite party further submits that immediately after receiving surveyors report, it came to know that there is no damage to machinery except carbonization. The loss assessed by surveyor on machinery is Rs.2000/- only. Further it came to know that 49 Tyres were damaged which includes both finished and unfinished. The tyre re-trading machinery installed in a building of II class construction attached with I Class RCC building and having passage with each other by a double door entrance. It is submitted that on the basis of surveyor’s report and as per the terms and conditions of fire policy, this opposite party settled the claim of complainant for Rs.76,016/- after thorough discussion with complainant and the complainant has also consented for the same. It is further submitted that the complainant himself along with APSFC issued discharge voucher dt.05-08-98 for Rs.76,016/- towards full and final settlement of claim. Then immediately this opposite party issued cheque for the said amount in favour of M/s.APSFC of A/c Super Tyre Re-trading Works. Thereafter the complainant got issued legal notice dt.20-11-98 to this opposite party alleging that it has assessed the loss unilaterally without any basis and paid the amount to APSFC without his consent. Thereupon, this opposite party got issued reply notice dt.04-12-98 to the complainant’s advocate stating that after careful consideration of available material papers and after obtaining valid discharge voucher dt.05-08-98 for Rs.76,016/- duly singed by complainant and his financiers i.e., APSFC in full and final settlement of all the claims under policy, this opposite party paid Rs.76,016/- to APSFC to the credit of complainant’s account as per terms and conditions of policy. There is dishonest intention on the part of complainant in issuing legal notice after lapse of four months. Lastly it is submitted that as per Section 24 (A) of Consumer Protection Act, the complaint has to be filed within 2 years from the date of cause of action. But the present complaint is filed in the month of July, 2007 i.e., after lapse of 10 years. Therefore, the complaint is not maintainable and is liable to be dismissed in limini.

    Both sides have filed their respective affidavit. On behalf of complainant Ex.A1 to A18 are marked. On behalf of opposite party Ex.B1 to B4 are marked.

    Now the points for determination are that

    1. Whether the opposite party has committed deficiency of service in not settling the claim as alleged by complainant?
    2. Whether the present complaint is barred by limitation as alleged by opposite party?
    3. Whether the complainant is entitled for the amounts as sought for?
    POINT No.1
    The dispute between parties is in narrow campus. The complainant is running a business known as Super Tyre Re-Treading Works in Piduguralla. On obtaining loan from APSFC, his business which includes machinery and stock in trade was got insured by APSFC for total sum of Rs.2,75,000/- which is evident from Ex.B1 copy of policy. The policy is issued in favour of APFSC, Guntur on account of M/s.Super Tyre Re-Treading Works, Piduguralla covering the period from 02-01-97 to 01-01-98. While so a fire accident occurred in the business premises of complainant on 11-05-97, which is evident from news item published in a Piduguralla Daily News Paper vide Ex.A9 and certificate issued by Fire Station, Piduguralla vide Ex.A10 and intimation letter sent by complainant on 11-07-97 to APSFC, Guntur vide Ex.A16 under which it is noted that he has sustained loss to the tune of Rs.2,50,000/- in the said fire accident and that he has processing claim with insurance company and that once claim is settled he would repay the loan amount. He has also made out a list in other letter as to what are the items damaged in the said fire accident. On intimation to insurance company about the same, it has appointed the surveyor by name N.Purnachandra Rao who in turn requested the complainant to submit necessary documents as listed in his letter dt.08-07-97 under Ex.A12 for assessment of loss. The insurance company addressed a letter to APSFC, Guntur on 03-08-98 vide Ex.A14 to submit project report and permission letter given by them for change of location of business from Piduguralla to Guntur. The complainant vide his letter dt.03-12-97 under Ex.A17 informed the insurance company that he has submitted all relevant papers to surveyor and requested to settle the claim at the earliest possible time. As seen from claim form vide Ex.A13, he has claimed total amount of Rs.3,19,600/- as against market value of items damaged to the tune of Rs.3,29,100/-. The other documents on record from Ex.A1 to A10 are relating to business. The facts mentioned so far are no way in dispute.

