ORDER Date of filing : 04-07-08
Date of order : 22-04-09
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.111/08
Dated this, the 22nd day of April 2009.
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RMADEVI : MEMBER
SMT.P.P.SHYMALADEVI : MEMBER

Dr. Sreekumar.C,
Ruby Speciality Dental Clinic, } Complainant
Near Bus Stand, Trikaripur.
(Adv. P.Narayanan, Hosdurg)

The Manager,
New India Assurance Company Ltd, } Opposite party
Temple Road, South Bazar,
Payyanur.Po.
(Adv. A.C.Ashok kumar, Kasaragod)

O R D E R
SRI.K.T.SIDHIQ, PRESIDENT


The complainant a practicing dentist took a policy from New India Assurance Company Ltd under their Health Plus Medical Expenses Policy. During the subsistence of this policy complainant met with an accident and sustained injuries. Immediately after the accident complainant was taken to a Co-operative Hospital, Payyanur. He returned from hospital quickly on the same day. Again he affected with pain and has gone to KAM Hospital, Cheruvathur and treated there. The doctor advised him to take CT Scan. Then the complainant was removed to Sabha Hospital, Payyanur on the same day. Since the treatment necessitated the assistance of a specialized infrastructure, he continued his treatment from Medical College Hospital, Pariyaram. The complainant had altogether spent a sum of Rs.8000/- by way of medical expenses. Though a claim was preferred before the opposite party it was rejected on flimsy grounds. Hence the complaint alleging deficiency in service on the part of opposite parties in rejecting the claim.


2. According to opposite party the complainant had sustained dislocation of his left shoulder in the accident. He was treated at KAH Memorial Hospital, Cheruvathur on 9-12-07 and discharged on the same day. As per the Health Plus Medical expenses policy hospitalization for a period of less than 24 hours is admissible in case of injury amounting to fracture and not for dislocation since the complainant had sustained only dislocation of the shoulder, the claim is not allowed. Hence there is no deficiency in service on their part.


3. Complainant produced documents that is marked as Exts. A1 & A2. Documents of opposite party is marked as Exts B1 to B9. Both sides heard.
Insurance is a contract by mutual consent and both parties are bound by the stipulations made thereon. The clause 1.4 specifically provides that expenses incurred on hospitalization for minimum period of 24 hours are admissible only to certain specific treatment mentioned in the said clause It no where provides that treatment for dislocation of shoulder less than 24 hours is admissible. That being so the complainant cannot claim a relief that is out side the coverage of the policy issued to him.

ORDER

SMT. BEENA KUMARI. A., MEMBER:


Brief facts of the case are as follows:


The complainant has taken an insurance policy under the Pravasi Suraksha Kudumba Arogya Scheme of the opposite party. The effective date of the policy as per the policy certificate is 12/5/2000. During July 2000 the complainant felt a pain on his left arm. Further the disease of the complainant was diagonised as “Cervical Disc Prolapse C6-C7”. Complainant was admitted in the Medical College Hospital and he had undergone “Anterior Cervical Discectomy C6-C7”. Complainant stated that he had spend more than Rs.50,000/- for his treatment. The complainant submitted that as per the terms and conditions of the policy he is entitled to get the whole expenses incurred for the treatment. Therefore the complainant had submitted the duly filled up Claim Form with the opposite party along with supporting documents required for processing the claim on 1/12/2000. But the opposite party rejected the claim without any basis and contrary to the records produced by the complainant along with the claim form. Complainant submitted that he had suffered much mental agony due to the rejection of his claim by the opposite party and has alleged that there is deficiency in service on the part of the opposite party.


2. The opposite party New India Assurance Co. Ltd filed their version. The main contention raised by the opposite party is that the symptoms of Cervical Disc Prolapse C6-C7 was existing prior to 1 ½ years from the date of consultation ie. 10/10/2000. The symptoms had thus existed prior to the date of proposing the insurance. As per the conditions of the policy issued to the complainant all pre-existing disease/conditions and complications arising there from are excluded from the scope of the policy cover. Exclusion No.VIII.I of the policy states as follows: "Such diseases which have been in existence at the time of proposing this insurance, pre-existing condition means any injury which existed prior to the effective date of this insurance. Pre-existing condition also means any sickness or its symptoms which existed prior to the effective date of this insurance whether or not the insured person has knowledge that the symptoms were relating to the sickness. Complication arising from pre-existing disease will be considered part of that pre-existing condition". For that reasons the opposite party repudiated the claim vide letter dated 5/1/2001. Hence opposite party prayed for the dismissal of the complaint.


3. In this case complainant and opposite party filed proof affidavit. Nobody has been cross examined.
From the side of complainant 6 documents were marked and from the side of opposite party 5 documents were marked.


4. Points that would arise for consideration are:

1. 
   
   1. 
      
      1. 
         
         1. 
            
            1. Whether the complainant had the alleged disease before the commencement of the policy?
            2. Whether the repudiation of the claim by the opposite party is justifiable?
            3. Reliefs and costs?

5. Points (i) to (iii) : In this case the complainant's case is that he is entitled to get the expenses incurred by him for his treatment under the insurance policy issued by the opposite party. The opposite party argued that the complainant is not eligible to get the benefit under the policy because the complainant was having the disease at the time of issuing the policy. To prove his claim complainant has filed proof affidavit and produced 6 documents. The document marked as Ext.P1 is the copy of policy certificate No.2000/47/760702, Ext.P2 is the copy of claim form submitted before the opposite party, Ext. P3 is the treatment certificate of the complainant. Ext.P4 is the copy of letter dated 5/1/2001 of the opposite party. Ext.P5 is the copy of letter dated 6/7/2001 of the complainant with Acknowledgment card. Ext.P6 is the copy of referral O.P card and summary sheet of complainant's treatment at Medical College Hospital, Thiruvananthapuram. The opposite party also filed proof affidavit and produced 5 documents to prove their contentions. Ext.D1 is the copy of policy and its conditions, Ext.D2 are the answers to the questionnaire submitted by the opposite party to Dr. Marthanda Pillai, who treated the complainant. Ext.D3 is the claim repudiation letter dated 5/1/2001. Ext.D4 is the repudiation letter dated 3/9/2001, Ext. D5 is the treatment record of the complainant issued by Dr. Marthanda Pillai, who had treated the complainant.


6. We have carefully examined the documents produced by the complainant and opposite party. Dr. Marthanda Pillai is the doctor who had treated the complainant. Ext.D2 is the answers to the Questionnaire submitted by the opposite party to Dr. Marthanda Pillai. Ext.D2 clearly shows that the complainant was suffering from neck pain, shoulder pain, radicular pain in left arm and was undergoing treatment for the above said complaints for 1 ½ years prior to the date of consultation after arrival in India on 10/10/2000. The symptoms of said disease started prior to the date of proposing the insurance which was on 12/5/2000. As per the conditions of policy Ext.D1, all pre-existing disease, conditions and complications arising there from are excluded from the purview of the policy.
Exclusion No.VIII.I of Ext.D1 policy states as follows:-


"Such diseases, which have been in existence at the time of proposing this insurance. Pre-existing condition means any injury, which existed prior to the effective date of this insurance. Pre-existing condition also means any sickness or its symptoms which existed prior to the effective date of this insurance whether or not the insured person has knowledge that the symptoms were relating to the sickness, complication arising from pre-existing disease will be considered part of that pre-existing condition". Opposite party argued that due to the abovesaid reasons the opposite party was not in a position to consider the claim of the complainant for payment and the opposite party repudiated the claim. Opposite party also submitted that the opposite party is bound to indemnify the complainant/insured only as per the conditions of policy which constitute the contract of insurance. As per the conditions of policy issued to the complainant, the complainant is not entitled to get any amount from the opposite party. We also agree with the argument of the opposite party on the basis of the evidence and documents submitted by the opposite party. From the materials on record we have concluded that the complainant had failed to establish his case. In this case, the contention raised by the opposite party that the disease Cervical Disc Prolapse C6-C7 was existing before 1 ½ years from the date of commencement of the insurance policy has not been proved otherwise by the complainant. But the opposite party has succeeded to prove their contentions. In this case the opposite party has not committed any deficiency in service or unfair trade practice to the complainant. The repudiation of the claim of the complainant by the opposite party is valid and justifiable.


In the result complaint is dismissed.

ORDER

ORDER Speaking through Smt.Meenakshi Kulkarni, Lady Member.

1. This complaint is filed on 30.01.2009 under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the “Act”) against the Opposite Party (in short the OP) for awarding Rs.79,697=00 along with 12% interest, Rs.15,000=00 for mental agony, Rs.5,000=00 for cost of litigation etc.


