Complainant Opposite party (s)

Smt. Shalini Lodha, 1. The New India Assurance Company Ltd.

W/o. Late Sandip Lodha, Represented by: The Branch Manager,

Vill. & P.O. Dubra, Howrah Branch, Unit No. 512200,

Police Station: Para, Madhusudan Apartment,

District: Purulia (W.B.) P-18, Dobson Lane, 2nd Floor,

H O W R A H- 711 101.

2. The Golden Trust Financial Services, Represented by: The Branch Manager,

Purulia Brach, Ranchar Galli, Purulia,

P.O. & Dist: Purulia.

Present:

1. Sri B. Das, President.

2. Sri A.K. Sinha, Member.

3. Smt. S. Sengupta (Santra), Member.

For the Complainant : Sri P. Roy, Advocate.

For the O.P.No. 1 : Sri N.L.Singhania, Advocate.

For the O.P.No. 2 : Ms. M. Paul, Advocate.
Order No. 10, dated 08.01.2010, CC No. 28 of 2009

The case of the complainant is stated as follows:-


The husband of the complainant was an agent of Golden Trust Financial Services (herein after as “GTFS”) vide Agency Code No. 0163896. The said GTFS is the agent of New India Assurance Company Limited. During his lifetime the husband of the complainant opened a Group Janata Personal Accident Insurance Policy through the GTFS with Certificate No. 0163896/200000017975 on 23.4.2000 for the period from 23.4.2000 to 22.4.2015. The husband of the complainant died on 03.01.2009

due to road traffic accident. The complainant submitted claim along with relevant documents to the GTFS on 27.01.2009. The complainant requested several times to the Branch Manager of GTFS, Purulia branch to take necessary step for settlement of the dues but in vain. The O.P.No.2 sent her claim application to the O.P.No.1 to settle the claim. The complainant alleges that there is negligence on the part of the O.Ps. for non-settlement of the claim. Accordingly, the complainant filed the case for realization of the assured sum together with interest, litigation cost and compensation.



The O.P.No.1/ New India Assurance Company Limited has been contesting the case by filing show cause contending inter alia that the instant case is not maintainable and that the complainant is not a consumer and that they have no deficiency in service. The further contention of the O.P.No.1 is that the claim of the complainant is misconceived and without any basis and prays for dismissal of the case.



The O.P.No.2 has been contesting the case by filing show cause contending inter alia that the husband of the complainant opened a policy through them and the same was duly sent to the O.P.No.1 and after the death of her husband the complainant submitted claim application which has been duly sent by them to the O.P.No.1 vide their letter dated 10.02.2009. The contention of the O.P.No.2 is that they have no authority or right to settle the claim of the complainant and that they have no liability at all against the amount claimed by the complainant from the O.P.No.1.
Herein we are to consider the following points:-
(1) Whether the complainant is a consumer;

(2) Whether there is deficiency in service by the O.Ps.;

(3) Whether the complainant is entitled to get reliefs as prayed for.

-: Decision with reasons:-

From the record it appears that the complainant is the wife of Late Sandip Lodha and the O.P.No. 1 is the New India Assurance Company Limited and the O.P.No.2 is the Golden Trust Financial Services.

Ld. Lawyer for the O.P.No.1 submits that the husband of the complainant was not the agent of the GTGS. From Exbt. “1” it appears that the husband of the complainant was an agent of the O.P.No.2 who was the agent of the O.P.No.1. It appears that the husband of the complainant got the code number and necessary document for the same. It appears that the Exbt. “1” is an authentic document and we are of opinion that the husband of the complainant was an agent of GTFS and he obtained the card on 04.4.2000. From the memorandum of understanding filed by the O.P.No.2 on 04.11.2008 we find that the O.P.No.1 has agreed to allow the O.P.No.2 to extend Janata Personal Accident insurance cover to their investors and their family members, field workers and their family members and their friends under Group Insurance Scheme. So we find that the O.P.No.2 acted as an agent of the O.P.No.1. From Exbt. “2” we find that the husband of the complainant got the policy number with Certificate No. 0163896/200000017975 dated 23.4.2000 for the period from 23.4.2000 to 22.4.2015. On perusal of Exbt. “2” we are of opinion that the husband of the complainant was a consumer of the O.P.No.1.

Now let us see whether there is deficiency in service from the end of the O.Ps. Ld. Lawyer for the O.P.No.1 submits that the O.P.No.1 demanded some documents from the complainant before filing of the present case but they did not submit those documents and the matter is still pending and not yet repudiated.

Ld. Lawyer for the O.P.No.2 submits that the O.P.No.2 has no liability at all in respect of settling the claim of the complainant and that they sent the claim application of the complainant to the O.P.No.1 in time.

It appears that the complainant was the sole nominee of the deceased husband. Admittedly, the husband of the complainant died on 03.01.2009. From the cross-examination of P.W. 1 we find that the husband of the complainant was working under the O.P.No.2 as an agent and after the death of her husband the O.P.No.2 was duly informed and the O.P.No.2 gave specific Claim Form to her for realization of the dues and the O.P.No. 2 sent the duly filled in Claim Form to the O.P.No.1. So we find that the O.P.No.2

has no authority and right to settle the claim of the complainant. It appears that the O.P.No. 2 acted as an agent of the O.P.No. 1 and they sent the Claim Form of the complainant to the O.P.No.1 on 10.02.2009.

Now let us see whether O.P.No. 1 has any deficiency in service. The contention of the O.P.No. 1 is that they demanded some relevant documents from the complainant before filing of the case but the complainant did not submit those documents and that the matter is still pending and not yet repudiated. The fact remains that the O.P.No. 1 received the claim application from the complainant and the matter in dispute is still pending.

Considering the facts and circumstances of the case we are of opinion that the complainant is entitled to get assured sum of Rs. 1, 00,000=00 in respect of the policy in question from the O.P.No.1. Exbt. “2” shows that the insurance value stood for Rs. 1, 00, 000=00. The policy stood in the name of the husband of the complainant and he nominated his wife as the sole nominee.

Considering the fact and circumstances of the case we are of opinion that the complainant is not entitled to get litigation cost, interest and compensation. Hence,

O r d e r e d

That Consumer Complaint No. 29 of 2009 is decreed in part on contest without costs.

That the complainant is entitled to get Rs. 1, 00, 000=00 (Rs. One Lac) in respect of the policy in question from the O.P.No.1. That the O.P.No. 1 is directed to pay the said amount to the complainant within three (3) months from this date; failing which it will carry interest @ 10% (Ten Per Cent) per annum till realization. That the complainant is not entitled to get any interest over the said amount. That the complainant is not entitled to get compensation and litigation cost.

Let certified copy of this order be supplied to the parties free of charge.

CONSUMER CASE NO. : 26/S/2007 DATED : 29.01.2010.

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 TULU CHANDA,

W/O Late Ashim Chanda

of Aurobinda Pally,

P.O.- Rabindra Sarani, P.S.- Siliguri,

Dist.- Darjeeling.

O.Ps. 1) : THE DIVISIONAL MANAGER,

of New India Assurance Co. Ltd.,

Malhotra Tower, Pradhan Nagar,

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

Dist.- Darjeeling.

2) : GOLDEN TRUST FINANCIAL SERVICES,
Burdwan Road,

P.O. & P.S.- Pradhan Nagar,
Dist.- Darjeeling.
FOR THE COMPLAINANT : Sri Sandip Mandal, Advocate.

FOR THE OP No.1 : Sri Kanak Lal Kundu, Advocate.

FOR THE OP No.2 : Sri Nilay Chakraborty, Advocate.


J U D G E M E N T

This is a case for realization of a sum of Rs.1,00,000/- with compensation.

The complainant’s case in brief is that the husband of the complainant was the policy holder of the OP No.1 through OP No.2 under the Janata Personal Accident Insurance Policy being No.512301/47/02/00175 for the period of 23.05.02 to 22.05.17 for a sum of Rs.1,00,000/-. The said policy was issued by the OP No.1 through the OP No.2



Contd….P/2

-:2:-



and the said policy covers accidental death, loss of limbs, permanent total disablement for the sum as insured of Rs.1,00,000/-. The minor daughter was the nominee of the said policy for which the instant case has been instituted for herself and for her minor daughter as her only legal guardian mother. The husband of the petitioner died on 16.05.06 in a road accident when he was sitting in a Motor Cycle being registration No.WB 74H/3703 as a pillion rider. At the relevant time the said motor cycle was driven by the registered owner, Apurba Sarkar. The said accident took place at NH 31 road near Mongpo Forest Check up at about 10 p.m. The death of the husband of the petitioner took place instantly after the effect of the said accident.

The complainant subsequently intimated the said death news of her husband, the policy holder and lodged a claim along with required documents on 26.05.06 before the OP No.2. After receiving the said intimation the petitioner was directed by the OP No.2 to fill up Claim Form in prescribed form and to produce the original policy certificate and the same was complied with on 13.06.06. The OP No.2 subsequently on 14.06.06 returned the original policy certificate to the petitioner. In spite of repeated request to disburse the assured sum but the OPs did not pay any heed. It is further contended that she is passing her grave days with her minor daughter as because her husband, the policy holder was the sole earning member of her family. But the OP failed to perform their duties. Hence this case supported by affidavit.

The OP No.2/Golden Trust Financial Services contested the case by putting W/V admitting the policy issued by the OP No.2 in favour of the policy holder, the husband of the petitioner and such policy covers the risk of accidental death, loss of limbs, permanent total disablement for the sum assured of Rs.1,00,000/-. It has been further admitted that Kumari Debapriya Chanda, the minor daughter of Ashim Chanda since deceased was the nominee of the said policy and Mrs. Tulu Chanda, the complainant is the legal guardian/mother of the said minor daughter. It has been further contended that according to the Memorandum Of Understanding (MOU) they have been empowered to extend insurance coverage to its members under the said Janata Personal Accident Insurance Policy. New India Assurance Co. Ltd. have an exclusive right and authority to entertain process and settlement of such claim and the OP No.2 has no role to play in settling the claim or payment thereof. It has been further admitted that the complainant informed the accidental death of her husband, the policy holder to the OP No.2 on 26.05.06 with several papers requesting them for making the arrangement to disburse the said insured claim and on their request proper form duly filled up was also submitted by the complainant on 13.06.06 which was subsequently on examination



Contd….P/3

-:3:-



forwarded to the New India Assurance Co. Ltd. on 03.08.06. It has been further contended as the OP No.2 has no direct role in making payment against the claim under the policy and when all the applications coupled with all other documents were sent to the OP No.1 their name is required to be expunged as no purpose will be served impleading the OP No.2 as party to the instant case.