    It is the claim of insurance company that on receipt of surveyor report and on consideration of claim thoroughly, they have arrived net loss at Rs.76,016/- and sent the said amount to the credit of complainant account through a cheque dt.06-08-98 and also obtained discharge voucher for full satisfaction of claim from complainant on 05-08-98 vide Ex.B2 and Ex.A18. Therefore, they are no way liable for any further amount since they have paid amount after due assessment of loss considering all the material and there was valid consent from complainant in giving discharge voucher for full satisfaction vide Ex.B2. On perusal of the same, the signature of complainant is also found along with business name as Super Tyre Re-Treading Works, Piduguralla. It is further put forth by opposite party that surprisingly, the complainant got issued legal notice through his advocate on 20-11-98 alleging that he has sustained total loss of Rs.4,00,000/-. But demanding the insured sum under policy to an extent of Rs.2,75,000/-vide Ex.B3. Immediately, the opposite party got issued reply notice dt.04-12-98 vide Ex.B4 stating that the claim has been settled finally under policy to the tune of Rs.76,016/- as per terms and conditions and by following procedure, for which discharge voucher is obtained and at that time no protest is made by the complainant. It is also alleged that the claim has been settled diligently and as such there is no scope to reassess the loss.

    On perusal of above material on record, it is evident that the claim has been settled for Rs.76,016/- basing on report submitted by surveyor and considering all other material and insurance company also obtained discharge voucher in full and final settlement of claim vide Ex.B2 from complainant and amount is credited to the account of complainant by sending cheque dt.06-08-98 vide Ex.A18. It is seen from the documents filed by complainant that he has informed APSFC, the loss sustained by him in fire accident to the tune of Rs.2,50,000/- vide Ex.A16 but in the claim form submitted to insurance company to the tune of Rs.3,19,600/- vide Ex.A13 and sum of Rs.4,00,000/- vide legal notice under Ex.B3. Of course, though the complainant alleging loss of property at various sums, he has confined the claim to the tune of Rs.2,75,000/- only as assured under policy. But as stated supra basing on the surveyor report, following terms and conditions of policy and after salvage etc., the insurance company has settled the claim for a sum of Rs.76,016/- in full and final settlement and obtained discharge voucher. Apparently there was no protest for the same at the time to receipt of amount. As rightly pointed out by learned counsel for opposite party, the protest is shown through legal notice after gap of four months. For which there was suitable reply from them. In this context, the insurance company relied upon a decision report in 2008 (4) CPR 96 (SC), National Insurance Company Ltd. Vs. Nipha Exports Pvt. Ltd., wherein the Supreme Court of India observed that where insurance claim was settled and received by insured, in absence of any evidence that discharge voucher or receipt had been obtained from complainant fraudulently or by exercise of undue influence or by misrepresentation or the like or coercive bargaining, consumer complaint would not lie.

    They also relied on a decision reported by National Commission in 2008 (2) CPR 413 (NC) National Insurance Company Ltd. Vs. Krishna Rice Mills, wherein it is observed that discharge vouchers were executed voluntarily, and complainant had not alleged their execution under fraud, undue influence, misrepresentation or the like, fora below held unjustified in holding deficiency on the part of insurance company.

    On going through the aforesaid ruling, we find that no element of that sort is present in the instant case. It is only after receipt of amount after gap of four months the protest is made for payment of balance amount of policy. Thus we find no deficiency of service on the part of opposite party. The point is answered accordingly.

    POINT No.2

    The present complaint appears to be obviously barred by limitation as per section 24 (A) of CP Act as the same is filed after gap of 10 years from the date of cause of action. The claim was settled on 1998 and the present complaint is field in the month of August, 2007. Of course, legal notice was on 20-11-98 and reply notice was on 04-12-98, even excluding this period the present complaint is after a period of 9 years. Though the complainant alleges that he was making continuous oral requests for payment of balance amount, the same is not born out by record. In this context, the learned counsel for insurance company relied on a decision reported in 2009 (5) ALD 45 (SC), Kandimalla Raghavaiah and Company Vs. National Insurance Company and another, wherein the terms cause of action is explained. According to court it is different in different contexts. “In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out” as held by court.