2. The facts of the case in nutshell as is narrated by the complainant are as follows: The complainant is a Managing Partner cum Dealer of I.B.P. Co. Ltd. and his running a Petrol and Diesel pumps under name and style “Sri. Yalaguresh Petroleum”, near Nidagundi on NH-13 Road. He insured his business with OP under Policy No.670906/48/05/00584 which was valid for a period from 05.08.2005 to 04.08.2006. The said policy covered the risk of money for payment of wages, salaries and the other earnings and the money in the personal custody and also collected by the appointed workers under him. On 21.06.2006 at about 12-30 in the night, some un-known persons entered the premises of the said Petrol Pump and assaulted the employees and the stole a sum of Rs.79,697=00 from the locker and the Cash Counter. The said incident was registered by his Employee Sri.Vijaykumar Jakkannavar in Muddebihal Police Station under the Crime No.136/2006. At the time of giving the said information, the employee was unaware of the cash kept in the Cash Counter and the locker. So, he wrongly submitted the stolen amount in the said incident of Rs.26,000=00 only. He was unaware of the business transaction held on 19.06.2006 from 8-00 AM to 12-00 AM and the said amount being kept in the locker in the office premises. However, he specifically stated at the time of the complaint that the exact amount being stolen from the premises would be revealed only after verifying outlet sale bills and readings of the pumps. Thereafter, on the same day i.e. on 21.06.2006 subsequent complaint was filed before the Police Station by the complainant stating the actual monitory loss caused due to the theft in the said incidence being to the tune of Rs.79,697=00. It was also submitted that the said submission filed before P.S.I. Muddebihal should be taken as part and parcel of the FIR. The Insurance Policy of the complainant covered the risk of indemnity for monitory loss due to robbery, theft and other natural calamities. Hence, the said claim is covered under the Policy. The complainant is an indemnity holder of the said Policy. So he submitted the claim to the OP along with all the necessary documents. On the receipt of the same, OP raised the objection with regard to the banking transaction on the next day of the incident with respect to deposit of the sum of Rs.54,800=00 in the bank and called for the explanation by a letter dated: 05.10.2007. The complainant submitted the same to the OP. However, OP did not act upon the said submission so the complainant issued a legal notice on 30.06.2008 calling upon to pay the loss and settle the claim within stipulated time of 15 days. However, OP did not act upon the same. Hence the complaint.


3. After receipt of the notice, OP Counsel filed the objections. In this, OP totally denies the complaint as false and vexatious. The statement of the complainant that Rs.79,697=00 were stolen on 21.06.2006 and registration of the Police Complaint with the wrong figure of Rs.26,000=00 are totally denied by the OP-Counsel. The OP appointed Mr. Birejdar & Co., Chartered Accountants as an independent Surveyor and Loss Assessor to carry-out the loss caused to the complainant due to the theft. The said Investigation Report was submitted under Report No.6510 dated: 10.07.2007. In this, the loss due to the theft was assessed at Rs.23,624=00. So, OP immediately offered to pay the said actual loss to the complainant. But, the complainant refused and neglected to accept the same. Hence, OP prays to dismiss the complaint with cost.


4. The complainant counsel has filed 20 documents in support of his case which are marked as Exhibit C1 to C20 and OP Counsel has filed only one document in support of his case which is marked Exhibit OP1. Perused all the documents.


5. Both the parties have filed affidavit in lieu of evidence. Now the following points do arise for our consideration in deciding the case. They are: (i) Whether OP has rendered deficiency in service to the complainant entitling him to the claim as is sought for? (ii) What Order?


6. Our Findings to these points are as hereunder: i) Affirmative, ii) As per the operative portion of the Order here below.



7. We shall substantiate our findings on the following: R E A S O N S POINT NO.1: Exhibit C1 is the original Insurance Copy field by the complainant. Exhibit C2 and C13 are the true copy of the FIR. Exhibit C5 is the Spot Panchanama. Perused all these documents. In this, it is seen that Vijaykumar Rayanna Jakkannavar has filed this FIR with Muddebihal Police Station under Crime No.136/2006. In this, he had admitted that the total cash of Rs.26,000=00 is stolen. Exhibit C4 is an additional statement given by the complainant on 21.06.2006 to PSI Muddebihal in support of the original FIR as noted above. Exhibit OP1 is the Investigation Report submitted by M/s Birajdar & Co., Chartered Accountant who is an independent Surveyor and Loss Assessor at Solapur. The main contention in this complaint is towards the loss of actual cash to the tune of Rs.79,697=00 as claimed by the complainant as against assessed by OP to the tune of Rs.23,623.88 which is arrived by the Chartered Accountants appointed by the OP-Company. We perused the additional Statement given by the complainant to the P.S.I. Muddebihal with the Investigation Report of OP. In this, the diesel pump outlet I and II and petrol pump outlet of I and II on 19.06.2006 to 20.06.2006 from 8-00 AM to 8-00 AM are produced in total. There is no dispute among between the parties as to quantity of liters of diesel sold and the cash received. The same tallies with the observations made by the Chartered Accountants on the petrol pump outlet I and II and diesel pump outlet I and II on 19,06.2006 and 20.06.2006 and also of 21.06.2006 from 8-00 AM to 8-00 AM. All the cash entries as is claimed by the complainant are tallying with the corresponding entries made by the Chartered Accountant in his Investigation Report including the cash received from Mr. S.S.Patil towards credit sales recovery on 20.06.2006. The figure arrived by the OP’s investigator for the robbery on the midnight on 20.06.2006 is Rs.23,623.88 after deducting the cash deposited on 21.06.2006 of Rs.54,800=00. For this, an explanation from complainant has stated that the cash which is deposited in given by the complainant the S.B. Account on 21.06.2006 is out of the sale proceeds on 21.06.2006 after the Panchanama and Police Investigation was over. This is out of the sales which started on 21.06.2006 at 8-00 AM in the morning till 3-30 PM. The said explanation was called for by the OP vide letter dated: 12.03.2007 towards in the name of the complainant Exhibit C6. When such explanation is already given by the complainant, there was no need for OP to continue with the deduction of Rs.54,800=00.

The OP should have the settled the claim at Rs.78,423.88 as his arrived by the independent loss and surveyors appointed by themselves. We believe the affidavit of the complainant to this effect because this explanation was given in-writing on 05.11.2007 by the complainant to the quarries raised by the OP himself. The Investigation Report is dated: 10.07.2007. The explanation of depositing the amount of Rs.54,800=00 on 21.06.2006 was submitted by the complainant on 05.11.2007. Under such circumstances, the OP should have considered the said submission and settled the same at Rs.78,423.88 as is arrived by their independent investigator M/s Birajdar and Co., Chartered Accountant. This is because all other transaction including sale of petrol and diesel and deposit of money in the banks, name of the attenders on the petrol pump etc. tally with each other.

On Page No.1 of the said Investigation Report, the documents on which the said Investigation Report is prepared the listed-out. When such a detail investigation is made by a qualifying independent loss assessor, there was no need for OP to doubt on the explanation given by the complainant. If at all OP had any doubt of the said deposit of money on 21.06.2006, OP could have again gone in details about the corresponding document to rule-out the doubt which is not done by the OP. On Page No.2 of the said Investigation Report in column No.3, the presumed explanation for deposit of Rs.54,800-00 is given as under : “It appears that the cash deposited on 21.06.2006 in State Bank of India, Nidgundi Branch Rs.54,800=00 is out of diesel, petrol and oil sales of partly 20.06.2006 and partly 21.06.2006 upto 3-30 pm and only remaining cash balance is lost due to burglary from the pump” With this, it can be seen that it is not confirmed opinion based on the basis of the documentary evidence. This is because all the calculations as seen in the Annexure-A on both the dates i.e. 19.06.2006 and 20.06.2006 totally tally in quantity of liters sold, amount of cash received, amount of cash deposited in the bank and other expenses done in the cash.

The total cash receipts of 20.06.2006 is already deposited and is admitted by the Chartered Accountants. Under such circumstances, the deduction of Rs.54,800=00 only on account of suspicion is wrong especially when the same is explained by the other-side party. The short notes of cash flow admitted by OP’s Expert is as under: Date Name of Attender Sale of Deisel/ Petrol, Oil etc. Cash Collected Cash Deposited Bank Deposit/ Other exps. 19.6.06 Hanumant 2010.60 litres Oil: 578-00 76076.28 7295=00 12931=00 50000=00 6426.50 19.6.2006 Bank LIC Prem. 20.6.2006 Bank 20.6.2006 Bank 19.6.06 Haggi 357.00 Ltrs Petrol 17907.50 2204=00 10000=00 5703.50 19.6.2006 Bank 20.06.2006 Bank 20.06.2006 Bank 20.06.06 Haggi 374.00 Ltrs Petrol Oil 20607.40 550.66 3296=00 500=00 17362=00 20.6.2006 Bank Pigmy Stolen (21.6.06 Bank) 20.06.2006 Vinay 2004.60 ltrs Diesel Oil 75773.38 60.00 14572-00 200=00 61061=88 20.06.2006 Bank Driver Stolen 21.6.2006 Bank The stolen cash shown above is deposited in Bank on 21.6.2006 whereas the theft has already taken place in midnight at 12-30 when it is so, the deposit of Rs.54,800=00 on 21.6.2006 is necessarily out of the sale proceeds of 21.6.2006 from 8=00 AM to 3=00 PM.


8. Hence, we are of the opinion that the deduction of Rs.54,800=00 from the total amount with the pump attendant arrived by the investigation is not legal and not supported by the documentary evidence. This is the deficiency in service rendered by the OP. Hence, we answer to Point No.1 in affirmative.


9. POINT NO.2: The complainant has prayed for Rs.79,697=00 towards the actual loss of money. In the reports submitted by the independent Surveyor and Loss Assessor appointed by the OP-Counsel and this report figures out the loss at RS.78,428=88. This difference is due to 32 liters of petrol used on 19.06.2006 for testing and Gophless. However, we goby the same and in our opinion, the complainant is entitled to Rs.78,428=00 towards the loss of cash on the date of the theft. The complainant also prays for Rs.50,000=00 towards mental agony and Rs.5,000=00 towards cost of litigation. In our opinion, Rs.5,000=00 towards mental agony and Rs1,000=00 towards cost of litigation will meet the ends of justice. In view of the aforesaid discussion, we proceed to pass the following: O R D E R 1) The complaint of the complainant is partly allowed. 2) The OP is hereby ordered to pay 78,428=00 (Rupees seventy eight thousand four hundred twenty-eight) towards theft of cash of the complainant in his business premises within 2 months of passing of this Order, failing which complainant is entitled to interest at the rate of 10% per annum from the date of filing of this complaint, till its entire realization. 3) The OP is also ordered to pay Rs.5,000-00 (Rupees five thousand) towards mental agony & Rs.2,000-00 (Rupees two thousand) towards the cost of this litigation to the complainant. There is no interest towards the mental agony and cost of litigation.