The W/V has been submitted supported by affidavit.

The OP No.1 contested the case by filing 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 complainant never approached to the OP No.1 for settlement of the claim. Even the complainant nor the OP No.2 submitted any information regarding the alleged accident or full particulars to the OP No.1 within the stipulated period in terms of the conditions No.1 and under the said contract the event, if any, takes place is to be informed forthwith by giving notice to the Company and it is also to be intimated within one calendar month with full particulars of the claim but the complainant violated the terms and conditions under the policy. Thereby the claim of the complainant is not payable and entertainable. Under the contract intimation of accident is to be given forthwith. But the complainant did not intimate the same within the stipulated period for which the complainant is not entitled to get any amount under the policy from the OP No.1 due to violation of the terms and conditions as appended therein.

The W/V has been submitted supported by affidavit.

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

1) Is the case maintainable ?

2) Is there any deficiency of service on the part of the OPs ?

3) Is the complainant entitled to get compensation coupled with assured sum under the policy ?

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



Point No.1



This issue has not been pressed by the Ld. Advocate on behalf of the OPs at the time of final hearing. But when there is a specific allegation as to the complainant is not the consumer under the C.P.A., 1986 it is to be considered first.

Section 2(1)(o) defines ‘service’ of any description which is made available to potential users including the facilities in connection with insurance.

Admittedly, the husband of the complainant, Ashim Chanda obtained a policy for



Contd….P/4

-:4:-



a sum of Rs.1,00,000/- through the OP No.2 and when such service was taken/hired on consideration from the OPs they can not now deny the service required to be rendered under the policy. The nature of the denial obviously comes within the purview of ‘consumer disputes’ as provided under Section 2(1)(e) of the said C.P.A., 1986. Thereby the complainant is a ‘consumer’ as provided under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. Denial of service and refusal to pay the assured sum under the policy gives rise to the cause of action for sue against the OPs. Therefore, the case is maintainable in all respects.

Point No.1 is thus disposed of.

Point No.2 – 4.



Admittedly, Ashim Chanda was the policy holder under the OP No.1 and said policy was obtained through the OP No.2.

Be it mentioned here initially the case was disposed of by the predecessor in office on 31.07.2007 on contest and Award was passed against the OP No.1 only against which being aggrieved the OP No.1 preferred first appeal before the Hon’ble State Commission being No.FA/08/10. Subsequently, by order No.13 dated 26.09.08 Hon’ble State Commission was pleased to set aside the said order and sent back to the Forum for granting opportunity to the parties to examine their witness and to decide the case in accordance with law.

Accordingly, as per direction of the Hon’ble State Commission opportunities were given to both the parties to lead evidence in support of their respective claim.

The complainant led evidence as PW No.1 by way of affidavit in chief. She was thoroughly cross examined by the OPs in the form of interrogatories and reply thereto supported by affidavit.

The OP No.1/the Insurance Company also led evidence through one Sri Prasanta Singha as OP W No.1 and he was also cross-examined by the complainant in the form of interrogatories and reply thereto supported by affidavit.

All the parties submitted their respective documents in support of their claim.

The complainant in support her case has submitted several Xerox copy of Policy Certificate from which it reveals that one Ashim chanda was the policy holder of Janata personal Accident Insurance Policy and one Debapriya Chanda stands as nominee describing her as daughter. The document issued by Medical Officer, N.B.M.C. & H speaks that Post Mortem was held on 17.05.06.

Burning Certificate goes to show that the said Ashim Chanda died and dead body of which was brought to S.D. Hospital for the purpose of Post Mortem and there is



Contd….P/5

-:5:-



reference of U.D. Case No.56/06 dated 17.05.06. date of death was intimated by one Anup Dey by application before the Inspector in Charge, Kalimpong dated 19.05.06 wherein date of accident and death of Ashim chanda has already been reflected therein. The case was accordingly registered as Kalimpong P.S. Case No.42/06 dated 19.05.06. Xerox copy of the affidavit sworn by Tulu chanda has also been furnished from which it reveals that there is mention specifically about the relationship in between the herself and Debapriya Chanda wherein it has further categorically mentioned that her minor daughter Debapriya Chanda is the nominee of the above mentioned policy.

Xerox copy of Birth Certificate of Debapriya Chanda has also been filed from which it reveals that date of birth has been noted therein as 22.07.93.

Copy of the letter dated 26.05.06 goes to show that date of death and manner of death of Ashim Chanda has been intimated to Golden Trust Financial Services/the OP No.2 and the same was received on the self same date.

Copy of the claim form goes to show that the said form along with original policy certificate was submitted before the OP No.2 on 13.06.06 and original certificate was returned by the said OP No.2 on 14.06.06. In the reverse page it has categorically been mentioned about the nature of the documents required in future.

The OP No.2 in their W/V categorically stated that all those documents have been sent to the New India Assurance Company Ltd. on 03.08.06. But OP No.1 in their W/V stated that no such document was sent to them by the complainant or the OP No.2 for settlement of the claim under the policy in question.

Be it mentioned here the complainant also furnished Xerox copy of the certified copy of Formal FIR, Seizure List, Charge sheet in support of her claim. On the other hand the OP No.1 annexed a copy of the policy along with their evidence led through one Sri Prasanta Singha (Annesure-A).

The sole defence in the instant case that claim has not been lodged in prescribed form before the OP No.1 within time in terms of the condition as mentioned in the overleaf of the said certificate. The OP No.1 also relied several decisions reported in CPJ 1996 Vol.-III 514; CPJ 2004 Vol.-II 177.

We have gone through the pleadings of the respective parties, materials on record and the decision as relied by the OPs. It is true that the complainant did not furnish any document to show that claim was lodged before the OP No.1. But all the documentary evidence as reflected above support that the complainant submitted all those documents before the OP No.2 just after the incident i.e. 26.05.06 whereas the incident took place on 16.05.06 and the prescribed form was also submitted before the OP No.2 along with



Contd….P/6

-:6:-



original document on 13.06.06 i.e. with one month from the date of death. From the overleaf of the printed certificate stands in the name of Ashim Chanda since deceased, the Policy holder there is a condition in term No.1 that upon the happening of any event which may give rise to a claim under this policy, the insured forthwith give notice thereof to the Company. Unless reasonable cause is shown the insured should within one calendar month after the even which may give rise to a claim under this policy, give written notice to the Company with full particulars of the claim. The said overleaf of the said certificate also contains that intimation of death is to be sent forthwith. Death Certificate, Post Mortem and Police investigation report, Doctor’s certificate are to be sent along with claim form.

In this regard it has also been submitted by the Ld. Advocate on behalf of the OP No.1 that when terms and conditions have not been complied with and when the complainant violated the condition No.1 as stated above, the Insurance Company has no obligation to satisfy the alleged claim under the policy in question. It has already been reflected that the said policy was issued through the Golden Trust Financial Service in favour of the policy holder since deceased. It is evident all those documents were sent to the OP No.2 for making arrangement of the assured sum under the certificate. The OP No.2 categorically stated that all those documents were sent to OP No.1 on 03.08.06 and W/V has been made supported by affidavit. The said OP No.2 did not come forward to submit any documents in support of their contention that all those documents were sent to the OP No.1. Admittedly, under the Memorandum Of Understanding (MOU) the OP No.1 agreed to allow GTFS/the OP No.2 to extend mediclaim insurance cover to their investors and their family members, field workers under the Group insurance scheme.

The purpose of issuing notice is to help the Insurance Company to make enquiry about the alleged incident under the policy. But in fact the complainant has submitted all those documents to the OP No.2. Whether there is any terms and conditions in granting the insurance policy it is not expected to know for the widow of the deceased policy holder and when from the front page of the said certificate there is mention of issuance of certificate through the OP No.2 obviously the complainant lodged complaint before the OP No.2. It is in between the OP No.1 & 2 as to whether all those claim form along with original documents are to be sent to the OP No.1 within one calendar month from the date of event or not it is within the internal affairs between the OP No.1 & 2. But fact remains under the MOU as already reflected above that New India Assurance Company Ltd. having its Head Office at Mumbai gave GTFS authority to extend the scheme of Janata Personal Accident Insurance Policy in favour of their investors and the family



Contd….P/7

-:7:-



members, field workers etc. But no authority was given as it appears from the MOU to the GTFS for settlement of the claim. Their duty is only to collect the premium on behalf of the New India Assurance Co. Ltd. and to send the amount to the Insurance Company who thereby issued all the policies in the name of GTFS. So, under the MOU the status of the GTFS is nothing but mediators and when all the documents were sent to the OP No.1 as per claim of the OP No.2 and made settlement supported by affidavit and when it has not been denied by the OP No.1 specifically that no such documents were received by the Insurance Company on 03.08.06 whether there was any delay or not sending the documents in time or not at all the complainant can not be held responsible for not sending those documents to the OP No.1 and thereby the allegation of violation of the terms and conditions as mentioned by the OP No.1 does not lie against the complainant.

We have gone through the decisions as referred by the OP No.1 as mentioned hereinbefore. It is a settled principles of law that each case is to be decided on its own merits. When the complainant has submitted all the documents to the OP No.2 in time and nature of death of the deceased policy holder has not been denied by the OP No.1 rather all the FIR, Charge Sheet and other documents support the claim of the complainant about the nature of death of the deceased policy holder this Forum is of the view that if there be any latches on the part of the OP No.2 the legitimate claim of the complainant can not be frustrated in the manner as raised by the OP No.1.

Be it mentioned here it has already been reflected above that the complainant has filed the instant case in her personal capacity although submitted Xerox copy of affidavit stating that her daughter Debapriya Chanda was the nominee of that certificate specifically pleaded that the case was filed by her and minor daughter. It is true that the complainant has categorically stated in her evidence while such question was put to her by way of cross-examination that the case has been instituted properly against the OP and she has filed the instant case for herself and on behalf of her minor daughter. Whether the case has not been instituted as representative status on behalf of her minor daughter it is nothing but a mere technical defect for which the claim can not be vitiated. Further more the OP No.1 or OP No.2 did not take specific defence about bad for necessary party and in spite of knowledge about the nominee as minor daughter it has not been specifically pleaded. Evasive denial is no denial in the eye of law. Despite knowledge the OPs have waived such defect of party.