    In the same judgment in para 19 it is observed that “a bare reading of impugned order shows that all these factual aspects have been duly taken into consideration by the Commission and we are in compete agreement with the finding by Commission that the filing of claim by the Bank on 14th July, 1988 would not have, in any way, helped the appellant. On their own showing, for the first time, only on 6th November, 1992 and then again on 26th October, 1995, the appellant had requested the insurance company to issue claim form to enable them to prefer a claim which request was declined by the insurance company on 21st March, 1996. By no stretch of imagination, it can be said that insurance company’s reply dated 21st March, 1996 to the legal notice dated 4th January, 1996, declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24A of the Act. We have no hesitation in holding that the complaint filed on 24th October, 1997 and that too without an application to condone delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground.

    In AIR 2009 Supreme Court 2210 in a case between State Bank of India Vs. M/s. B.S. Agricultural Industries. It is observed that the Forum not to admit consumer complaint filed beyond limitation. Provision as to limitation is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action.

    Thus, it is seen from aforesaid latest citation that the preset complaint is barred by limitation and the same is not maintainable.

    POINT No.3
    In view of the finding given above, the complainant is not entitled for any amount as sought for. Hence, the complaint is dismissed.

    In the result, the complaint is dismissed. Each party shall bear their own costs.

    Dictated to Junior Steno, transcribed by her, corrected by us and pronounced in the open Forum, this the 10th day of December, 2009.

  13. #163
    adv.singh is offline Senior Member
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    Default New India Assurance

    consumer case(CC) No. CC/07/354

    S.Vijayakumar, Thevanathu Vadakkathil, Pallisserikkal.P.O., Sasthamcottah
    ...........Appellant(s)
    Vs.
    Divisional Manager, New India Assurance Company Ltd. and Other

    Branch Manager, New India Assurance Company Ltd.,Palayam
    ...........Respondent(s)
    BEFORE:
    Complainant(s)/Appellant(s):


    OppositeParty/Respondent(s):


    OppositeParty/Respondent(s):


    OppositeParty/Respondent(s):

    ORDER

    SRI.K. VIJAYAKUMARAN, PRESIDENT.

    This is a complaint seeking realization of Insurance amount, compensation and costs.

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

    The complainant is the registered owner of the Hyundai Santro car bearing Reg.No.KL-2/R-9548, The vehicle had a valid Insurance Policy from 21.3.2006 to 20.3.2007. On 15.6.06 at about 3 p.m. the car met with an accident near Kadappakada in which it hit against motor vehicle bearing Reg.No.KL-2/C-1313. The car at the time of accidentwas driven by the authorized driver. Due to the accident the car sustained damages. The incident was reported to the opp.parties and the traffic policy who registered Crime No.298/2006. The vehicle was taken for repairs to the Hilton Motors, P.T.P. Nagar, Thiruvananthapuram The complainant incurred an expenditure ofRs.37,936/- for repairs and a sum of Rs. 3900/- for towing the car to the authorized workshop. The complainant put forth his claim to the opp.parties along with the original bill, but the claim was repudiated on 22.11.2006 on the ground that fitness certificate is not valid. The fitness certificate is not a a condition precedent in granting compensation for the damages sustained to a vehicle having a valid comprehensive insurance coverage. The car was being driven at the time of accident by an authorized driver The repudiation of the claim is illegal and hence the complaint.