Taj Ahamed Khan s/o. Raheem Khan,
Aged about 32 years, Complainant
Chikkakunhala village,
Kadaba hobli, Gubbi taluk
(By advocate Sri.M.S.Chandrashekharaiah)

AND


The Manager,
New India Assurance Co. Ltd,
Branch office, Opposite party
Tumkur shopping complex,
BH Road, Tumkur
(By advocate Sri.K.V.Sudarshan Kumar)

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 Party (hereinafter called the OP for short) to pay a sum of Rs.1,00,000/- with 12% interest and for such other reliefs.

3. The facts given rise to institute the complaint may be summarized as thus:
It is his case that, the complainant is the R.C. owner of Tempotrax bearing Reg. No.KA-06-B-7722 and insured his vehicle with the OP-insurance company. The policy was valid from 4-10-2007 to 24-8-2008.

4. It is further contended that, the complainant’s vehicle met with an accident on 9-2-2008 at about 8.30 a.m. near Gopalapura gate. The said vehicle had dashed to the road side tree and got damaged. Thereafter, the complainant intimated to the OP-insurance company and he had also submitted a claim form and other relevant documents to the OP-insurance company.

5. It is further contended that, the concerned police have registered a case against the driver of the vehicle in Cr.No.22/2008. Thereafter, the complainant has repaired the vehicle at Bombay Auto Garage, BH Road, Tumkur and the said garage has issued an estimate to the complainant. The said vehicle was parked in the garage for about 3 months.

6. It is further contended that, the complainant was earning at Rs.10,000/- per month from that vehicle. The complainant had made repeated requests and personal representation before the OP to settle the claim, but the OP-insurance company has not settled the O.D. claim of the vehicle involved in the accident. The said vehicle was damaged upto the tune of Rs.1,00,000/- and the complainant has lost the income due to the damages of the vehicle.

7. The complainant has issued a legal notice to the OP and the said notice was served on the OP. But till today the OP- insurance company did not settle the claim nor replied the notice. It is further contended that, the policy issued by the OP-insurance company was valid as on the date of accident and it covered all the risks. Hence, this complaint.

8. The OP who has been notified of the complaint entered appearance through his counsel and resisted the same.

9. The gist of the objections is as follows:
In the objections filed by the OP, it is alleged that, the complaint is not maintainable either in law or on facts as the averments are false, baseless and vexatious and therefore, it is liable to be dismissed in limine.

10. It is further alleged that, the driver of the vehicle bearing Reg. No.KA-06-B-7722 was possessing learner’s licence and he was authorised to drive L.M.V. (N/T) and the said learner’s licence was valid from 31-1-2008 to 30-07-2008. It is further alleged that, on the date of alleged accident, the said driver by name S.Praveen Kumar was driving the vehicle bearing Reg. No.KA-06-B-7722 which is a Maxi-cab, passenger carrying vehicle. The driver of the above said vehicle was not possessing badge issued by the competent authorities to drive the passengers vehicle and as such the complainant is not entitled to claim the damages caused if any to the said vehicle. Since, he has permitted the driver to drive the vehicle intentionally, knowing fully well that the said driver was not possessing valid and effective driving licence and badge to drive the above said vehicle.

11. It is further contended that, after the alleged accident, the OP has instructed the surveyor to conduct the survey and assess the damages if any caused to the vehicle and intimated the same to the complainant for assisting the surveyor for conducting the survey and assessing the damage. Inspite of due intimation by the OP, the complainant has failed to assist the surveyor for assessing the damages. As such the surveyor was unable to submit his report in the said case.

12. It is further alleged that, since the survey report has not yet been received by the OP, the O.D. claim of the complainant is still pending for consideration and the complainant has filed this complaint in a hurried manner, eventhough, the OP has not yet repudiated his claim and as such, the complaint before this Hon’ble Forum is not maintainable. Since there is no cause of action for the filing the complaint, it is liable to be dismissed in limine on that score alone.

13. This OP while emphatically denying all the complaint averments as false and untenable, interalia pleaded that, there is no cause for the complaint, since the OP has not yet repudiated the claim of the complainant and the same is still pending under consideration for want of survey report. As such the complaint is not maintainable and it is liable to be dismissed in limine. Accordingly, he prays for dismissal of the complaint as not maintainable and premature one with exemplary costs.

14. In support of the case, the complainant and the OP have filed their affidavits and the complainant has also pressed into service of several documents. We have heard the learned counsels appearing for the parties. We have also examined the materials available on records.

15. The questions that arise for our considerations are:
1)Is not the complaint maintainable?
2)Is there any deficiency of service by the OP?
3)Is the complainant entitled for the reliefs as claimed?

16. Our findings on the above questions are here under.
Point No.1: Yes
Point No.2: Does not arise for consideration
Point No.3: As per order

REASONS

17. From materials placed on record and the contention of the parties, it is seen that, the claim of the complainant has not yet been repudiated by the OP. It is the case of the opponent that, since no assistance was given to the surveyor to conduct the survey and assess the damages, he could not submit his report. Consequently, the claim of the complainant could not be finalized. As far as this allegation is concerned, there is no denial of the other side. Therefore, it is clear that, the claim of the claimant is still pending before the OP for certain details. Therefore, it is apparently clear that, no cause of action had arisen to the complainant to move this forum. Therefore, we hold the complaint is premature and it is liable to be dismissed. However, it is desirable to give direction to both parties to do the needful for early disposal of the pending issue. Accordingly, we proceed to pass the following:

ORDER

The complaint is dismissed but without costs. However, it is ordered that, the OP shall depute the surveyor to assess the damages of the vehicle without delay and the complainant shall extend his co-operation for assessing the damages of the vehicle. This process shall be done within 4 weeks from the date of this order.

Mr.K.Prabhakar Bhat,
S/o. Late K.Subraya Bhat,
Aged 58 years,
Kakkebettu House,
Kulashekar Post,
Mangalore – 575 005. …….. COMPLAINANT

(Advocate: Sri.Keshav Nandodi).

VERSUS

1. The New India Mutual Benefit Society,
Regd. & H.O: New India Assurance Co. Ltd.,
New IndiaAssuranceBuilding,
87, Mahatma Gandhi Road,
Fort, Mumbai – 400 001,
Represented by its Secretary.

2. The New India Assurance Co. Ltd.,
II Floor, G.H.S.CentenaryBuilding,
G.H.S. Road, Mangalore – 575 001,
Represented by its Divisional Manager.

……. OPPOSITE PARTIES
(Advocate for Opposite Party No.1 & 2: Sri. K.S. Udayanarayana).


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

1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The Complainant submits that he was an employee of New India Assurance Company Limited and was working as senior assistant and he was retired from service on March 2004 while he was serving at Opposite Party No.2 at Mangalore by opting Voluntary Retirement Scheme. The Complainant submits that he was member and subscribing for mutual benefit society Retirement Benefit Scheme (herein after called ‘RBS’) of Opposite Party. He became member of Opposite Party No.1 on 30.12.1987 after he was confirmed in the service of New India Assurance Company Limited.
It is submitted that, as per circular dated 26.2.1982 an amount will be collected Rs.2/- per member at the time of retirement of any member of this scheme and given to the retiring member in early course. As per circular dated 14.4.1982 to extend the benefit of the above scheme to those who leave the company after putting in more than 20 years service, so that the benefit could be extended to persons leaving earlier than the date of retirement and the initial enrollment has been extended from 31.3.1982 to 30.4.1982, whoever enroll on or before 30.4.1982 will be eligible for benefit under the RBS. The above eligibility of benefit available only on completion of 5 years from their date of enrollment. And further submitted that, as per the circular dated 11.9.1986 the above benefit extended to those staffs who have not yet enrolled themselves in the scheme provided they have minimum 15 years of service left in the Company. Those who join the Company after 31.12.1986 also eligible for the benefit of RBS.
It is further submitted that, as per the circular dated 9.10.1999 to avail benefits under RBS the member should have a minimum of 20 years of service in the Company. The newly enrolled members also eligible for the benefits under the RBS even in case of voluntary retirement scheme provided they fulfills the criteria of minimum 6 months membership.
The Complainant submits that, he joined the Company on 30.6.1987 and enrolled as a member of RBS on 30.12.1987 i.e., after 90 days eligibility period as per the circulars. After he joined the Company and enrolled as RBS as member he left with more than 15 years of service i.e., retired in 2004 after putting 17½ years and submitted that the conditions in circular dated 11.9.1986 fulfilled by the Complainant but the Opposite Party No.1 refused to extend the benefits under the said scheme stating that Complainant did not put in total 20 years of service to avail benefits. The Complainant submits that, the refusal on the part of the Opposite Party No.1 is not justified and contended that the service rendered by the Opposite Parties amounts to deficiency and on 29.2.2008 issued a legal notice calling upon the Opposite Party No.1 to extend the benefit but the Opposite Party No.1 failed to pay the benefits and hence the Complainant filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from the Forum to the Opposite Parties to extend the mutual benefit scheme to the Complainant along with compensation of Rs.25,000/- and costs of the proceedings.