The sole object is to protect the interest of the minor. By virtue of the said Affidavit sworn by the mother it can be ascertained that the mother has no adverse interest against her minor daughter, Debapriya Chanda.



Contd…..P/8

-:8:-



Considering all the facts and circumstances, we are the view that the OP No.1 when issued certificate through OP No.2 under the MOU can not avoid its obligation in discharging their duties to pay the assured sum under the policy in question. Delay on behalf of the OP No.2 in sending the materials/documents or not sending all those documents to them is no ground at all for rejecting the claim of the complainant. Rather under the MOU OP No.1 is bound to pay the assured sum under the policy.

Considering all the facts and circumstances, in the light of the reasoning as stated above the claim of the complainant has been established by cogent evidence but to protect the interest of the minor daughter, Debapriya Chanda, the daughter of the deceased policy holder and the complainant necessary direction is given to the OP No.1 to issue a cheque in respect of the assured sum of Rs.1,00,000/- under the policy certificate in the joint name of Debapriya Chanda and the complainant under the guardianship of Smt. Tulu Chanda, the complainant who is to open an Account in the joint name of herself and her minor daughter in any Nationalized Bank and to operate the same for the interest and welfare of minor daughter.

Further we are of the view that when the claim of the complainant has not been entertained despite issuing policy in favour of the deceased policy holder there is deficiency of service on the part of the OP No.1 causing mental pain, sufferings and harassment to the complainant for which the complainant is further entitled to get a sum of Rs.15,000/-.

Under this facts and circumstances, by virtue of the MOU dated 30.12.1998 in between the New India Assurance Company Ltd and Golden Trust Financial services the complainant is entitled to get relief only from the OP No.1 when under the MOU there is no role to play for satisfaction of the assured sum under the policy certificate by the OP No.2. Therefore, the issues are decided in favour of the complainant in part.

In the result, the complaint succeeds in part.

Hence, it is,

O R D E R E D

that the Consumer Case No.26/S/2007 is allowed on contest in part against the OP No.1/the New India Assurance Company Ltd. with cost of Rs.1,000/- and the case be dismissed on contest against the OP No.2/Golden Trust Financial Services but without any cost.

The complainant is entitled to get an Award of Rs.1,00,000/- towards assured sum.

The complainant is further entitled to get a sum of Rs.15,000/- for mental pain, agony and harassment.

Contd…..P/9

-:9:-



The complainant is further directed to open an Account in any Nationalized bank

in the joint name of her minor daughter, Debapriya Chanda being natural guardian mother and herself so that she can operate the same on behalf of the minor daughter.

OP No.1/the New India Assurance Company Ltd. is directed to pay the awarded sum and the compensation within 45 days from the date hereof with a further direction to issue a cheque in the joint name of the minor daughter, Debapriya Chanda and the complainant so as to enable the complainant to open an Account in any nationalized Bank under the natural guardianship of the complainant, Smt. Tulu Chande on behalf of her minor daughter, Debapriya Chanda.

In default the amount shall carry interest @ 9% per annum from the date of institution of the instant case i.e. 10.04.07 till the realization of the Awarded sum.

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

Complaint Case No.: 1333 of 2008

Date of Inst:11.11.2008

Date of Decision:14.01.2010

Sh.Santokh Singh son of Sh.Didar Singh r/o H.No.1453/20, Phase-XI, SAS Nagar, Mohali.

---Complainant
V E R S U S
The New India Assurance Co. Ltd. through its Branch Manager, SCO No.347-348, Sector 35-, Chandigarh.
---Opposite Party

QUORUM

SHRI LAKSHMAN SHARMA PRESIDENT

SHRI ASHOK RAJ BHANDARI MEMBER



PRESENT: Sh.S.P.S.Dhindsa, Proxy Adv. for complainant.

Sh.Rajesh Verma, Adv. for OP.

---

PER LAKSHMAN SHARMA, PRESIDENT

Sh.Santokh Singh has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OP be directed to release the claim of Rs.71,554/-. The complainant has further prayed that OP be also directed to pay Rs.25000/- as compensation for mental agony and harassment besides costs of litigation

2. In brief, the case of the complainant is that he got insured his Jeep Tempo Trex Cruser bearing registration No.PB-65-F-0475 with OP for assured sum of Rs.4,75,000/- vide insurance cover note No.125024 as “Private Vehicle”. The said policy was valid from 05.04.2007 to 03.04.2008. According to the complainant, the said vehicle (which was being driven by him) met with an accident on 13.12.2007 due to bursting of rear tyre. The vehicle was badly damaged and a DDR No.45 dated 04.01.2008 (Annexure C-2) was registered with the police station to this effect. On the instructions of the investigator, he got his vehicle repaired from Bhambra Motors, Mohali by spending Rs.71,554/-. Thereafter, the complainant submitted his claim along with the relevant documents with OP. According to the complainant, instead of releasing the claim of Rs.71,554/- , OP repudiated the claim vide letter dated 30.07.2007 (Annexure C-4) on the ground that the complainant was not having the route permit on the date of accident. Rejection of the claim, according to the complainant amounts to deficiency in service. In these circumstances, the present complaint was filed seeking the reliefs mentioned above.

3. In the reply filed by the OP, the factum of insurance of the vehicle in question for assured sum of Rs.4,75,000/- vide insurance cover note No.125024 as “Private Vehicle” for the period from 05.04.2007 to 03.04.2008 has been admitted. It has been pleaded that the claim of the complainant was rightly repudiated on the ground that on the date of accident i.e. 13.12.2007, the route permit was not valid whereas the route permit was valid for the period from 24.03.08 to 23.03.2013. It has further been pleaded that the Insurance Ombudsman, Chandigarh vide its order dated 10.09.2008 also observed that the claim of the complainant was rightly dismissed by OP. In these circumstances, according to OP, there is no deficiency in service on its part and the complaint deserves dismissal.

4. We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc.

5. Annexure C-1/A is the certificate of registration of the vehicle in question issued by the District Transport Officer, SAS Nagar, Mohali. From the bare perusal of the same, it is apparent that the motor vehicle in question is a maxi cab and has sitting capacity of 12 persons including the driver. The term maxi cab has been defined in sub section 22 of Section 2 of the Motor Vehicles Act which reads as under:-

“(22) "Maxicab" means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward;”

6 The term “Private Service Vehicle” has been defined in sub section 33 of Section 2 of the Motor Vehicles Act which reads as under:-

“(33) "Private Service Vehicle" means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes;”

7. The term “Transport Vehicle” has been defined in sub section 47 of Section 2 of the Motor Vehicles Act which reads as under:-

“(47) "Transport Vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;”.

8. Section 66 of the Motor Vehicles Act reads as under:-

“NECESSITY FOR PERMITS.

66. Necessity for permits. (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used:


Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorize the use of the vehicle as a contract carriage:



Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not:


Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.


(2) The holder of a goods carriage permit may use the vehicle, for the drawing of any public or semi- trailer not owned by him, subject to such conditions as may be prescribed.


(3) The provisions of sub-section (1) shall not apply—


(a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise;


(b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleansing, road watering or conservancy purposes;


(c) to any transport vehicle used solely for police, fire brigade or ambulance purposes;


(d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses;


(e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety;


(f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in this behalf;


(g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf;


(h) to any transport vehicle owned by, and used solely for the purposes of, any educational institution which is recognised by the Central or State Government or whose managing committee is a society registered under the Societies Registration Act, 1860 (21 of 1860.) or under any law corresponding to that Act in force in any part of India;


(i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms;


(j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other State, without carrying any passenger or goods;


(k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle;


(l) to any transport vehicle used for such purposes (other than plying for hire or reward) as the Central Government may, by notification in the Official Gazette, specify;


(m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination;


(n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify;


(o) to any transport vehicle which is subject to a hire- purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of, the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or


(p) to any transport vehicle while proceeding empty to any place for purpose of repair.


(4) Subject to the provisions of sub-section (3), sub-section (1) shall if the State Government by rule made under section 96 so prescribes, apply to any motor vehicle adapted to carry more than nine
persons excluding the driver”.



9. From the bare perusal of the above said sections of the Motor Vehicles Act, it is apparent that no owner of the vehicle can use or permit the use of such vehicle as a transport vehicle at any public place except in accordance with the terms and conditions of the permit granted by the competent authority. In the present case, even if the vehicle was being used as a ‘Private Service Vehicle’, it needed permit for plying on public place. Admittedly, the complainant was not having any valid permit for use of the said vehicle as Transport Vehicle at public place. In these circumstances, the complainant has violated the terms and conditions of the insurance policy and therefore, his claim has been rightly repudiated by OP keeping in view of the terms and conditions of the insurance policy and provisions of Motor Vehicles Act.

10. Thus, the complainant has failed to make out a case of deficiency in service on the part of OPs. Hence, this complaint is dismissed with no order as to costs. The parties are left to bear their own costs.

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

No. DF(Central)/2010/ Dated:

Complaint No.277/2009

Sh.Subhash Tikoo,

Flat No.-68, Ghalib Apartments,

Parwana Road, Pitampura,

New Delhi. Complainant
Versus.

The New India Assurance Co. Limited,

Divisional Office : 323200

Gulab Bhawan (Rear Block),

6, Bahadur Shah Zafar MArg,

New Delhi-110002. Opposite Party

ORDER
SH.B.B.CHAUDHARY, PRESIDENT.

The complainant has pleaded that he has been availing medical policy bearing No.323200/34/07/11/00001722 from the OP since the year 2001. It was renewed from time to time. The last availed period of the policy was 02.12.2008 to 01.12.2009. On 25.02.2008, the complainant was hospitalized in Fortis Flt. Lt. Rajan Dhall Hospital, Vasant Kunj, New Delhi for the diagnosis of Hypertension, coronary, artery disease and triple Vessel disease and remained under the treatment of the hospital for the period 25.02.2008 to 26.02.2008. He made payment of Rs.28,589/- to the hospital and submitted the bill to the O.P. T.P.A. M/s Vipul Medical Corp. Pvt. Ltd., Gurgaon, for the reimbursement for the payment. He also submitted the cash memo of medicines purchased by him from outside amounting to Rs.5,288/-. Thus, he claimed a sum of Rs.33,867/-.
In spite of reminders and legal notice, dated 03.09.2008, the OP has failed to discharge its obligations and has notreleased the payment.