    The opp.parties filed version contending, interalia, that the complaint is not maintainable either in law or on facts. It is admitted that the complainant was the RC owner of Hyundai Santro Car bearing Reg.No.KL-2/R 9548. The said vehicle was a taxi car used for hire. It is true that the vehicle was insured with the opp.parties and insurance was valid for the period from 21.3.2006 to 20.3.2007. The fitness certificate of the above vehicle expired on 12.4.2006. The complainant did not make the vehicle roadworthy and obtain a valid fitness certificate knowing that the vehicle was having no Fitness the complainant put to use the vehicle in contravention of the Kerala Motor Vehicles Act and Rules and violating the terms and conditions of the policy of the Insurance. The vehicle met with an accident on15.6.2006 is admitted a couple who were traveling in a scooter and the car hit each the causing damages to both the vehicle and injuries to a couple who were traveling in the scooter. The traffic police, Kollam registered crime No.298/2006 against the driver of the complainant. The claim for payment of repair bills spares etc. by the complainant was repudiated for valid reasons. The repair bills are also huge arbitrary and excess . There is no efficiency in service on the part of the opp.parties. Hence the opp.party prays to dismiss the complaint.

    Points that would arise for consideration are:

    1. Whether the repudiation of the claim valid?

    2. Whether there is deficiency in service of the part of the opp.parties

    3. Reliefs and costs.

    For the complainant PW.1 is examined. Ext. P1 to P9 are marked.

    For the opp.party Dw.1 is marked.

    Points:

    As a matter of fact the policy as well as the accident are admitted. Also not disputed that the vehicle at the time of accident did not have valid certificate of Fitness. It has come in evidence that the complainant’s vehicle was a commercial vehicle . The opp.parties have repudiated the claim preferred by the complainant on the ground that the vehicle had no fitness certificate at the time of accident and therefore there is violation of policy condition. The contention of the complainant is that Fitness certificate is mandatory for the purpose of registration and if the registration is valid the owner of the vehicle is at liberty to drive that vehicle in any public place. It is the further case that no condition is stipulated in Ext.P1 series or Ext. D1 that for getting damages as per policy there must be valid fitness certificate.

    According to the opp.parties the vehicle had no certificate of fitness on the date of accident ie on 15.6.2006 and that the fitness expired on 12.4.2006 and since the complainant put to use the vehicle without making the same roadworthy there is violation of policy condition.



    The learned counsel for the opp.party would argue that the use of the vehicle which is a transport vehicle without fitness certificate will entitle the insurer to disown liability under the policy relying on the decision of the High Court of Kerala reported in 2009 [2] KLT 707. In the above decision the Hon’ble High Court has held that use of the vehicle without fitness certificate or permit will entitle the insurer to disown the liability under the policy.



    In conditionNo.5 of Ext. D1 it is clearly stated that insured vehicle shall be maintained in efficient condition Section 56 [1] of the Motor Ve9icle Act 1980 reads as follows “ subject to the provisions of sections 59 and 60: a transport vehicle shall not be deemed to be validly registered for the purposes of section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorized testing station mentioned in sub-section [2] to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules .made thereunder”. From the wording of the section it is obvious that a transport vehicle shall not be deemed to be validly registered for the purpose or sec. 39 unless it carries a certificate of fitness No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this chsapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carriees a registration mark displayed in the prescribed manager.” It is obvious that without a valid certifiat6e of fitness the vehicle should not be deemed to be validly registered for the purpose of Sec. 39 which means without a certificate of Fitness a transport vehicle is deemed to be an unregistered one. National Commission has observed Non Possession of fitness certificate of vehicle on date of accident was in violation or Sec. 56 of Motor vehicles Act and constitute breach of conditions of policy [I [2006] CPJ 146. ] From the decision of the Hon’ble High Court of Kerala referred to above and the above decisions of the National Commission it is clear that non possession of certificate of fitness on the date of accident will constitute breach of condition of policy. When there is breach of policy condi9tion the opp.parties have every right to repudiate the claim. We hold that the repudiation of the claim of the complainant is proper and calls for no interference. Points found accordingly.

  14. #164
    adv.singh is offline Senior Member
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    Default

    Gopal Pasupathy,

    No.3. NRN Compound,

    Lakshmipuram, Complainant

    New Avadi Road,

    Villivakkam,

    Chennai – 600 049.

    Vs

    The Manager,

    The New India Assurance Company Ltd.,

    Divisional Office, Opposite party

    Allied’s lMount Care,

    Blanca Building, 2nd Floor,

    Old No.701-702, New No.260

    Anna Salai, Near Anand Theatre,

    Chennai – 600 006.