2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed separate version.
Opposite Party No.1 taken a plea that this Forum has no territorial jurisdiction to deal with the case as the office of the Opposite Party is at Bombay and that no transaction of whatsoever nature taken place within the jurisdiction of this Forum and submitted that the Complainant is not entitled for the benefits raised by the Complainant. And as per the circular the Complainant is not entitled to avail any benefits and submitted that the service period of the Complainant comes to 16 years, 8 months and 12 days only and not as contended by the Complainant.
And it is further submitted that, the benefit is operative as per the rules operative from time to time and the rules applicable to the Complainant are 20 years of service in the organization and the contribution of RBS for the minimum period of 5 years. Therefore the contention of the Complainant is not sustainable and the circular dated 9.10.1999 which superceded all the earlier circulars and the said circular is for fresh enrollment and not applicable to the Complainant and contended that there is no deficiency and prayed for dismissal of the complaint.
The Opposite Party No.2 also taken a contention that there is no consumer relationship between the Complainant and this Opposite Party and bad for mis-joinder of this Opposite Party. No relief can be attributed to the Complainant from this Opposite Party and submitted that the Complainant has been working with the 2nd Opposite Party is the absolutely incorrect and there was no transition between this Opposite Party and the Complainant at any point of time during his service and prayed for dismissal of the complaint.

3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
(i)Whether the Complainant is a consumer and this Forum has jurisdiction to entertain the complaint and the complaint is bad for mis-joinder of necessary party?

(ii)Whether the Complainant proves that the Opposite Parties have committed deficiency in service?

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






(iv)What order?

4. In support of the complaint, Sri.K.Prabhakar Bhat (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C16 were marked for the Complainant as listed in the annexure. One Sri.Anil Balkrishna Donge (RW1), Trustee of the Opposite Party No.1 and one Sri.Narasimha Prabhu (RW2), working at Opposite Party No.2 filed counter affidavits and answered the interrogatories served on them. Ex R1 to R4 were marked for the Opposite Parties as listed in the annexure. Both the parties produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.
Point No.(ii) to (iv): As per the final order.
Reasons


5. Point No.(i):
It is undisputed fact that, the Complainant last served in Opposite Party No.2 and contributed the membership fee for Retirement Benefit Scheme (herein after called ‘RBS’) was deducted from the salary while he was serving at Mangalore at Opposite Party No.2. Hence the last transaction took place within the jurisdiction of this Forum and hence this Forum has jurisdiction to entertain the complaint. Point No.(i) held in favour of the Complainant.

Point No. (ii) to (iv):
In the instant case, it is admitted that the Opposite Party No.1 is a Mutual Benefit Society situated at Mumbai and Opposite Party No.2 is an Insurance Company situated at Mangalore. The Complainant was an employee of the Opposite Party No.2 and he was working as a Senior Assistant and retired from service on March 2004 while he was serving at Opposite Party No.2 and opted Voluntary Retirement Scheme. The Complainant was member and subscribing for Mutual Benefit Society R.B.S. of Opposite Party. It is also undisputed that the Complainant became a member of Opposite Party No.1 on 30.12.1987 as per circular dated 26.2.1982 an amount collected at the rate of Rs.2/- per member at the time of retirement. And it is also not in dispute that he has enrolled as a member of RB Scheme on 30.12.1987 i.e., after 90 days eligibility period as per the circular. After he joined the Company and enrolled for RBS as member he left with more than 15 years of service and retired in 2004 after putting 17½ years.
From the above admitted facts, it is proved that the Complainant enrolled as a member of RB Scheme on 30.12.1987 and he joined the Company and left with more than 15 years of service and the conditions in the circular dated 11.9.1986 fulfilled by the Complainant. However, we have perused the circular dated 26.2.1982, wherein it is proved that the Opposite Party No.1 stated the retirement benefit scheme for the benefit of the employees of Opposite Party No.2. On careful scrutiny of the above circular, an amount will be collected at the rate of Rs.2/- per member at the time of retirement of any of this scheme to get the benefit. And further we have perused the subsequent circular dated 14.4.1982 the conditions are as follows:-
i.………..the Committee has now decided to extend the benefit of this scheme to those who leave the Company after putting in more than 20 years service, so that the benefit could be extended to persons leaving earlier than the date of retirement.
ii.In the light of the above the last of date for initial enrollment has been extended from 31st March, 1982 to 30th April 1982. Thus, all those who enroll themselves on or before 30th April, 1982 will be eligible for benefit under the R.B. Scheme with immediate effect.
iii.Those joining the Company after 30th April 1982 will have to do so within 90 days of their confirmation/eligibility, and will be eligible for this benefit only on completion of 5 years from their date of enrollment in the R.B. Scheme.

As per the Circular dated 11.9.1986,

i.…….. decided to extend the benefit of R.B. Scheme to those staff members who have not yet enrolled themselves in the scheme provided they have minimum 15 years of service left in the Company.
ii.………………. Those joining the company after 31st December 1986 will have to do so within 90 days of their confirmation/eligibility and will be eligible for this benefit only on completion of 5 years from the date of their enrollment in the R.B.S.

As per Circular dated 9.10.1999,

i.Members should have a minimum 6 months of balance period of service left with the company as on 1st November 1998 and shall close on 31st March 2000.
ii.To avail the benefits under the RBS Scheme, the member should have a minimum of 20 years of service in the Company.
“However, the newly enrolled members shall be eligible for the benefits under RBS Scheme even in case of Voluntary Retirement Scheme of the Company, provided she/he fulfills the criteria of minimum of six months membership under the RBS on the date of his/her enrollment”.

From the above circular, it is made us clear that the Complainant joined the Company and enrolled as RBS as member and he left with more than 15 years of service, the conditions in the circular dated 11.9.1986 also fulfilled by the Complainant. In all the above referred circulars it contain that the benefit will be extended after 5 years of enrollment to RB Scheme. The requirement of minimum of 20 years of service has been superseded by its own circulars of the Opposite Parties. Apart from the above, the Opposite Party No.1 has extended benefits under RB Scheme to several employees who have not fulfilled the condition of 20 years of minimum service in the Company. Even the latest circular dated 9.10.1999 though, according to the Opposite Party No.1 it is only for fresh enrollment, but the criteria fixed is similar to the earlier circulars in order to facilitate the benefits to those who are members for more than 6 months of RBS.
In the instant case after the retirement from the service to avail the benefits under the RB Scheme was refused by the Opposite Party No.1 by stating that the Complainant did not put in total 20 years of service has no bass and there is no condition precedent of 20 years of minimum service to avail the said benefit. By considering the above circulars, we are of the considered opinion that the refusal on the part of the Opposite Party No.1 is not justified and the Complainant is entitled for the RBS benefits and the Opposite Party No.1 is hereby directed to pay the RBS benefits to the Complainant immediately along with interest at the rate of 10% p.a. from the date of his first request i.e., 11.12.2006 till the date of payment and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
As far as Opposite Party No.2 is concerned, there is no deficiency of service on the part of the Opposite Party No.2 hence complaint against Opposite Party No.2 is hereby dismissed.

6. In the result, we pass the following:

ORDER

The complaint is allowed. Opposite Party No.1 is hereby directed to pay the Retirement Benefit Scheme benefits to the Complainant immediately along with interest at the rate of 10% p.a. from the date of his first request i.e., 11.12.2006 till the date of payment and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

Date of Filing:15.12.2008 Date of Order:30.04.2009 BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20 Dated: 30TH DAY OF APRIL 2009 PRESENT Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President. Smt. D. LEELAVATHI, M.A.LL.B, Member. Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member. COMPLAINT NO: 2696 OF 2008 Ashis Kumar, S/o Mukundan, R/at Prabhudas Nivas, Telephone Exchange Road, Madanayakanahalli, 18 K.M, Tumkur-Nelamangala Road, Bangalore-23. Complainant V/S The Branch Manager, The New India Assurance Company Ltd., II Floor, Shankar House, No.1, R.M.V Extension, Mekhri Circle, Bangalore-80. Opposite Party


ORDER By the President Sri. S.S. Nagarale This is a complainant filed under Section 12 of the Consumer Protection Act, 1986 to direct the opposite party to pay Rs.1,35,503/- with interest and compensation. The brief facts of the case are that, the complainant has purchased a H.V.G Goods Carrier Vehicle of Eicher Motors bearing Chassis No.30 BC 4 A 001455, Engine No. E683 CD 4 A 0011574 under hire purchase agreement with M/s Bhairanandan Pagaria & Sons And it is still continued and the same was registered before the RTO and the vehicle numbered as KA-05-C-2316 and the vehicle was insured with the opposite party from the date of purchase till 13th February-2009. On 13/04/2008 the vehicle met with an accident at Palakkad Kerala and in the said accident the vehicle was severally damaged and immediately the complainant intimated to the opposite party about the accident. Later as per the advice of the opposite party a proper claim form was filled and submitted. The total repair charge is of Rs.1,95,503/- and the said amount claimed by the complainant from the opposite party. But after submitting the bills the opposite party has agreed to pay a sum of Rs.1,05,000/. In spite of that the opposite party has released only a sum of Rs.60,000/-. On enquiry the opposite party replied that, the gross vehicle weight is shown in the insurance certificate as 7,475 Kgs instead of 16,200 Kgs. In spite of collecting the entire amount towards the insurance policy the opposite parties have failed and neglected to pay the claimed amount of the complainant. The amount paid by the opposite party is highly arbitrary in nature.