The complaint has been filed with the prayer to direct the OP to pay Rs.33,867/- with interest @ 18 % till realization of the amount; Rs.50,000/- as compensation towards mental and financial harassment and Rs.11,000/- towards litigation charges.
The OP has filed the reply to the complaint and has opposed the claim. It has been pleaded that as per policy contract, the complainant has been issued mediclaim policy from 02.12.2003 with specific exclusion of hypertension disease and it was continued in further renewals. The complainant was admitted in the hospital and was treated for hypertension, coronary artery disease and triple vessel disease, therefore, he is not entitled for any expenses under the policy. The claim was repudiated vide letter dated 25.02.2008. The legal notice was duly replied vide reply dated 17.02.2009.

The complainant has filed rejoinder. It has been stated that in the policy dated 02.12.2007 to 01.12.2008, the OP did not mention about the particulars and the scope of the diseases to be excluded from the policy.
The complainant has filed evidence by way of his affidavit. The OP has filed evidence by way of affidavit of Sh.R.William, Senior Additional Manager. It has also relied upon the documents exhibits R-1 to RVI i.e. terms and conditions of the policy, copy of the policies for the year 2003 to 2007, repudiating letter dated 25.02.2008 and reply to the notice.

Both the parties have filed their respective written submissions.
We have heard Sh.Kulbhushan Arora, Advocate, Counsel for the complainant and Sh.V.K.Anand, Advocate, Counsel for the OP.

The main question for consideration is “as to whether the diseases of the complainant for which he was hospitalized, are excluded from the policy as per Insurance Policy/ terms and conditions of the Policy?”

The clause 4 of the terms and conditions of the policy as relied upon by the OP, contains the exclusions for which OP shall not be liable to make any payment. The claim has not been repudiated on the ground of pre-existing disease. The clause 4.3 of the terms and conditions of the policy, speaks about the waiving period for specified diseases, ailments and conditions. It says that from the time of inception of the cover, the policy will not cover the following diseases/ ailments/ conditions for the duration shown below. This exclusion will be deleted after the duration shown, provided the policy has been continuously renewed with out Company without any break. The disease hypertension as mentioned at Serial No.-11 and duration of the period, has been shown as two years.

According to the case of the complainant, he has having mediclaim policy of the OP since 2001 and without any break. The OP has not placed on the file, any documents etc. to deny the continuous renewal of the mediclaim policy. Hence, the waiving period for the diseases as mentioned in the clause 4.3, is two years for disease of hypertension. The complainant has placed on the file, his medical record prepared at the Hospital Fortis. It speaks that the complainant, hypertensive, is a known case of coronary artery disease triple vessel disease diagnosed on 29.07.2003 after coronary angiography was done at Escorts Hospital. In the Fortis Hospital, the complainant under went coronary angiography which revealed triple vessel disease. He was treated accordingly and medicines were prescribed. Consequently, it is a matter of record that the complainant was diagnosed as for coronary angiography which revealed triple vessel disease. He was a known case of hypertensive on account of coronary artery disease as per diagnosed in Escort Hospital on 29.07.2003. The mediclaim policy of the complainant is in operation since year 2001. The clause 4.3 speaks about the duration period of two years for exclusion. The aforesaid facts also favour the complainant even after exclusion of period of two years from the date of the policy, is taken into consideration.

In the aforesaid circumstances, the claim could not have been repudiated. There is deficiency of service on the part of OP. It has caused harassment and mental agony and as such the complainant is entitled for compensation also. We allow the complaint and pass the following directions to the OP:

1. The OP shall pay a sum of Rs.33,867/- under the mediclaim policy, to the complainant.

2. To pay a sum of Rs.15,000/- as compensation towards mental harassment and agony.

3. To pay a sum of Rs.5,000/- towards litigation charges.

The amount shall be paid to the complainant within 30 days of the receipt of this order. Otherwise, action can be taken as per provision of Section 25 and 27 of the Act.

Copy of the order be provided to the parties as per provisions of law. The file be consigned to the record room.

Pronounced in the Court on …………………….

Case No.287/09

In the matter of :

M/s. Siddhi,

R/o 22, Pushpanjali, I.P. Extension,

Delhi-110092. …..Complainant

Versus

1. Regional Manager,

The New India Assurance Co. Ltd.,

Regional Office ‘Delhi’

Scope Minar, Laxmi Nagar,

Delhi-110092. ……OP1

2. Branch Manager,

The New India Assurance Co. Ltd.,

Nainital Road, Rudrapur, Uddham Singh Nagar,

Uttrakhand. …….OP2

3. Branch Manager,

The New India Assurance Co. Ltd.,

Delhi Road, Gajraula, UP. …….OP3
O R D E R

T.VIJAYAN, MEMBER

1.0 Complainant’s claim:

The complainant’s Maruti Van vehicle met with an accident on 12.05.2008 at Gajraula and it was having valid insurance coverage from OP for the period from 29.10.2007 to 28.10.2008. OP was duly informed about the accident and the vehicle was towed to authorized service station at Delhi for repairs. As desired by surveyor of OP, necessary claim forms, estimate for repairs and other documents were furnished. After repairs, on 07.10.2008 the complainant submitted bills for Rs.53,480/- towards repair cost and Rs.2500/- towards towing charges. OP settled the claim for Rs.31,350/- only without providing details of Rs.24,630/- disallowed by them. Complainant requested for this detail several time but OP failed to furnish the same. Complainant claims that deduction made by OP was arbitrary, illegal and OP is deficient in their services. Therefore, complainant has approached this Forum to direct OP to release the balance amount of Rs.24,630/- alongwith interest also for payment of compensation of Rs.10,000/- besides litigation cost of Rs.5500/-.

2.0 Written statement of OP:

On filing of the complaint, notices were issued to OPs and OPs submitted their written statement refuting the claims of the complainant. As per them, on receipt of intimation of incident, they deputed Sh. Mahesh Kumar Gupta, Surveyor for the assessment of the loss. The said surveyor after detailed survey, submitted his report dated 15.09.2008 assessing the losses at Rs.32,230/-. The said amount was payable to the complainant subject to deposit of salvage. The towing charges amounting to Rs.1500/- were also allowed by surveyor. The complainant since informed that salvage has been disposed of and amount of Rs.1880/- being value of salvage was deducted. A sum of Rs.500/- towards the excess clause was also deducted and OP paid the amount of Rs.31,350/- in full and final settlement to the complainant.
3.0 Rejoinder and evidence.

Complainant has filed rejoinder to the written statement of the OPs refuting their allegations and also filed evidence by way of affidavit reconfirming their contentions in the complaint. OPs also filed their evidence by way of affidavit reiterating their contentions in the written statement.

4.0 Arguments and analysis of the pleadings:

We have heard the arguments by both the parties and also gone through the records carefully. In evidence, OPs have submitted a copy of report dated 15.09.2008 submitted by Sh. Mahesh Kumar Gupta, Surveyor. We have perused the contents of the report. Surveyor has issued the report without prejudice in respect of cause, nature and accident of loss / damage and subject to the terms and conditions of the insurance policy in question. In his detailed report, he has assessed the net losses at Rs.32,230/- and also allowed towing charges of Rs.1500/-. The complainant has not pointed out any irregularity in the report submitted by surveyor.

5.0 Conclusion and final order:

Since OP has settled the accident insurance claim of the complainant strictly as per assessment of independent surveyor, we do not find any valid reason for us to interfere in the matter. Therefore, the complaint is devoid of merit and is dismissed.

Parties shall bear their own cost on litigation.

Case No. : 74//2009

Date of Inst. : 02/06/2009

Date of decision : 08/01/2010

1. Ramesh Trading Company through Prop. Atul Chopra.

2. Atul Chopra, Prop. Of Ramesh Trading Company, Kothi Road, Nawanshahr. ….Complainants.

Versus

1. New India Insurance Co. Limited Nawanshahr, Branch and office at Nawanshahr.

2. New India Insurance Co. Limited Main Office Phagwara District Kapurthala. ….Respondents

Complaint under the provisions of Consumer Protection Act, 1986

BEFORE: SH. S.M.S.MAHAL, PRESIDENT

SMT. JAGJIT KAUR MANDER, MEMBER

Present: Sh. A.K. Sareen, advocate, counsel for the complainant.

Sh. Atul Kasana, advocate, counsel for the Ops.

S.M.S.MAHAL, PRESIDENT

Atul Chopra (hereinafter called as complainant), has filed this complaint against New India Insurance Co. Limited Nawanshahr, Branch and office at Nawanshahr and New India Insurance Co. Limited Main Office Phagwara District Kapurthala (hereinafter called as Ops No.1 & 2 respectively) for issuance of a direction to the OPs to pay the insurance claim amount of Rs.2,82,500/- along with Rs. 50,000/- as compensation for mental torture and Rs. 25,000/- as litigation cost.

2. The brief admitted facts of this complaint are that the complainant is trading in Pepsi drink, tade like stock, Lay packets , Vodafone recharge, cards. He had got his stocks insured from the Ops for the period from 19/11/2007 to 18/11/2008. On the night intervening 11/12 December 2007, a theft took place in his shop regarding which a report was lodged with the police as well as the OPs. FIR No. 198 dated 12/12/2007 was registered U/s 457/380 IPC. The complainant had lodged a claim of Rs. 2,82,500/- with the Ops. The Ops had appointed a Surveyor to assess the loss who conducted investigation and assessed the loss to the tune of Rs. 2,45,000/- . The claim was alleged to have not been sanctioned by the Ops despite repeated requests. Hence this complaint.

3. In the written version filed by the Op, the maintainability of the complaint was challenged. On merits it was contended that Rajesh Gupta Surveyor and loss assessor deputed by the Ops had assessed the loss and submitted his report. However the claim was to be paid, subject to the condition that the complainant produced the relevant documents as required by the company in order to ascertain the genuineness and the extent of the loss. List of the loss duly certified by the police as well as non traceable report from the concerned police station was demanded from the complainant but it had not been supplied and the matter was kept hanging for want of those documents which were very much necessary for deciding the claim. All other allegations were denied by the Ops and a prayer for dismissal of the complaint was accordingly made.