    Date of Complaint : 12.01.2005

    Mrs. N. Premalathi : Counsel for the complainant

    Mrs.M.B. Gopalan,N. Vijayaraghavan,& : Counsel for the opposite party

    M.B.Raghavan.





    ORDER

    THIRU.P. ROSIAH, PRESIDENT.

    Complaint under section 12 (1) of the Consumer Protection Act,1986.

    1. The main averments of the complainant are as follows:

    The complainant has taken good health policy from the opposite party in December 2002 for sum assured at Rs.110 lakhs each for himself and his wife for a period from 01.12.2002 and 30.11.2003. The complainant was admitted in the hospital for Amoebic lever abscess in Bharath hospital on 23.08.2003 and discharged on 15.10.2002. Immediately after discharge from the hospital, he submitted medical bills to the opposite party. But he was advised to resubmit the claim form with the latest procedure. The complainant subsequently submitted medical bills for Rs.1,04,620/- on 03.11.2004 to the opposite party. The opposite party by letter dated 05.11.2004 repudiated the claim on the ground that the claim should have been submitted within 30 days from the date of discharge from the hospital and since it was more than one year the claim cannot be entertained. According to the terms and conditions of the policy, the time restriction for making claim is against the Indian Contract Act. The opposite party committed deficiency in service. The complainant has filed this complaint for recovery of Rs.1,04,620/- being the medical expenses incurred by him and compensation of Rs.1,00,000/- and costs of the complaint.

    2. The opposite party filed version and contended inter alia that the complainant was covered good health medi-claim policy for the period from 01.12.2002 to 30.11.2003. The policy has been issued subject to various terms and conditions mentioned in the certificate. The complainant alleged to have been hospitalized between 23.08.2003 to 15.10.2003 and submitted claim for Rs.1,04,620/- on 03.11.2004. Since he preferred claim after one year of the treatment it was repudiated as per the conditions of the policy. The terms and conditions are binding on the complainant also. The complainant never preferred the claim before l03.11.2004. There is no deficiency in service on the part of the opposite party and prayed for the dismissal of the complaint.

    3. Proof affidavits have been filed by both the complainant and the opposite party. Exhibits A1 to A5 have been marked on the side of the complainant. Exhibit B1 was marked on the side of the opposite party.

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

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

    opposite party?

    2) To what relief the complainant is entitled to ?

    5. Point No.1: The complaint had taken good health policy with the opposite parry for the period from 01.12.2002 to 30.11.2003 for sum assured Rs.1.10 lakhs each for himself and his wife. Ex A1 is the policy. He was admitted in the hospital for treatment of amoebic lever abscess on 23.08.2003 and discharged on 15.10.2003. Exhibits A11 and A12 are summary discharge. The complainant submitted claim with the opposite party on 03.11.2004. Ex A3 is the letter written to the opposite party enclosing all the bills. The opposite party rejected the claim on the ground that it was submitted after one year from the date of treatment which is violation of terms and conditions of the policy. Hence, the complainant has preferred this complaint. The complainant would submit that as per section 28 of the Indian Contract Act. The time limit restricted by the opposite party is void. The learned counsel for the complainant relied on a decision of the Hon’ble Supreme Court of India reported in (1997) 4 SCC 366 in the case of National Insurance Company – Vs – Sujir Gnesh Nayak and Company wherein it was held that

    “ an agreement which in effect seeks to curtail the period of limitation and prescribes a shorter period than the one prescribed by law would be void as offending section 28(b) of the Contract Act “.



    The learned counsel for the complainant would further submit that stipulation of 30 days time for preferring a claim before the Insurance Company is not an absolute term of the contract. The liability cannot be curtailed or restricted by the Insurance Company by the printed format traditionally adopted by them.