The complainant issued a notice on 07/11/2008 to the opposite party requesting them to pay the entire repair amount as per the claim made by the complainant under policy No.671602/31/07/01/00009494 and the same is rejected by the opposite parties. Hence, the complaint.


2. Notice was issued to opposite parties. Opposite parties put in appearance through Advocate and defence version filed stating that, the issuance of the goods carrying commercial vehicle package policy bearing No.671602/31/07/01/00009494 covering the Eicher vehicle bearing No.KA-05-C-2316 for a sum of Rs.3,00,000/- for the period from 14/02/2008 to 13/02/2009. The vehicle was under hire purchase agreement with M/s Bhairandan Pagaria & Sons. The vehicle met with an accident on 13/04/2008 at 4-00 AM at Palakhad, Kerala. The complainant had incurred repair charges of Rs.1,95,503/- against the estimate of repairs at Rs.2,25,024/- and this opposite party has agreed to pay only a sum of Rs.1,05,000/-. The opposite party has settled the claim for Rs.60,000/- in full and final settlement of the claim for which the complainant has discharged the voucher. The dispute arose due to the carrying capacity of the said vehicle i.e., whether GVW is 7475 Kgs or 16,200 Kgs. The complainant by virtue of purchase of the said vehicle has approached this opposite party on 24/07/2007 to effect the transfer of policy in his favour and has submitted the relevant documents to the effect. The opposite party has passed the transfer endorsement No.671602/31/07/01/83000039 in favour of the complainant up to 13/02/2008. It is submitted that on the contrary it was the mistake on the part of the complainant who has stated that the GVW of the said vehicle is 7475 Kgs. The opposite party has collected the difference in premium of Rs.3,024/- and passed extra endorsement No.671602/31/07/01/83000102 dated 29/08/2008. It is true that they had paid Rs.60,000/- which is not highly arbitrary in nature. It is submitted that the claim was settled for Rs.60,000/- as against the net assessed liability of Rs.80,000/- as a non standard claim at 75% of the admitted liabilities for which the complainant has submitted his consent letter on 15/09/2008. The complainant caused legal notice on 04/11/2008 and the same was replied on 18/11/2008. There is no deficiency of service on the part of the opposite parties. For all these reasons stated above, the opposite parties are prayed to dismiss the complaint.


3. Affidavit evidences of both the parties are filed. Arguments are heard.


4. The points for consideration are:- 1. Whether there was any deficiency in service on the part of the opposite parties? 2. Whether the payment of claim amount on non standard basis by the opposite party is justified?


REASONS




5. It is an admitted case of the parties that the complainant has insured his vehicle No.KA-05-C-2316 with the opposite party. The opposite party by letter dated 18/11/2008 has stated that under policy the gross vehicle weight is shown as 7475 Kgs. There was claim for accidental damage and during survey it was noticed that correct gross weight of the vehicle is 16200 Kgs and not 7475 Kgs for which cover was taken. In view of the above claim is not payable under the policy. However, the claim was settled on non standard basis at 75% of the net liability. The opposite party has paid Rs.60,000/- to the complainant. The complainant has put up claim for Rs.1,95,503/-. The opposite party has committed mistake by stating that the gross vehicle weight was shown as 7475 Kgs in the policy. But in fact the policy has been corrected in respect of gross vehicle weight. The complainant has produced policy No.671602/31/07/01/00009494.

As per this policy, policy issued date was 14/02/2008. Expiry date is 13/02/2009. Endorsement to this policy reads as under:- “Notwithstanding anything contained herein to the contrary, it is hereby declared and noted that the gross vehicle weight of the vehicle under the within mentioned policy should be read as “16200 KGS” and not unladen weight of “7475”. As mentioned in the policy. In consideration whereof an additional premium amount of Rs.3024/-(2691+333 ST) is hereby collected from the insured. All other terms and conditions remain unaltered”. 6. This endorsement made on the policy given effect from 14/02/2008 itself. This fact also has been mentioned in the policy issued by the opposite party. Admittedly the accident in question had taken place on 13/04/2008 that is after the correction of gross vehicle weight and endorsement issued by the opposite party.


Therefore, the thinking of the opposite party that policy mentioned gross vehicle weight as 7475 Kgs is absolutely wrong. It is very unfortunate that the concerned officer or official who verified the documents had not noticed that gross weight of the vehicle had been corrected after collecting additional premium of Rs.3,024/- from the complainant and the company had issued endorsement to that effect and the endorsement has given effect from 14/02/2008 that is from the inception of the policy. The policy period was from 14/02/2008 to 13/02/2009.


During this policy itself the accident had taken place. The settlement of claim by the opposite party on non standard basis is not proper and unjustified one. It is wholly unjustified and illegal to say that the gross weight of the vehicle is mentioned as 7475 Kgs but the correct fact is the gross vehicle weight was mentioned as 16200 Kgs in view of the endorsement and correction to the policy. With regards the claim put up by the complainant for Rs.1,95,503/- the complainant has produced bills of different garage and bills of spare parts purchased from different dealers. It may not be proper to direct the opposite party to pay Rs.1,95,503/- as per the claim based on the bills and vouchers produced by the complainant.


But however the opposite party itself has produced final survey report of Surveyor/Loss Assessor. The Surveyor appointed by the opposite party himself has assessed the loss at Rs.98,427/- after less compulsory deduction and less salvage value. The Surveyor has stated in his report that survey was conducted along with the Divisional Manager, New India Assurance Company Ltd.,. The opposite party in all its fairness could have paid Rs.98,427/- to the complainant as per their own final survey report. The opposite party has given claim of Rs.60,000/- only.


This is absolutely unfair and unreasonable and without any basis. The complainant is definitely entitled to be paid Rs.98,427/- as per the final survey report of Surveyor. However, taking into consideration of payment of Rs.60,000/- by the opposite party, the remaining amount of Rs.38,427/- requires to be paid by the opposite party to the complainant though not the claim of Rs.1,95,503/- put up by the complainant. I am of the opinion that, on the facts and circumstances of the case and taking into consideration of all the documents and final survey report it is fair, just and proper to direct the opposite party to pay balance amount of Rs.38,427/-. Since there is delay in settling the claim the complainant is also entitled for interest for the delayed payment at least from the date of final survey report i.e., from 11/06/2008. Granting interest at 12% p.a. for the delayed payment would be just, fair and reasonable. In the result, I proceed to pass the following:-


ORDER



7. The complaint is allowed. The opposite party is directed to pay Rs.38,427/- to the complainant along with interest at 12% p.a from 11/06/2008 till payment/realisation.

8. The opposite party is also directed to pay Rs.3,000/- towards costs of the present proceedings to the complainant. 9. The opposite party is directed to comply the order within 30 days from the date of this order with intimation to this Forum.

Mrs.N.Kavitha,
W/o. J.Nithyanandam,
C/o Stark Industries,
7G,Kalapatti Road, Coimbatore-35 --- Complainant
Vs.
The New India Assurance Co.Ltd.
11-19,20, Government Arts College Road,
Coimbatore – 641018. --- Opposite Party

This case coming on for final hearing before us on in the presence of M/s.M.Panchapakesan, P.Vijay Raghunath and Mani Advocates for complainant and of Sri.M.N.Manohar Advocate for the opposite party and upon perusing the case records and hearing the arguments and the case having stood over to this day for consideration, this Forum passed the following:
ORDER
Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite party to pay Rs.42,000/- being the balance amount along with interest at 18%p.a., Rs.1,50,000 towards compensation for mental agony and hardship and to pay cost of the proceedings.
The case of the complaint are as follows:
1.The Complainant and her family have been insured with the opposite party under mediclaim policy covering the medical expenses of herself, her husband N.Nithyanandam and two daughters N.Kriuthika and N.Rubika under Policy No.721209/48/85/78674 during the period 25.9.05 to 24.9.06. The complainant has duly paid all the premiums and she is covered for an hospitalization expenses to a tune of Rs.1,00,000 and her husband to a tune of Rs.1,00,000 and her two children for Rs.50,000 each. The complainant underwent a KTP Laser Stapedptomy on her right ear at Vikram Hospital, R.S.Puram, Coimbatore on 8.2.06, incurred an expenses of Rs.72,000 preferred a claim through the 3rd party administrator with all bills and supporting documents. But the complainant was paid only Rs.30,000. The complainant approached the Insurance Ombudsman, Chennai seeking payment of the balance sum of Rs.42,000. In the reply the opposite party contended that the medical insurance policy covers only necessary and reasonable amount of expenses and the charges of Vikram hospital are highly inflated. The opposite party is not a medical expert to decide the necessary treatment. The complainant is entitled to take appropriate treatment from the competent doctor. The complainant is a consumer and the opposite party is a service provider. The complainant has been put to great mental agony and financial constrain due to the negligent and careless handle of her claim by the opposite party. The services of the opposite party having been deficient and the complainant is liable to be compensated. Hence this complaint.

The case of the Opposite parties are as follows:
2. The complainant had taken a policy covering the risk period from 25.9.05 to 24.9.06 which is the 2nd year policy. The complainant preferred a claim for a sum of Rs.72,000 for the expenses incurred for which the complainant underwent a KTP Laser Stapedpdomy on her right ear at Vikram Hospital on 8.2.06.The company will pay necessary and reasonable amount of expenses as would fall under the different heads. The opposite party verified the amounts with a Hospital like KKR ENT hospital, Chennai, RamakrishnaHospital and KovaiMedicalCenterHospital which charges for the same ailment from Rs.30,750 to Rs.21,750. On the basis of this opposite party settled the claim at Rs.30,000. The opposite party is not entitled to file any case for the balance amount. He ought to have returned the amount if he was not satisfied with the amount. Therefore this cannot be termed as deficiency in service.
3. The complainant and opposite party have filed Proof Affidavits along with documents Ex.A1 to A5 was marked on the side of the complainant and Ex.B1 was marked on the side of the opposite party.