4. Both the parties have placed on record their respective evidence in the shape of affidavits and other documents.

5. We have considered the oral submissions advanced by the Ld. counsel for the parties and carefully scrutinized the evidence on record.

6. From the written version filed by the OPs, it is abundantly clear that the genuineness of the claim lodged by the complainant with the Ops is not in dispute. It is also evident that the Ops have not repudiated the claim so for. On the other hand, it is contended by the Ops that the documents i.e. list of the lost goods, as well as non-traceable report by the concerned police station was demanded from the complainant but same was not supplied by the complainant to the Ops. Both these documents are claimed to be very much essential for sanctioning of the claim. The perusal of Ex. C-4 copy of the letter dated 11/11/2008 issued by the Ops to the complainant also reveals that the case of the complainant was closed on account of non submission of Zimni records and non traceable report from the concerned police station. The demand by the Ops based upon the report Ex R-7 submitted by Sh. Rajesh Gupta Surveyor and loss assessor where the claim of Rs. 2,54,250/- was recommended subject to the terms and condition of the policy and merits of the case and subject to the condition that the insured produced the list of the loss duly certified by the Police was the part of the FIR. The Ops have also produced Ex R-3 to Ex R-5 letters dated 03/10/2008, 16/09/2008 and 27/08/2008 vide which the aforesaid documents had been demanded from the complainant. Admittedly, the complainant has not supplied these documents to the Ops, so for. In such circumstances, it can not be held that the Ops had refused to sanction the claim of the complainant or there was any deficiency in service by the Ops towards the complainant.

7. In view of the aforesaid facts, the complaint is dismissed with the observation that in case the complainant submits the documents referred above to the Ops, the same shall be considered by the Ops and pass an appropriate order.

8. Parties shall bear their own costs.

9. Copies of this order be sent to the parties as per rules.

10. File be consigned to the record room.

Case No. : 118/2009

Date of Inst. : 17/09/2009

Date of decision : 7/01/2010

M/s Gupta Cement Corporation, Vill. Pojewal, Tehsil Balachaur, Distt. Shaheed Bhagat Singh Nagar, through its working partner Lalit Kum ….Complainant.

Versus

1. The New India Assurance Company Ltd. Banga Road, Nawanshahr, through its Branch Manager

2. The New India Assurance Company Ltd, 4th Floor, Surya Tower, 108 The Mall Ludhiana, through its Regional Manager ….Respondents

Complaint under the provisions of Consumer Protection Act, 1986

BEFORE: SH. S.M.S.MAHAL, PRESIDENT

SMT. JAGJIT KAUR MANDER, MEMBER

Present: Sh. H.L. Suman, advocate, counsel for the complainant.

Sh. Santokh Singh, advocate, counsel for the Ops.

S.M.S.MAHAL, PRESIDENT

M/s Gupta Cement (hereinafter called as complainant) has filed this complaint against the New India Assurance Company Ltd. Banga Road, Nawanshahr, through its Branch Manager and The New India Assurance Company Ltd, 4th Floor, Surya Tower, 108 The Mall Ludhiana, through its Regional Manager (hereinafter called as OP no.1 & 2 respectively)for issuance of a direction to the OP to pay a sum of Rs. Rs.1, 75,000/- towards repair charges of the vehicle along with Rs. 25,000/- as compensation regarding mental pain and loss on account of deficiency in service.

2. The brief admitted facts of this complaint are that the complainant had got insured its vehicle TATA 709, bearing registration no. PB-32/E-2214 from the Ops vide policy no. 360801/31/06/01/00001196 for the period from 14/06/2006 to 13/06/2007. The said vehicle met with an accident on 27/12/2006 and the complainant had submitted a claim with the Ops. Vide letter dated 09/09/2008 the Ops had refused to sanction the claim on the ground that the driving license of Baljinder Singh S/o Gurcharan Singh who was driving the vehicle at the time of accident was take and as such it was a case of ‘No Claim’. The repudiation of the claim by the Ops is stated to be illegal. Hence this complaint.

3. In the written version filed by the Op, the aforesaid facts were not disputed. It was contended that the driver Baljinder Singh S/o Gurcharan Singh who was driving the vehicle was not holding a valid and effective driving license at the time of accident which was breach of the terms and conditions of the insurance policy. The claim therefore was not payable. A prayer for dismissal of the complaint was accordingly made.

4. Both the parties have placed on record their respective evidence in the shape of affidavits and other documents.

5. We have considered the written as well as oral submissions advanced by the Ld. Counsel for the parties and carefully scrutinized the evidence on record.

6. The perusal of Ex C-7 copy of the certificate of insurance clearly describes the persons or class of person entitled to drive the vehicle. It covers any person including ensured provided that a person driving holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license. It also provides that the person holding an effective learner license may also drive the vehicle and such a person satisfies the requirements of Rule 3 of “Central Motor Vehicle Act 1989” In the present case, as per claim submitted by the complainant the vehicle at the time of accident was being driven by Baljinder Singh S/o Gurcharan Singh. The complainant has not placed on record any proof or verification from the concerned licensing authority that the license of Baljinder Singh driver was valid. On the other hand, the Ops have produced Ex R-3 to Ex R-5 verification reports issued by the District Transport Officer, Hoshiarpur indicating that driving license no. 6586/R/06-07 had been renewed in the name of Baljinder Singh S/o Gurcharan Singh resident of village Pallewal Distt. Hoshiarpur and it was valid up to 24/08/2009. These reports further described that the old license no. of the said license was 5870/R/03-04 as well as 7465/R/96-97 in the name of Shiv Kumar S/o Vishvamitar resident of Balachaur District Hoshiarpur. Thus it is clear that the driving license no. 6586/R/06-07 in the name of Baljinder Singh was not the original license and rather it was only renewal of the license bearing no. 5870/06/03-04 and no. 7465/R/96-97 which was issued in the name of Shiv Kumar S/o Vishvamitar. It therefore has to be treated as fake license. Mere renewal can not transform a fake license as genuine. In Oriental Insurance Company Limited VS Prithvi Raj 2008 (2) Apex Courts Judgments 488 The Hon’ble Supreme Court had observed that ‘a fake license can not get its forgery outfit stripped off merely on account of some officer renewing the same with or without knowing it to be forged. It also observed that since the driver’s license was fake the insurance company was liable only for damages to third party property and not the property of the insured’.

7. In view of the aforesaid facts, the repudiation of the claim of the complainant by the Ops was justified and as such there was no deficiency in service towards the complainant by the Ops.

8. As a consequence of the foregoing reasons, the complaint is dismissed, leaving the parties to bear their own costs.

9. Copies of this order be sent to the parties as per rules.

10. File be consigned to the record room.

CONSUMER COMPLAINT No. 15 OF 2009

Between:

Sri Rama Venkataiah S/o Sathaiah, Age: 48 years,

Occ: Business, R/o H.No.1-407/1, Bhongir Road,

Opp: Market Yard, Chityal Village and Mandal, Nalgonda

District.

…Complainant.

AND


1) The Manager, New India Assurance Company Limited,

Branch: 5-6-140/A, Sanghamithra Bank Complex,

2nd Floor, Prakasham Bazar, Nalgonda-508 001.

2) The New India Assurance Company Limited, Regd.and Head

Office, New India Assurance Building, 87, M.G.Road,

Fort, Mumbai-400 001. Represented by its Authorized Signatory.

3) Alankit, Health Care Limited, 1-8/54/1/4, 1st Floor,

Prender Ghast Road, (Near: Food World), Secunderabad-500 003.

Represented by its Authorized Signatory.

…Opposite Parties.

This complaint coming on before us for final hearing on 04-01-2010, in the presence of Sri V.Maraiah, Advocate for the Complainant, and Sri A.Suresh Babu, Advocate for the Opposite Parties No.1 and 2, and Opposite Party No.3 having been set exparte, and on perusing the material papers on record, and having stood over for consideration till this day, the Forum passed the following:

O R D E R
BY Smt.V.APARNA, I/C PRESIDENT


1. This complaint is filed U/S 12 of Consumer Protection Act,

1986, by the complainant stating that his wife Sri Rama Lakshmamma was insured under the Mediclaim Policy by Opposite Parties No.1 and 2

Contd…2

- 2 -

vide Policy No.612801/48/06/20/70000308, Plan period 13-12-2007 to 12-12-2008 and sum assured is Rs.50,000/-. The complainant’s wife was suffered by hernia and she was admitted in Greenlands Hospital, Nalgonda on 24-03-2008, operation was conducted on 25-03-2008. She was discharged from the hospital on 04-04-2008. At the time of treatment she incurred the expenses of Rs.25,706/- towards her treatment, even though she was suffered on 28-05-2008 and admitted in Kamineni Hospital, L.B.Nagar, Hyderabad on 03-06-2008 and on the same day she was discharged from the hospital and died. She incurred Rs.1,03,100/- towards hospital expenses in Kamineni Hospital. On 21-04-2008 the complainant submitted the claim form for Rs.25,706/- along with original receipts and also submitted ECG, Biopsy, prescription and original reports to the Opposite Party No.3 through courier on 13-08-2008. The Opposite Party No.1 intimated on 24-04-2008 to the complainant that the claim has been found inadmissible as per exclusion clause No.4.1 and 4.4.6.

The complainant prays that the Hon’ble Forum may be directed the Opposite Parties to pay the compensation of Rs.20,000/- and to pay the assured sum of Rs.50,000/- with interest at the rate of 19% p.a. from 24-03-2008 along with other benefits and expenditure of Rs.15,000/-.