    6. The opposite party would submit that Ex B1 is the policy and terms and conditions were attached to the policy and they are binding on the complainant. We have perused the policy Ex B1, which was issued subject to terms and conditions and exclusions under clause 5.2 the time limit was 30 days prescribed for preferring the claim but does not take away the right of the complainant to claim the expenses incurred in the hospital since the money claim can be preferred within three years as per the Limitation Act. The decision of the Apex Court reported in (1997) 4 SCC 366 is applicable to the case on hand. Though the period of limitation was three years for money claim the opposite party cannot restrict the same by prescribing printed terms and conditions in the policy. Even in the policy it was not stated that the claim preferred after 30 days cannot be entertained. Hence, there is deficiency in service on the part of the opposite party.

    7. Point No.2: In the result, the complaint is allowed. The opposite party is directed to pay Rs.1,04,620/- being the medical expenses incurred by the complainant if found correct after scrutiny of the bills and also a sum of Rs.15,000/- as compensation for mental agony and Rs.5000/- as costs of the complaint to the complainant. The amount shall be payable within six weeks from the date of receipt of co0py of this order, failing which the amount shall carry interest at the rate of 9% per annum till the date of payment.

    Dictated to the Steno-Typist , taking down, transcribed and computerized by him, corrected and pronounced by us on this the 2nd day of March 2009.

  15. #165
    adv.singh is offline Senior Member
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    Default New India Assurance

    C.C.CASE NO.101 OF 2007
    Sri Kaushik Sasmal,

    Son of Sri Sushil Sasmal,

    Village Hariharpur,

    P.S.Udaynarayanpur,

    Dist.Howrah … Complainant
    -vs-

    1) The New India Assurance Co.Ltd.

    4, Mangoe Lane, Kolkata-700001



    2) Branch Manager,

    The New India Assurance Co.Ltd.

    Serampur Branch,

    57A/2/1, G.T.Road, Kalitala

    Serampur,

    Dist.Hooghly …. Opp.Parties

    Order no. 31 Date 11/01/2010

    The complainant Sri Koushik Sasmal has filed the instant case U/s 12 of the C.P.Act. against the Opposite parties New India Assurance Company Ltd., Kolkata herein referred to as Op no.1 and Branch Manager, New India Assurance Co.Ltd. Serampur Branch herein referred to as OP no.2.

    CASE OF THE PETITIONER :

    The complainant purchased a Maruti Alto Car vide Registration no.WB 02=9987 valid upto 6.5.07 from M/s Allied Tube Wells and the insurance was in the name of M/s Allied Tube Wells Pvt.Ltd which was valid upto May 2006. The complainant obtained a sell letter and Form no.25,28,29 & 30 of MV Act from the previous owner for transferring the ownership of the Maruti car in his favour. Now after expiry of the insurance coverage which was in the name of M/s Allied Tubewells Pvt.Ltd, the complainant went to the office of the Op 2 for renewal of the policy and Op 2 being satisfied with the papers and documents issued a policy (no.512501/31/06/01/00001312) for the period 14.5.06 to 13.5.07 in favour of the complainant, though the ownership of the said Maruti Alto Car was not transferred in favour of the complainant . Op no.2 at the time of issuance of the policy had gone through the original documents viz. Registration certificate, Tax receipt of the car which shows that they were well aware of the fact that the ownership was still in the name of the previous owner and not in the name of the complainant. The op 2 issued the policy against a premium of Rs.4,000/- (Rupees four thousand only). Now due to flood in Udaynarayanopur Block under Howrah district the said Maruti car was under water from 24.9.06 to 26.9.06 and as a result the said car was damaged. Thereafter, the complainant appointed a licensed surveyor named Manaranjan Das for assessment of nature, cause and extent of damage. The surveyor made the investigation on 30.9.06, 1.10.06 and 4.1.07 and thereafter the complainant duly filled up the claim form and submitted the same to the office of Op2 along with relevant documents. The claim was Rs.48,000/- (Rupees forty eight thousand) only as per surveyor’s report . But unfortunately Op 2 repudiated the claim of the complainant vide reference no. 501/Motor/SKS/06-07/548 dated 21.2.2007 on the grounds that the name of the complainant was not incorporated in the R.C.Book and he had applied for transfer of ownership after the incident. Due to those reasons he had no insurable interest. The complainant submits that when Op no.2 collected the premium they were well aware of the fact that the ownership of the car is still in the name of the previous owner M/s Allied Tube Wells Pvt.Ltd. and not in the name of the complainant Sri Kaushik Sasmal. The complainant sent a letter to oP 2 through his lawyer requesting them to pay the repairing cost of the vehicle but the latter did not pay any heed to his request . Finding no other alternative the petitioner has come to the forum for getting relief with the following prayer .