The point for consideration is
1.Whether the opposite party has committed deficiency in service?
If so to what relief the complainant is entitled to?

ISSUE 1:
4. The complainant had taken a mediclaim policy covering the risk of the family during the year 2004 to 2005 and renewed his policy for the period from 2005 to 2006. During this period, the complainant underwent a KTP Laser Stepedotomy on her right ear on 8.2.06, after verifying the bills submitted by the complainant the opposite party has sanctioned a sum of Rs.30,000 only. The contention of the opposite party that the policy covers only reasonable and necessary expenses are unfounded and unsustainable.
5. The case of the opposite party is after verifying the bills the opposite party sanctioned a sum of Rs.30,000 against the bills for Rs.72,000 which are necessary and reasonable expenses as per clause 1.2 of the policy conditions.
6. As per clause 1.2 of the policy condition the complainant is entitled to claim a reasonable expenses only. Clause 1.2 says “In the event of any claim becoming admissible under this scheme, the company will pay to the insured person the amount of such expenses as would fall under different heads mentioned below and as are reasonably and necessarily incurred thereof by or on behalf of such insured person, but not exceeding the sum insured in anyone period of insurance”
7. This was also informed by the opposite party to the complainant on 13.4.2008 through Ex.A3 by informing the reason for reduction in claim amount. They are
1.The operative clause of the mediclaim policy inter-alia states that the company will pay necessary and reasonable amount of expenses as would fall under different heads
2.In recent times, we find that the bills of Vikram hospital are highly inflated as compared to the charges of other hospitals for carrying out similar surgery. For example, the amount charged by other hospitals for similar surgery is as under:

MadrasENTHospital Rs.30,750
KKRENTHospital, Chennai 30,000
RamakrishnaHospital, Coimbatore 21,000
Kovai Medical Centre & hospitals 21,750

8. On comparison of the charges levied by Vikram hospital with that of above hospital the charges of Vikram hospital are very much on the higher side in respect of Surgeon fees, assistant surgeon fees etc. So the opposite party has rightly come to the conclusion that the bills raised by Vikram hospital are exorbitant. Comparing the charges of other hospitals for similar treatment, For the above said reason the opposite party has settled the claim at Rs.30,000. The complainant after receiving the amount instead of returning the same preferred this complaint before this Forum. Therefore this cannot be termed as deficiency in service and the opposite party never committed deficiency in service as alleged by the complainant.

9. In the result, this complaint is dismissed. No costs.

Ellath Engineering Pvt. Ltd. Through its Mg. Director,
Smt. Girija Baladevan,
F-5, 4th Floor, Apna Bazar,
Vasco-da-Gama, Goa ….. Complainant

V/s.

1.New India Assurance Co. Ltd.,
Through its Sr. Divisional Manager,
Santa Palagia Building,
1st Floor, Opp. Khalap Mansion,
Vasco-da-Gama, Goa.

2.Manager,
New India Assurance Co.Ltd.,
Divisional Office,
Santa Palagia Bldg.,
1st Floor, Opp. Khalap Mansion,
Vasco-da-Gama, Goa ….. Opposite Parties

Advocate Shri G. Vijaychandran for the Complainant
Advocate Shri Emerico Afonso for the O.Ps

Dated: 30/04/2009

O R D E R

(Per Smt. Kala P. Dalal, Member)

By this Order we shall dispose of the Complaint dated 17.12.2004 filed by the Complainant herein against the Opposite Parties (O.Ps.) herein U/s. 12 of the Consumer Protection Act, 1986.

…2/-
The brief facts of the case are as follows:

I.That the Complainant is a Private Limited Company which is engaged in sub-marine works such as laying and burying of cables on the sea-bed, and the O.P is a subsidiary company of the General Insurance Corporation.

II.That the Complainant had undertaken the offshore cable deployment work of Bimbade point, Mangoor, Vasco-da gama, for the total cost of awarded work plus the cost of the cable was Rs. 3, 11, 12, 700/- (Rs. Three crores eleven lakhs twelve thousand and seven hundred only) and for insuring the said work and material, the Complainant approached the O.P for issuing a contractors all Risk Insurance Policy and paid a sum of Rs. 1, 96, 016/- (Rs one lakh ninety six thousand and sixteen only) on 18/12/2002 vide Cheque No. 635968 drawn on State Bank of India, Vasco.

III.The O.Ps issued a receipt towards the same confirming that a premium was received covering the risk for a sum insured of Rs. 3,11,12,700/- for a period of three months from 18/12/2002 towards the policy no. 141500/44/02/70001.

IV.The Complainant commenced the cable deployments work under good faith. However when some of deployment difficulties were encountered at one of the ranges and on inquiry the Ops were giving evasive answers attributing the delay in issuance of policy.

V.Further the O.P.s vide letter dated 18.02.2003 demanded from the Complainant an additional premium of Rs. 2,95,888/- which was untenable and hence the Complainant requested the O.P. to return the amount of Rs. 1,96,016/- collected as premium.
VI.Since the O.P. did not insure the work and material, nor issued the Policy (the risk cover was for 3 months from 18.12.2002 upto 17.3.2003) nor refunded the money collected towards premium. Therefore the Complainant sent a legal notice dated 13.05.2003, to which the O.P.s not responded.

VII.Based on the said cause of action the Complainant has filed the present complaint with the following reliefs:

a)That the Hon’ble Forum be pleased to direct the O.Ps to compensate the Complainant for the deficiency-in-service and the mental agony caused to them, by paying an amount equivalent to the premium collected i.e. Rs. 1,96,016/-.

b)That the Hon’ble Forum be pleased to direct the O.P. to refund the premium amount of Rs. 1,96,016/- collected under collection No. 1/2002/07452, together with interest @ 18% p.a. which comes to a total of Rs. 2,67,181.76 as on date of filing of this complaint. viz. 17.12.2004.

c)Such other and appropriate reliefs as the Hon’ble Forum may deem fit in the circumstances of the case.
d)Costs.

The O.Ps field their Written Version dated 09.02.2005 inter-alia opposing the case of the Complainant on the following grounds:

1.That the complaint is frivolous, vexatious and does not disclose any cause of action or deficiency-in-service within the meaning of Consumer Protection Act and hence the complaint is liable to be dismissed.

2.The O.P.s allege that though the validity of the policy was from 18.12.2002 to 17.03.2003 or the completion of the project
…4/-
whichever is earlier, there has been no claim whatsoever by the Complainant during the policy period and as such there is no question of any deficiency-in-service by the O.Ps.

3.The O.Ps further allege that the Complainant enjoyed the Insurance Cover for damage to material during the laying of under water cable for the period from 18.12.2002 to 17.03.2003, and as such refund after enjoying the insurance cover is not permissible under Insurance laws, and hence is not liable to refund of the Insurance premium and hence prayed for the dismissal of the complaint with compensatory costs.

On perusal of the record, pleadings, Affidavitory evidence of both the parties and the written submissions, we now proceed to examine the issues arising out of the facts and circumstances of the present case:

1)There is no dispute as to the fact that the Complainant has paid the Insurance Premium amount under Policy No.141500/44/02/70001 and the O.Ps have not issued the policy documents for the sum insured. The Complainant has produced all the relevant documents pertaining to the payment of Insurance Premium and also the legal notice dated 13.05.2003.

2)Even though it is alleged by the O.Ps that they issued a letter holding the Complainant covered for the damages to material whilst laying the cable, we do not agree with this fact, that only issuing the letter of confirmation will be equivalent to issuing policy documents. Moreover the O.Ps instead of issuing policy documents pertaining to premium already paid by the Complainant preferred to demand from the Complainant an additional premium of Rs. 2,95,888/- which itself can be attributed as deficiency-in-service on their part.

3)The Complainant has stated at para no.6 of his Affidavit-in-evidence that “I say that assured by the said letter, we commenced
…5/-
the cable deployment work under good faith. The work covered three ranges viz. SS, MCMV and AR. Deployment at SS Range was completed. However, when some deployment difficulties were encountered at the MCMV Range and enquiries were made as to the Insurance Cover, the O.P. was giving evasive answers attributing the delay in issuance of policy to non-receipt of the same from the Mumbai Office.” This itself proves that they are entitled to the reimbursement of premium amount collected against which no policy document was issued and so no risk was covered.

4)Concerning the interest of 18% claimed by the Complainant it is our opinion that 12% interest would be just and proper and would be effective from the date of filing the claim. Also in our opinion a compensation of Rs. 10,000/- should meet the ends of justice.

Subject to our findings as above, we partly allow the complaint and pass the following Order:

O R D E R

It is hereby Ordered that the O.Ps herein are directed to pay to the Complainant the amount of Rs. 1,96,016/- (Rupees one lakh ninety six thousand sixteen only) with interest at the rate of 12% per annum from the date of filing the claim. The O.Ps are also directed to pay to the Complainant compensation of Rs. 10,000/- (Rupees ten thousand only). There shall be no order as to costs. The aforesaid directions shall be complied with by the O.Ps within 30 days from the date of this Order .