2. The Opposite Parties No.1 and 2 filed a counter are as follows: The Opposite Parties No.1 and No.2 submits that the complainant’s wife suffered from hernia problem and admitted in Greenlands Hospital, Nalgonda on 24-03-2008 and operation was done on 25-04-2008 and the complainant incurred Rs.25,706/- towards hospitalization and surgery to his wife. They came to know about the letter sent to the complainant with regard to the repudiation of the claim of the complainant. They

Contd…3
- 3 -

denies the other allegations regarding the claim of the complainant. They submit that the complainant and his wife were insured under the Mediclaim Policy in the year 2006 to 2007 and again renewed the said policy from 2007 to 2008 covering the diseases as per the terms and conditions of the said policy. At the time of inception of the said policy the terms and conditions which are part and parcel of the insurance policy is within the knowledge of the complainant. This insurance is a matter of contract between the insured and the insurer. They appointed Opposite Party No.3 as their third party claims administrator, who looks into the matters of any claim, thoroughly and takes decision on the claim. They stated that the complainant’s wife underwent tubectomy operation 20 years ago who subsequently developed incessional hernia for which surgery was done. As per the opinion of the expert it can be noted that the hernia for which surgery was done nothing but to the bulky mass developed at the spot of tubectomy which is pre existing problem. As per the Mediclaim Policy under 4.1, i.e. pre existing diseases/conditions will be deleted after 4 consecutive years of policy period and within two years continuous policy period no claim will be allowed. As per clause 4.3 specified diseases, ailments conditions from the time of inception of the cover. The policy will not cover this particular problem, i.e. hernia and will be covered only after completion of two years of policy period. In this case the claim arose within two years of policy period. For the said reason the Opposite Party No.3 disallowed the claim of the complainant. The Opposite Parties No.1 and 2 submits that it is very clear that there was no deficiency of service on their part at any point of time in repudiating the claim of the complainant and therefore the complaint may be dismissed with costs.

Contd…4
- 4 -

3. The Opposite Party No.2 filed an Adoption Memo, praying the Forum to adopt the counter and affidavit filed by Opposite Party No.1.

4. The complainant filed his affidavit and produced the documents which are marked as Exs.A-1 to A-12. On behalf of the Opposite Parties No.1 and 2 Sri K.Krishna, Senior Branch Manager in the office of Opposite Party No.1 at Nalgonda filed his affidavit and marked Ex.B-1.

5. Now the points that arise for consideration in this complaint are:

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

Opposite Parties?

2) Whether the complainant is entitled the amounts

Claimed for?

3) To what relief the complainant is entitled?

6. POINT No.1: Ex.A-1 is the Family Health Plan Limited Card issued by Opposite Parties No.1 and 2, plan period from 13-12-2006 to 12-12-2007. Ex.A-2 is the Health Care Limited Card, issued by Opposite Party No.3, valid up to 12-12-2008. Ex.A-3 is the copy of Policy issued by the Opposite Parties No.1 and 2 for a sum assured Rs.50,000/-. The policy holder paid the premium amount of Rs.1,832/- and the policy was valid from 13-12-2006 to 12-12-2007. Ex.A-4 is the revival of Janatha Mediclaim Policy. The policy holder paid an amount of Rs.3,236/- towards premium for mediclaim policy for the period from 13-12-2007 to 12-12-2008. Ex.A-5 is the repudiation letter issued by Opposite Party No.1. Ex.A-6 is the claim form and Ex.A-7 is the letter issued by Opposite Party No.3 to the complainant. Ex.A-8 is the Discharge Card issued by Greenlands Hospital, Nalgonda. Ex.A-9 is the Cash Memo and Ex.A-10 is the Bill issued by Kamineni Hospital, LB Nagar, Hyderabad.

Contd…5
- 5 -
Ex.A-11 are courier receipts. Ex.A-12 is the Death Certificate issued by Panchayath Secretary, Gram Panchayath, Chityal. As per the above exhibits, the complainant’s wife Sri Rama Lakshmamma was insured under the Mediclaim Policy by Opposite Parties No.1 and 2 vide Policy No.612801/48/06/20/70000308, Plan period 13-12-2007 to 12-12-2008 and sum assured is Rs.50,000/-. The complainant’s wife was suffered by hernia and she was admitted in Greenlands Hospital, Nalgonda on 24-03-2008, operation was conducted on 25-03-2008. She was discharged from the hospital on 04-04-2008. At the time of treatment she incurred the expenses of Rs.15,100/- towards her treatment, even though she was suffered on 28-05-2008 and admitted in Kamineni Hospital, L.B.Nagar, Hyderabad on 03-06-2008 and on the same day she was discharged from the hospital and died. On 16-04-2008 the complainant submitted the claim form for Rs.25,706/- to the Opposite Parties. The Opposite Parties repudiated the claim of the complainant as per the terms and conditions of the policy.

The conditions of Mediclaim Insurance Policy under Clause No.4.1 and 4.3 reads as follows:

4.1: “Pre-existing diseases/condition: All diseases/conditions, which are pre existing when the cover incepts for the first time (except as shown hereunder). Any complication arising from pre existing disease/ailment/injury will be considered as a part of pre existing condition. This exclusion will b e deleted after four consecutive claim free policy year provided there was no hospitalization of the pre existing disease/ailment/condition/injury during the said four years of insurance with our Company”.

Contd…6
- 6 -

Compulsory Coverage for specific pre existing conditions:

On payment of additional premium, which is compulsory for persons suffering from the pre existing conditions of diabetes mellitus and hypertension these specific pre existing conditions only are covered in the following manner:

1st year


No claim

2nd year


No claim.

3rd year


50% of admissible claim or 50% of the sum insured set for the individual whichever is less.

4th year


75% of admissible claim or 75% of the sum insured set for the individual whichever is less.

5th year


100% of admissible claim or sum insured set for the individual whichever is less.

4.3: Waiting period for specified diseases/ailments/conditions:

From the time of inception of the cover, the policy will not cover the following diseases/ailments/conditions for the duration shown below. This exclusion will be deleted after the duration shown, provided the policy has been continuously renewed with our company without any break.

Name of the Disease/Ailment /Surgery not covered for
Duration
Hernia of all types
Two years.

As per the medical records produced by the complainant it is revealed that the wife of the complainant suffered with hernia problem and she underwent surgery for the said problem in Greenlands Hospital, Nalgonda. The discharge card issued by Greenlands Hospital, Nalgonda

Contd…7

- 7 -

which is marked as Ex.A-8 shows that the wife of the complainant underwent tubectomy 20 years ago and she was being investigated and treated by gynacologists and on keen observation of that medical record it is understood that the wife of the complainant suffered with hernia which was due to the tubectomy done 20 years ago.

As per the conditions of the Insurance Policy under exclusion Clause Nos.4.1 and 4.3 the said hernia problem is not covered, and as per the contract of the said insurance policy the pre existing diseases are covered only after completion of two years of policy period. But, in the present complaint the wife of the complainant suffered from hernia problem within two years from the date of issuance of policy. Therefore, the Opposite Parties have rightly repudiated the claim of the complainant. Hence we hold that there was no deficiency in service on the part of the Opposite Parties No.1 to 3.

7. POINT Nos.2 and 3: In the light of findings under Point No.1, the complaint filed by the complainant is dismissed.

C.C.No.48/2008
Between:
Smt.K.Sailaja, w/o.late Youdister Reddy, age: 45 years, occu:

House wife, r/o.House No.6-3-90, Bank colony, Khammam town

and District.
…Complainant
and

The New India Assurance Company Ltd., Branch office-610902,

D.No.9-3-143, Ist floor, old club Road, near Vinod Mahal,

Khammam Town and District.

…Opposite parties.

This C.C. is coming on before us for final hearing on 19-11-2009; in the presence of Sri.P.Amarchand, Advocate for complainant and of Sri.B.Gangadhar, Advocate for opposite party; upon hearing the arguments and upon perusing the material papers on record, and having stood over for consideration, till this day, this Forum passed the following order:

O R D ER

(Per Sri.K.V.Kaladhar, Member)

1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The brief facts of the complaint are that the complainant is a household women and obtained a policy bearing No.610902/34/07/20/0000128 towards hospitalization and domicillary hospitalization benefit policy from the opposite party by paying a sum of Rs.5,247/- and the policy valid from 28-6-2007 to 27-6-2008.

2. That the complainant had undergone total laproscopic historectomy on 2-10-2007 in Shyamala hospital, Wyra Road, Khammam. The complainant was admitted in the above hospital on 2-10-2007 and discharged on 4-10-2007 a sum of Rs.13,000/- was charged for conducting the operation and the complainant had incurred sum of Rs.5535/- towards diagnostic tests and a sum of Rs.5,518/- towards costs of medicines. In all the complainant incurred a sum of Rs.20,115/-.

3. The complainant had informed the opposite party about her operation and requested to reimburse the amount spent by her, by submitting the claim form. She had submitted all the relevant documents required, but the claim of the complainant remained unattended and the officials of opposite party are giving irresponsible and evasive replies. The opposite parties were no fault of complainant is put to somuch needless pecuniary loss and also physical inconvenience and harassment. As such the opposite party is liable to pay damages to the tune of Rs.30,000/-. Hence, this complaint.

4. Hence, it is prayed that the Hon’ble Forum may be pleased to direct the opposite party to pay a sum of Rs.20,115/- by way of reimbursement towards medical expenses incurred by the complainant and also direct the opposite party to pay a sum of Rs.30,000/- towards damages to the complainant and awarding costs of this C.D.

5. The complainant filed her affidavit along with the following documents;

Ex.A.1 - Xerox copy of policy issued by the opposite party in the name of complainant

Ex.A.2 - Claim form submitted by the complainant to the opposite party along with medical bills Nos.18.

6. On receipt of notice, the opposite party appeared through their counsel and filed counter, denying the material averments made in the complaint and submitted that it is undisputed fact that the complainant had obtained a policy bearing No.610902/34/07/20/ 00000128 towards mediclaim policy and the said policy valid from 28-6-2007 to 28-6-2008. It is also undisputed fact that the complainant had submitted her claim for sanctioning medical expenditure claim as she undergone historectomy on 2-10-2007 in Shymala hospital, at Khammam. At the time of renewal of policy, the policy holder will get cumulative policy. Regarding the case of complainant, she had taken first policy for a period of one year valid from 26-5-2006 to 25-5-2007 vide policy No.610902/48/06/20/70000065. Immediately after completion of the said policy, the complainant has to renew the policy. But the complainant has taken another policy after lapse of 34 days of first policy. As there was a gap of 34 days in taking the second policy, after completion of period of first policy, obtaining the second policy will not come under the meaning of renewal of first policy. The complainant has renewed the policy within time without brake, in view of terms and conditions of policy the complainant will get claim amount from this opposite party. Due to reason of non renewal of policy the opposite party repudiated the claim of the complainant and the same was informed to her by mentioning cause of repudiation. As such there was no deficiency of service on the part of opposite party. The opposite party is not liable to pay the claim of complainant in the light of terms and conditions of mediclaim policy.