    (i) Direction upon the op 2 to pay a sum of Rs.48,000/- (Rupees forty eight thousand only) towards repair of Maruti Alto car (no.WB02-N-9987) along with interest @ 18% p.a. till final payment.

    (ii) A sum of Rs.1,00,000/- (Rupees one lac only) to the complainant towards loss of business, mental agony.

    (iii) A direction upon oP2 to waive the repudiation letter dated 21.2.2007.

    (iv) Cost of the proceedings.



    The Opposite party in their written objection admits that the complainant went to the office of the op 2 with all the documents relevant to the purchase of the vehicle in question from the previous owner and being satisfied the latter issued the policy to the petitioner. While taking the policy the complainant assured Op 2 that he had already taken necessary steps for transfer of ownership and as soon as the same is done he will communicate to the opposite party. The oP on good faith issued the insurance policy in favour of the petitioner and made it absolutely clear that they would not be in a position to honour any claim on happening of any event till the ownership of the vehicle is transferred in favour of the petitioner. The OP also admits that the report of the surveyor is a privilege for them but the same is in no way binding upon them as all claims are settled within the terms, conditions, exception and limitation of the policy. The oP also submits that the complainant applied for transfer on 4.12.06 which is after the alleged incident which is a complete violation of the mandatory provision of the Motor Vehicle Law. It is also submitted by the oP that the claim was excess , abnormal and fabricated and not worthy of settlement.

    From the above pleadings of both parties the following issues are framed :

    (i) Whether the complainant is a consumer ?

    (ii) Whether there is deficiency of service on the part of the Opposite party ?

    (iii) Whether the complainant is entitled to relief as prayed for ?



    FINDINGS WITH REASONS

    (i) The complainant is a consumer under the OP Insurance company, since the latter has issued an insurance policy (No.512501/3l/06/01/0000l3l2) on reeipt of premium of Rs.4000/-. Hence the oP is a Service provider.

    (ii) The OP insurance company scrutinized the documents of the complainant regarding ownership of the vehicle and only being satisfied issued an insurance policy in favour of the complainant. Now when the complainant is claiming from the oP an amount of Rs.48,000/- towards loss and damage of the vehicle the latter is denying to settle the claim . The oP repudiated the claim not on any other grounds but only on the ground of ownership. Then while issuing the said policy why the oP insurance company did not follow the Motor Vehicle Rules regarding ownership of a vehicle? The OP cannot satisfy the ld.forum in this regard and also could not prove that though the insurance policy can be issued in absence of transfer of ownership in the R.C.Book but claim cannot be entertained or honoured till the transfer is effected. The OP suffers from deficiency in service since they cannot repudiate a claim on the ground of lack of ownership in favour of the complainant when they issued the same policy ignoring this Act and they are bound to honour the claim of the complainant.



    (iii) The petitioners are entitled to relief as prayed for.

    Demand draft paid is correct.

    Hence it is ordered

    That the instant complaint petition u/s 12 of C.P.aCt 1986 be and the same is allowed on contest against the Ops with cost. The Opposite party are jointly or severally liable to compensate the petitioner. The Ops are directed to pay a sum of Rs.48,000/- (Rupees forty eight thousand only) along with 9% interest from the date of repudiation i.e. from 21.2.2007 within one month from th date of order along with litigation cost of Rs.2000/- (Rupees two thousand only). In default the full decretal amount (i.e. Rs.48,000/- plus 9% interest for 36 months + Rs.2000/-) will carry an interest of 11% from 12.01.10 till date of full realization.

    Let a copy of this order be made over to the parties free of cost.

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