Subodh Desai S/o late Shyamal jee Desai
R/o Plot No.-12, Co-operative Colony, B.S.City.
Versus
1.Divisional Manager, the New India Assurance Co. Ltd.
C-27, City Centre, 1st floor, Sector-IV, B.S.City.
2.M.D. Bokaro Steel Plant, Bokaro Steel City.
Before-
S.M.Alam, President
Vijay Bahadur Singh, Member
Shabnam Praveen, Member

Date of Judgment-: 12 May, 2009
Date of case filing-: 24 August, 2007
-: Judgment:-
Complainant has filed this case against the opposite parties for payment of Rs. 36249.41 besides Rs. 15000/- as compensation and Rs. 3000/- for cost of litigation to him.



2 The case of the complainant in short is that the complainant is a Contractor of Labour supply of Bokaro Steel City, Bokaro. The complainant has got the labours insured under the policy accordingly the complainant has insured his two labours. The opposite party after insurance vide policy No. 540400/41/06/01/00000553 issued certificate of policy against the premium of Rs. 1439/- Plus service tax Rs. 176/- which is valid from 22.11.2006 to 21.02.2007. On 28.11.2006 work at B.S.L. was on progress, in the mean time one labour namely Uday Singh met with an accident in course of his duty, as such he was brought to B.G.H. where he was declared dead. The complainant received a letter on 07.12.2006 that according to Workman Compensation Act. a sum of Rs. 258462.41 sanctioned in favour of the wife of the deceased. The complainant was asked by the opposite party No.2 to deposit the said amount in the office of compensation Officer cum Deputy Labour Commissioner, Bokaro. The complainant on 18.12.2006 issued a cheque vide cheque No. 940189 worth Rs. 258463/- in favour of the D.L.C. Bokaro and deposited the same in the office of D.L.C. Bokaro on 19.12.2006 and got the receipt. The complainant submitted his claim in the office of opposite party No.1 in connection with letter dated 07.12.2006 through which a sum of Rs. 258262/- was to be paid to the deceased wife. However after 7 months on 06.07.2007 the complainant received a cheque No. 012093 of Rs. 222113/- from insurance co. mentioning therein that the said amount is full and final against the claim of the complainant. The complainant surprised to receive the said cheque as because the B.S.L. had directed to deposited Rs. 258461/- and the said amount was to be paid by the opposite party No.1 and as such the complainant contacted the opposite party No.1 but he was told that according to assessment of opposite party No.1 he paid full and final settlement vide cheque No.012093 and now the opposite party No.1 will not get any more, hence the complainant filed the present case for the redressal of his grievances against the insurance co. (o.p.no.1).



3 After issuance of notices, both opposite parties have appeared and filed their separate written statement. The written statement of the opposite party No.2has submitted that the complainant is a contractor of Labour supplier and the deceased was insured with the opposite party No.1. Opposite party No.2 also admitted that deceased Uday Singh was working under M/s Subodh Desai and on 28.11.2006 he met with an accident during the course of discharge of his duty and the same day he died, so far other part of the submission of the complaints are concerned. The opposite party no.2 also admitted them.



4 The written statement of the opposite party No.1 is that the complainant has taken workman compensation policy of his workman vide policy No. 540400/41/06/01/00000553 which was effective from 22.11.2006 to 21.02.2007. The opposite party No.1 admits that after investigation by an independent surveyor deputed by the Insurance Co. The case of the Uday Singh was found correct. The complainant claimed the compensation amount from this opposite party to the tune of Rs. 258463/- which is exorbitant and not legally justified. Under workman compensation Act. 1923 the complainant has computed the compensation amount taking the duty of workman as 30 days instead of 26 days as mention in Muster Roll issued by Bokaro Steel Plant. As per Muster Roll the working day was only 6 day weekly and one day was holiday hence the 26 days in a month were working day as such the opposite party insurance co. has calculated the loss on 26th days basis. Rs. 222113/- as full and final compensation amount and issued a cheque for same amount and sent to the insured by Registered Post and the same has been accepted as full and final settlement. Therefore, the claim of the complainant against this opposite party is entirely false and baseless and is fit to be dismissed. Under facts and circumstances there is no deficiency in service on the part of the insurance co. as because the insurance co. has already paid the actual amount to the complainant insured, hence the present complaint case is not legally maintainable and the complainant is not entitled to get any relief as claimed against this opposite party.



5 perused the case record and documents filed on behalf of the parties. From the perusal of record it appears that deceased Uday Singh was unskilled contractual labour working under M/s Subodh Desai and while he was discharging his duty on 28.11.2006 he met with an accident. He was brought to B.G.H. where he was declared dead. The opposite party No.2 directed the complainant to deposit a sum of Rs. 258463/- in office of Deputy Labour Commissioner cum Compensation Officer, Bokaro to be paid to the widow of deceased Uday Singh. Accordingly the complainant deposited the said amount through a cheque in the office of D.L.C. Bokaro. The complainant, thereafter, submitted claim with the opposite party No.1 for payment of claim amount worth Rs. 258463/- but the opposite party No.1 paid only 222113/- as full and final settlement on the ground that as per the muster roll of the contractual labour only 6 days in a week are working days, as such instead of 30 days in a month, there is 26 days.



6 We, therefore, conclude that the opposite party No.1 insurance co. has to pay the entire amount which had been paid by the complainant under workman compensation Act. The Insurance co. cannot escape from its liability. Therefore, we hold the insurance co. negligent and deficient in service towards the complainant; hence the insurance co. is liable to pay the remaining amount of Rs. 36249.41 to the complainant.



7 Under the facts and circumstances of the case, the opposite party No.1 Divisional Manager, New India Assurance Co. Ltd.C-27, City Centre, 1st floor, sector-IV, B.S.City is directed to pay a sum of Rs. 36249.41 (Rupees thirty six thousand two hundred forty nine and forty one paisa) only within 30 days from the date of this order. The opposite party is further directed to pay Rs. 1000/- (Rupees one thousand) only as compensation to the complainant within 30 days from the date of this order.

1. Smt. Minati Sarkar,
Wife of Late Jiban Kumar Sarkar,
2. Sri Jayanta Sarkar,
Son of Late Jiban Kumar Sarkar,
3. Smt. Jayashree Sarkar,
Daughther of Late Jiban Kumar Sarkar,
4. Smt. Satadal Sarkar,
Wife of Late Nagendra Nath Sarkar,

All are reside at the Village of Sudarshanpur,
Post Office and Police Station of Raiganj
and in the District of Uttar Dinajpur. Complainants.

versus

1. The New India Assurance Company Limited,
Represented by the Divisional Manager,
Berhampore Divisional Office,
37 A, R. N. Tagore Road,
Berhampore, District – Murshidabad. Opposite Party.

Judgment

Date: 20.05.2009.

This Case arises out of a petition of complaint filed Under Section 12 of the Consumer Protection Act, 1986 by the complainants Smt. Minati Sarkar and three others on 03.10.2007 against the opposite party, The New India Assurance Company Limited, Berhampore Division at Murshidabad for passing an order for death claim and compensation as per status and income of the deceased at the tune of Rs.7,50,000.00; by directing the opposite party to pay the amount as claimed in favour of the complainants and any other relief or relives as the Forum think fit and proper.

The complaint story in brief is that the complainant Nos. 1 to 4 are the legal heirs and successors of Late Jiban Kumar Sarkar, who had a private car (TATA Indica) bearing Registration No. WB / 66D – 9024. This vehicle was insured with the opposite party vide policy No. 512901/ 31/ 06/ 01/ 00006176 valid from 17.08.2006 to 16.08.2007.

On 05.12.2006 when Jiban Kumar Sarkar and others were proceeding towards Siliguri by the ill-fated car, he mate with an accident on NH – 31. As a result Jiban Sarkar fatal injuries, which were the ultimate causes of his death. The car in question was being driven by his paid driver at the material point of time. He had a monthly earning of Rs.9,000.00 from his business.

After death of Jiban Sarkar, complainant No. 1, who happens to be the wife of the deceased, submitted a claim before the opposite party/ insurer, but, the opposite party/ insurer did not realize the claim so she has come along with her children before this Forum for redress.

Opposite party/ insurer has contested the complaint by filing a written version. It has been alleged the deceased was the First Party to the insurer contract as the owner of the said vehicle. The policy was not insured for himself and no amount was paid as premium on this account. So the claim made by the complainant is totally out of the subject matter of the policy contract. Deceased not a consumer at all of the benefits provided by the policy in question. Further at the material point of time the vehicle was driven by his paid driver and not by the owner. And this driver had no valid Driving License at the material point of time. The opposite party has also denied that there was deficiency in service on his part. At last it is submitted by the opposite party/ insurer that the complaint be dismissed with cost.

To prove the case, complainants have filed some documents, namely Certified Copy of the F.I.R. of the accident of which the deceased, Jiban Sarkar was the victim; Certified Copy of P.M. Report of the deceased Jiban Kumar Sarkar; copy of the policy in question; Certified Copy of the Charge Sheet and Certificate of Registration Book of the relevant vehicle.

Opposite party/ insurer on the other hand has filed the Certified Copy of the policy in question.

Decisions with reasons:

There is no dispute to the fact that deceased Jiban Kumar Sarkar was a victim of a motor accident. It is also not disputed the vehicle by which he was traveling on the material point of time belong to him. It is further admitted that the vehicle at the material point of time was insured with the opposite party/ insurance company. But what is disputed is the entitlement of the complainant to any claim on the death of the deceased Jiban Kumar Sarkar by virtue of the said motor accident. It has been argued by Ld. Lawyer for the opposite party/ insurer that the insurance policy in question does not cover the risk of death of the owner, because he is a First Party of the contract of the policy where as the insurance company is the Second Party.