7. Hence, it is prayed that the Hon’ble Forum may be pleased to dismiss the complaint.

8. Opposite party filed the following documents.

Ex.B.1 - Policy bearing No.610902/48/06/20/75065 valid from

26-5-2006 to 25-5-2007

Ex.B.2 - Policy bearing No.610902/34/07/20/00000128 valid from 28-6-2007 to 27-6-2008 along with terms and conditions of the medical claim policy.

9. The complainant filed written arguments along with a citation reported in Consumer Reporter Judgments, May 2009 Volume-II (2009) CPJ 282 (NC). Section 21(b) – Insurance – Renewal of policy – Policy expired on 2-8-1994 – New policy issued from 4-8-1994- Reimbursement of hospitalization and surgery claim repudiated – contention, due to break of two days between expiry of old policy and taking of new policy, counting of first year in terms of exclusion clause will start from 4-8-1994, not relatable to earlier policy – contention not acceptable – Words ‘renewal of policy’ used in policy issued on 4-8-1994 – Renewal means continuation of old policy – insurer held liable to reimburse claimed amount with interest.

Whether the second policy taken by the complainant comes under renewal of the policy?

Whether the complainant is entitled to medical reimbursement expenses and damages?

Points:

It is a fact that the complainant had obtained a policy bearing No.610902/34/07/20/00000128 towards mediclaim policy and the said policy valid from 28-6-2007 to 27-6-2008. It is also an admitted fact that the complainant had undergone historectomy operation on 2-10-2007 at Shyamala hospital, Khammam. It is also an admitted fact that the complainant had taken first policy for the period of one year valid from 25-6-2006 to 25-5-2007 vide policy bearing No.610902/48/06/20/75065. It also an admitted fact that the complainant had taken second policy after lapse of 34 days of first policy.

The contention of the opposite party is that after lapse of 34 days the complainant took the second policy and as such cumulative bonus was not given to the second policy. Hence, the second policy was not a renewal policy and it is fresh policy.

The complainant relied on a judgment reported in Consumer Protection Judgments Vol.II 2009 CPJ 282 NC.

We have perused the policies filed by the opposite party and marked as Ex.B.1 and B.2. We have perused the Ex.B.2, which was the second policy issued by the opposite party, three was no mention of renewal policy. The citation filed by the complainant applicable to the renewal of the policy only. Hence, the said citation is not applicable to this case, as the second policy is not renewal policy and it is a fresh policy only. Hence the contention of the complainant cannot be acceptable and the complaint has no merits and liable for dismissal.

Accordingly, the complaint is dismissed.

consumer case(CC) No. 354/2005

BEENA PURUSHOTHAMAN
...........Appellant(s)

Vs.

THE NEW INDIA INSURENCE CO LTD

THE NEW INDIA ASSURENCE CO.LTD
...........Respondent(s)

BEFORE:
1. G Yadunadhan
2. Jayasree Kallat

Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):

ORDER
By Jayasree Kallat, Member:


The petition is filed by Mrs. Beena Purushothaman, wife of Mr. Pallathil Purushothaman, who was working abroad. Complaint is filed on behalf of her husband as a beneficiary and as joint policy holder. As complainant’s husband was a N.R.I. working in Kuwait, he had taken a family insurance policy from the first opposite party under the Pravasi Sureksha Kudumba Arogya scheme with the certificate No. 2000/47/761200/80563(761200). It covered a period of 20-12-2000 to 20-12-2005. While working abroad the complainant’s husband developed a block in the Pelvic Ureteric junction with non-functioning kidney. He returned to Calicut and underwent Nephrectomy on 8-3-2002. Later on he was put under strict medication. Complainant had intimated the first opposite party immediately, there after advancing claim under the policy. The first opposite party repudiated the claim. Complainant had taken Pravasi Sureksha Kudumba Arogya scheme as opposite parties had claimed that this scheme was the most beneficial one to N.R.I. The certificate of insurance clearly shows that the payee under Kudumba Arogya is Mrs. P. Beena, who is the complainant. The opposite party has denied insurance under Kudumba Arogya scheme by saying that the policy does not cover the said scheme. The complainant’s husband had to spend Rs.28443/- for his hospital expenses. This claim was repudiated by the opposite parties. The act of the opposite parties amounts to negligence and unfair trade practice and also opposite party was deficient in their service. The opposite parties are liable to pay compensation to the complainant.
Opposite party filed a version denying the averments in the complaint except those that are expressly admitted. The opposite party admits the fact that Pallathil Purushothaman was covered under the Pravasi Sureksha Kudumba Arogya policy for the period from 21-12-2000 to 20-12-05. The scope of the cover grantedunder the policy is as follows:

1. Section 1. Pravasi Sureksha ) Personal Accident Benefits) to

Mr. Purushothaman and his family members.

2. Section-II. Kudumbarogya (Hospitalisation Benefits)—Nil.

The insured has not availed cover for Kudumbaroghya ie. Cover for hospitalization which is optional under the scheme. To get coverage under Kudumbarogya scheme separate premium has to be paid for different category of persons. Pravasi Sureksha scheme is confined only to the N.R.I. Spouse and children whereas Kudumbarogya scheme can also be extended to the parents of the N.R.I. Pallathil Purushothaman is not entitled to get any benefit under the kudumbarogya scheme as he has not paid the requisite premium for getting benefit under that scheme. Since the complainant’s husband did not sustain any personal accident while in Kuwait the opposite party is not in a position to extend any benefit under the Pravasi Sureksha scheme for which he was insured. The claim of Purushothaman was repudiated basing on the facts stated above. There was no negligence, unfair trade practice or deficiency of service on the part of opposite party. Opposite party is not liable to pay compensation. The complaint is liable to be dismissed with cost to opposite party.

1 The only point for consideration is whether the complainant is entitled for any relief sought in the petition?

Complainant was examined as PW1 and Ext.A1 to a11 were marked on complainant’s side. No oral evidence adduced by opposite party. Ext.B1 was marked on opposite parties’ side.

The case of the complainant is that complainant’s husband was working abroad in Kuwait and had taken family insurance policy from the first opposite party under the Pravasi Sureksha Kudumba Arogya scheme. Policy period covered from 20-12-2000 to 20-12-2005. The compla8inant’s husband had developed block in Pelvic Ureteric Junction and undergone an operation of Nephrectomy on 8-3-02. The complainant had intimated the first opposite party and immediately preferred a claim for the hospital charges. The first opposite party had repudiated the claim. Opposite party had repudiated the claim on the ground that the complainant’s family members were covered only under Pravasi Sureksha insurance scheme which is an accident insurance policy, and Pallathil Purushothaman and his family were not covered under Kudumba Arogya insurance scheme which covers hospitalization benefit. Complainant herself had produced the repudiation letter of the opposite party which is marked as Ext.A8. According to the opposite party the Pravasi Sureksha Kudumbarogya policy has two sections, they are (1) 1. Section 1. Pravasi Sureksha ) Personal Accident Benefits) to Mr. Purushothaman and his family members.Section-II. Kudumbarogya (Hospitalisation Benefits)—Nil. The complainant’s husband had opted for the Pravasi Sureksha ( Personal Accident Benefit) and not Kudumbaroghya hospitalization scheme. Ext.A1 certificate of insurance shows that Section-1 Pravasi Sureksh: P.S.-11 was opted by Purushothaman and paid Rs,.2941/- as premium under P.S.II. The same Ext.A1 certificate of insurance also shows that Kudumbarogya Nil. Which means complainant’s husband had opted only Section-1. Ext.A1 also shows that they are not covered under Kudumbaroghya. Opposite party has produced Ext.B1 document enrollment form which is filled by complainant’s husband. In Ext. B1 the Column (a) Pravasi Sureksha is filled and Col.B Kudumbaroghya left unfilled. Ext.B1 shows that premium was paid under Sec.1 pravasi Sureksha and no premium was paid under Sect.B Kudumbaroghya. On a perusal of the documents Ext.A1, Ext.A8 and Ext.B1 goes to show that complainant’s husband has taken insurance policy under Pravasi Sureksha only. Premium was paid only for Pravasi Sureksha and not for Kudumbaroghya. As early as 2002 opposite party has informed the complainant’s husband that he and his family are covered only under Pravasi Sureksha insurance scheme, which is an accident insurance policy. Since complainant’s husband and family are not covered under Kudumbaroghya insurance scheme which covers hospitalization benefits, the opposite party is not in a position to consider the claim. Ext.A8 produced by the complainant clearly shows this aspect. In Ext.A8 opposite party has also stated that in case complainant’s husband had taken any Kudumbarogya policy they were to be submitted along with policy particulars to enable the opposite party to consider the claim. But the complainant has not taken any steps to show that they have paid premium under the Kudumbarogya hospitalization benefits. Ext.A10 which is issued by the opposite party in 2005 also mentions the same facts by repudiating the claim. From the documents Ext.A1, A8, A10 produced by the complainant and Ext.B1 produced by the opposite party the Forum has come to the conclusion that complainant has not paid any premium under Kudumbarogya scheme, which is for hospitalization benefits. Hence we are of the opinion that the complainant is not entitled to get any relief as sought in the petition.

CC.No.100/2009

Dated of this 27th day of January 2010

Present:

Sri.K.M.Thammaiah President

Sri.D.Shivamahadevaiah Member

Smt.Girija Lady Member

Between:

Kuasar Ulla Khan s/o. Ziaulla Khan,

Aged about 32 years Complainant

R/at No.109, Pipe line “A” Cross,

Near Karnataka Bank,

Yeshwantha Pura

Bangalore-560022

(By Sri.N.C.Gangadhar Shastry, Advocate)


AND

1. The New India Assurance Co. Ltd,

No.47, Gopal complex, II floor,

Bazar Street, Yeshawanthapura,

Bangalore-560022 Opposite parties

2. The New India Assurance Co. Ltd,

Tumkur Cloth house building,

Tumkur cloth house complex,

NH 206, BH Road, Tumkur

(Servicing Address)

(By Sri.K.V.Sudarshan Kumar, Advocate)

ORDER
This is a complaint filed Under Section 12 of the Consumer Protection Act, 1986 (hereinafter called as Act for short)

2. Through this complaint, the complainant prays for an award and order against the Opposite Parties (hereinafter called as the OPs for short) to award a compensation of Rs.6,00,000/- towards damages, loss of income and also for the alleged deficiency of service.



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

It is contended that, he is the RC owner of Lorry TATA-1612 bearing Reg.No.KA-05-B 3405, with chassis No.373043CRQ703721 and Engine No.697D21CRQ721366. He had insured the said vehicle with the OP and the policy was valid from 17-3-2004 to 16-3-2005.



4. It is further contended that, on 11-1-2005, at about 4 PM, his driver Girish was driving the said lorry and same was proceeding towards Sira from Tumkur with a load of cement bags. When the said vehicle reached near Jogihalli village, the said driver drove the vehicle in a rash and negligent manner and caused an accident. Due to the accident, the said lorry was capsized on the left side of the Road and driver/Girish sustained fatal injuries and died on the way of the hospital. The said lorry was severally and completely damaged in the said accident. The gravity of the damages is testified by the documents like IMV report, Mahazar etc.

5. It is further contended that, the said accident was intimated to the OPs and a complaint lodged came to be registered as C.R.No.5/2005. The final report was also filed after investigation by the Kallambella police station, Sira taluk. It is further contended that, after the accident, he had approached the OPs Company with the policy records and sought for settlement of claim. The said policy covered all types of risks. The OPs have refused to settle the claim on flimsy reason that the driver of the lorry had not renewed his driving licence. But the driver of the lorry was having valid driving licence at the time of accident.



6. It is further contended that, the OPs authorities have visited the spot and conducted a survey. The complainant had left the damaged lorry at New India Auto Garage situated at No.46, Tumkur road, Yeshwanthapura, Bangalore for repairs. The said Auto garage has also issued a quotation for repairs to an extent 3,00,000/-. The said vehicle is kept idle for repairs in the said garage till today for paucity of funds. It is further contended that, the complainant had submitted the police records and quotation of the damaged vehicle to the OPs Company and claim form alongwith RC, FC, TC, DL of the driver alongwith policy.


7. It is further contended that, the OPs having the denied the claim had not replied to the request of the complainant for the compensation/insurance claim. As such, the OPs were in default in giving good service to the complainant and in the result, there is deficiency of service from the OPs. The said vehicle was being used for his day to day earning. After the accident of the said vehicle and for non issuance of damaged claims, the said vehicle was exposed to sun, air, light and the damaged vehicle is not fit for repairs and even not fit for scrap. Hence, the complainant claimed compensation of Rs.6,00,000/- for the loss of income incurred due to the said accident.

8. It is further contended that, after the accident, he had filed MVC No.1216/2006 on the file of the Civil Judge (SD), Sira and the same was dismissed on 23-5-2008. Later on, against the Judgement and award, a MFA No.10681/2008 was filed by him before the High Court of Karnataka at Bangalore and same was dismissed on 17-7-2009 with a liberty to approach this consumer forum.

9. It is further contended that, inspite of the insurance coverage and valid policy as on the date of accident, the repudiation of the claim of the complainant is against to law. Thus, he claimed the compensation for the damages caused to the said vehicle. Hence, this complaint.

10. The complainant has filed an application under section 5 of Limitation act to condone the delay if any in filing this complaint.


11. In the sworn affidavit, it is contended that, due to inadvertence or by mistake and due to lack of proper approach by the earlier advocates, the claim petition filed by the complainant was dismissed in MVC No.1216/2006 on the file of the Civil Judge (SD) and Additional MACT at Sira on 23-5-2008 . Further, against the judgment and award of the said MVC, MFA No.10681/2008 was filed by another advocate and it was also dismissed on 17-7-2009. It is further contended that, while disposing the above said MFA, the High Court of Karnataka, Bangalore had clearly indicated that a liberty was given to the complainant to approach the appropriate forum. Immediately, he applied for copy of that order and filed this petition without any unreasonable delay. If this application is allowed, no harm or injury will be caused to the other side. On the other hand, if this application is not allowed, he will be put into great hardship and injury which cannot be compensated by any other means. Therefore, he prays for an order to condone the delay.



12. The OPs who have been notified of the complaint, put in their appearance through their counsel and resisted by the same by filing their written version and objections to the application filed under section 5 of the limitation Act.
13. The gist of the OPs written versions is as follows:

In the common written versions filed by the OPs, it is contended that, the complaint is not maintainable in law or on facts, since the averments are false, baseless and vexatious.

14. This OP while emphatically denying the complaint averment as false and untenable, interalia pleaded that, the complainant had filed the MVC case in No.1216/2006 on the file of learned Civil Judge (SD) and MACT at Sira for grant of compensation of Rs.6,00,000/-. After contest, the above case was dismissed by learned counsel judge (SD) and MACT at Sira and these OPs have taken up a defence that, the driver of the vehicle bearing Reg.No.KA-05-B-3405 had no valid and effective driven license to drive the said vehicle. These OPs have repudiated the claim of the complainant, since they are not liable to pay the compensation towards damages caused if any. It is contended that, in view of the decision passed by the Hon’ble Supreme Court in Civil Appeal No.1102/09 dtd.18-2-2009, this complaint is not maintainable before this Hon’ble forum and is liable to be dismissed in limine.
15. It is further submitted that, aggrieved by the said judgment and award of dismissal, the complainant had filed the MFA in No.1068/2008 before the Hon’ble High Court of Karnataka and the said MFA also came to be dismissed. After failing to succeed in the above courts, the complainant has approached this Hon’ble Forum and as such, the above case is not maintainable before this forum and is liable to be dismissed in limine.

16. It is further submitted that, the complaint is not maintainable, since it is barred by limitation and the affidavit sworn by the complainant in support of the application filed under Section 5 of the Limitation Act are all false and concocted for the purpose of filing this complaint alone. As such, the IA filed by the complainant under section 5 of the Limitation Act is not maintainable and it is liable to be dismissed in limine. Accordingly, they pray for dismissal of the complaint with exemplary costs.

17. In support of the case, the complainant and OPs have filed their affidavits. The documents produced by the complainant came to be marked as Ex.P-1 to 14. We have heard the learned counsel appearing for the parties. We have also examined the materials available on record.



18. The questions that arise for our considerations are:

1. Is the complaint barred by limitation? If so, whether sufficient cause is made out for condoning the delay?

2. Is there any deficiency of service committed by the OPs?

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

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

Point No.1: No

Point No.2: Yes

Point No.3: As per order

REASONS

20. As has been observed by Hon’ble Supreme Court in a decision reported in CTJ 2009 SC (CP) at page 482 “The provision of section 24A of the Consumer Protection Act, 1986, is peremptory in nature and requires a consumer forum to see before it admits a complaint that it has been filed within two years from the date of accrual of cause of action. The forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown”.

21. True, the complainant has not invoked the provision of section 24 A of the CP Act to condone the delay, but maintained the application under section 5 of the Limitation Act. The Act being a beneficial social legislation enacted to provide speedy and inexpensive remedies to the needy, should not be hyper technically dealt with to defeat the very purpose of it. In other words, while considering an application for condonation of delay, the forum should keep in its mind about the theme of providing substantial justice to the parties without being influenced by hyper technicality.

22. It is pertinent to note that, illiteracy, poverty and lack of knowledge are considered to be sufficient grounds for condoning delay in filing the complaint (vide ILR 1997-Kar-571).

23. Keeping these aspects in mind, we carefully read the complaint delay condonation application and the supporting documents; it is crystal clear that, on account of illiteracy and lack of knowledge, the complainant had approached a wrong forum seeking redressal. From the order of the High Court in MFA 10681/2008 dated 17-7-2009, it is clear that the complaint was given liberty to approach the appropriate forum in accordance with law. Therefore, under the circumstance of the case, we hold that, the cause for delay in filing the complaint falls within the ambit of “sufficient cause”. Thus, exercising the power conferred under Section 24A of the Act, we condone the delay in filing the complaint. Accordingly point No.1 is answered.

24. The bone of contention of the OPs in resisting the claim of the complaint is that, as on the date of accident the driver Girish had no valid and effective driving licence to drive the vehicle. Therefore, we shall focus our attention on this issue. The driving licence produced and Ex-P-11 discloses that, he was permitted to drive LMV (light motor vehicle). That licence for issued on 12-9-1994 and periodically it came to be renewed. Admittedly, the accident took place on 11-1-2005. The driving licence was renewed upto 11-9-2006.

25. Further, in the DL, it is seen that, the drive was also authorised to drive heavy transport vehicle w.e.f. 20-12-1996. As indicated earlier the driving licence came to be renewed periodically. That means to say though initially driver Girish was authorised to drive LMV (Light motor vehicle), subsequently, he was also authorised to drive heavy transport vehicle w.e.f. 20-12-1996. When the driving licence was renewed periodically and it was valid as on the date of accident it can not be said that the driver had no valid driving licence and there was breach of policy conditions or contravention of IMV Act. Therefore we find no substance in the contention raised by the OPs.


26. It is relevant to note that, from the contention raised by the complainant, it is seen that, the vehicle has became a scrape and it cannot be repaired. The survey report said to have been conducted by the OPs in assessing the loss is produced nor any scrape material is produced by the parties to assess the actual loss. From the photographs produced by the complainant, it is seen the vehicle in question is totally damaged. From the copy of RC, it is seen that, the vehicle in question was of 1998 model. Therefore, the value of the vehicle gets reduced year by year. From the copy of the insurance marked at Ex-P-10, it is seen that, the insurance coverage was Rs.3,00,000/-. On the basis of depreciation value of vehicle and salvage, we are opinion of that, if 50% of the value of the insurance coverage is allowed as damages, it would meet the ends of justice.


27. In so far as, the loss of income is concerned no acceptable evidence is produced by the complainant to substantiate his claim. Accordingly, we proceed to pass the following:

ORDER

The complaint is allowed in part with costs directing the OPs to pay a sum of Rs.1,50,000/- being the damages caused to the vehicle with costs of Rs.1,000/- within 8 weeks from the date of this order, failing which, the said amount of Rs.1,50,000/- shall carry an interest of 8% per annum from the date of complaint.

Dictated to the stenographer, typed by him, corrected and pronounced on open forum this 27th day of January 2010.

Respected sir,
i had claim regarding the accident of my car before 9-10 months and whose verification is handled by the agent of raigarh office chhttisgarh.but i m not received any claimed amount and also no any response for thr same i had called that agent so many times but there is no response from his side.so that i am very much unsatisfied from the service of new india assurance company.

So i request you to query for the same and give me response as soon as possible.
With regards
ayush agrawal
kharsia
chhattisgarh
mobile no-9713335060