Ld. Lawyer for the complainants submits, on the other hand that there is an item in the schedule describing the scope of coverage of the risk. One of the items is very key point to the present case. He draws the attention of this Forum to the item “Compulsory Premium to owner-cum-driver” he does tress on this particular item and according to him the claim of the complainants comes within the purview. But Ld. Lawyer of the opposite party strongly differs to the opinion expressed by Ld. Lawyer for the complainants. In support of his argument he refers number of decisions that include a 2007 AIR SCW 6866, 2007ACJ 821 SC and lastly 2007 ACJ 818 SC. Upon perusing all these decisions one fact does clearly appeared that the scope under Motor Vehicles Act and Consumer Protection Act is different the claim which is to be filed under Motor Vehicles Act shall be investigated by the tribunal as stipulated in the said Act. But where there is no such mention and the matter is involved with a motor accident case, the jurisdiction of Consumer Protection Act will come. In this context we mention here the decision as referred to by Ld. Lawyer for the opposite party and reported in 2007 AIR SCW 6866. It has been observed by the Apex Court that where an Insurance Company may be held to liable to indemnify the owner for the purpose of meeting the object and purport of the provisions of the Motor Vehicle Act, the same may not necessarily in a case where an Insurance Company may refuse to compensate the owner of the vehicle towards his own loss. A distinction must be borne in mind regard in the statutory liability of the insurer visa-a-vis the purport an object sought to be archive by beneficent legislation before a Forum constitute under the Motor Vehicle Act and enforcement of a contract qua contract before a Consumer Forum. So, it is palpably clear where the jurisdiction of the tribunal constituted under the M.V. Act ends the jurisdiction of the Forum comes into operation. As the purpose of the constitution of the Forum is to give relief to the redressed person as leniently as possible the benefit provided by this Act can not be denied to an agreed person. As per the contractual conditions of the policy in question owner of the vehicle in question is also a beneficiary and on his death due to accident his heirs, who are the present complainants here are entitled to enjoy the same benefit. So, owner has a place in the schedule of the policy and according to this schedule owner is entitled to claim Rs. 2,00,000.00 (rupees two lakhs only) as compensation to the maximum against the opposite party/ insurer. So, the case is dispose of with the following order: -

That the complaint case No. 51/2007 is allowed in part on contest without cost against the opposite party/ insurer, The New India Assurance Company Limited.

Complainant will get an award of Rs.2,00,000.00 (rupees two lacs) only.

The opposite party/ insurer shall issue individual Account Payee Chaque of Rs.50,000.00 (rupees fifty thousand only) each in the name of the four complainants within one month from the date of this order, failing which the complainants are in liberty to put the award in execution.

Shri Sham Lal son of Shri Babu Ram resident of village Banal PO Amroh Tehsil and District Hamirpur (HP)

Complainant

Versus

The New India Assurance Company, Kotwali Bazar, Dharamshala, District Kangra (HP) through its Branch Manager.

Opposite party


Briefly stated, the case of the complainant is that he is a registered owner of vehicle TATA LPT 909 (hereinafter referred to as vehicle) bearing registration No.HP-67-0864, which he got insured with the opposite party. It is asserted that on 21.8.2006 during the subsistence of the Insurance Policy the said vehicle met with an accident at Chaunala ( Shrantha Sur) Tehsil Tikker P.S. Rohru, District Shimla. At the relevant time, the vehicle was being driven by the driver namely Sh. Tara Chand son of Shri Babu Ram, resident of village Banal PO Amroh Tehsil and District Hamirpur. Intimation had also been given to the opposite party and that after completing necessary formalities, he (complainant) had lodged his claim to the tune of Rs. 1,25,000/- before the opposite party, but it refused to pay the same. Thus, the action of the opposite party in repudiating the claim of the complainant is nothing but great deficiency in service. 2. The case of the complainant has been resisted and contested by the opposite party by asserting that on receipt of the claim of the complainant, an independent surveyor was appointed who assessed the loss to the vehicle to the tune of Rs. 25165-25 as net loss subject to the terms and conditions of the insurance policy. It is asserted that despite various letters written to the complainant, he had not supplied the copy of registration certificate, fitness certificate, route permit etc. to the opposite party, and for this reason, his claim could not be settled. It has been denied that the complainant had spent a sum of Rs.1,25,000/- on repair of the vehicle.
3. Both the parties adduced evidence by way of affidavits and annexures in support of their contentions. After hearing the learned counsel for the parties, the following points arise for determination:-
1. Whether O.P committed deficiency in service, as alleged? OPC
3. Final order
4. For the reasons to be recorded hereinafter while discussing points for determination, our findings on the aforesaid points are as under:-
Point No.: Decided accordingly.
Final order: The complaint is disposed of accordingly, as pre operative part of the order

REASONS FOR FINDINGS
Point No.1:
5. Learned counsel for the complainant has argued that the opposite party has failed to settle his genuine claim and thus committed deficiency in service.
6. On the other hand, learned counsel for the opposite party has argued that the complainant has failed to supply the requisite documents i.e. copy of registration certificate, route permit of the vehicle etc. to the opposite party, and for this reason, his claim could not be settled. However, the opposite party has assessed the loss of the complainant at Rs.25165-25 paise by appointing independent surveyor. Thus, there is no deficiency in service on the part of the opposite party.
7. From the material on record, it stands established that the vehicle of the complainant during the subsistence of the Insurance Policy had met with an accident. It also stands proved that the Surveyor of the opposite party, vide his detailed report had assessed the loss at Rs.25165-25 paise. We are of the view that the opposite party was under legal obligation to pay the assessed amount to the complainant. Since, the opposite party is providing public utility services; it is not expected from it to deny the genuine claim of the complainant.
8. The plea of the opposite party is that the complainant has not supplied the copy of registration certificate and route permit of the vehicle, and for this reason, his claim could not be settled. On record, the complainant has also not placed on record the copies of said documents. In view of the said backdrop, we are of the view that ends of justice will be met in case the opposite party is directed to pay the assessed amount to the complainant within 30 days after the supply of copy of registration certificate and route permit of the vehicle to the opposite party.
9. So far as the contention of the complainant that a sum of Rs.1,25,000/- had been spent by him on the repair of the vehicle is concerned, the same is rejected being devoid of any force. The complainant has not placed on record, any detailed report of independent Surveyor to prove his such defence. On the contrary the opposite party has placed on record, report of independent Surveyor Annexure OP-2, who vide his detailed report has assessed the loss at Rs.25165-25 paise. The said report of the Surveyor remains un-rebutted on record. Thus, from the material on record, it stands established that the complainant has suffered a loss of Rs. 25165-25. Hence, point No.1 is disposed of accordingly.
10. No other point argued or urged before us.
11. In view of our findings on point no.1 above, the complaint is disposed of accordingly. The opposite party is directed to pay the assessed amount to the complainant within 30 days after the supply of copy of registration certificate and route permit by the complainant. In the peculiar facts and circumstances of the case, there is no order as to cost and compensation.

Shri Satish Kumar S/O Shri Ram Narayan, Resident of Village Shalog, P.O. Sayari, Tehsil Kandaghat, District Solan, H.P.



… Complainant

Versus



The Branch Manager,

The New India Assurance Company Limited,

Bhagra Niwas, The Mall, Shimla-171001.





…Opposite Party.



For the complainant: Mr. L.S. Thakur, Advocate



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



O R D E R:



Pritam Singh (District Judge) President:- This order shall dispose of complaint filed under section 12 of the Consumer Protection Act, 1986. The brief facts of the complaint are that the complainant is owner of Taxi Van bearing registration No.HP-02-0127 which was duly insured with the OP-Company vide insurance policy w.e.f. 15.12.2006 to 14.12.2007, for a sum of Rs.1,33,700/-. It is further case of the complainant that the aforesaid taxi met with a fatal accident on 12.02.2007 during the currency of the aforesaid insurance policy causing extensive loss to vehicle. That the factum of the accident was reported to the Police Station Kandaghat and intimation regarding the accident was also given to the OP-Company Thereafter, the complainant lodged the insurance claim with the OP-Company. But, the OP-Company instead of settling his genuine insurance claim, repudiated the same on frivolous ground. Hence, felling aggrieved and dissatisfied by the act of the OP-Company, the complainant perforce filed this complaint against OP-Company.




2. The OP-Company while filing reply took some preliminary objections regarding maintainability of the complaint, invalidity of the driving licence, etc. On merits, it is alleged by the OP-Company that the driver Rakesh Kumar who was driving the taxi at the time of the accident was not having valid and effective driving licence as the driving licence possessed by the driver on verification was found not having endorsement of LTV. Hence, the insurance claim was rightly repudiated and there being no deficiency in service, the complaint is sought to be dismissed. Thereafter the parties led oral and documentary evidence in support of their claim/counter claim.



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



4. Undisputedly, the vehicle in question, i.e. taxi bearing registration No. HP-02-0127 owned by the complainant was duly insured with the OP-Company and the insurance policy was valid from 15.12.2006 to 14.12.2007. Undisputed facts are that the vehicle in question met with an accident on 12.02.2007 during the currency of the insurance policy and it sustained extensive damages. The complainant accordingly sent intimation in this behalf to the OP-Company and the insurance claim was later on preferred, but instead of settling the insurance claim by the OP-Company, it was repudiated on frivolous ground.



5. However, according to the OP-Company driver Shri Rakesh Kumar who was driving the vehicle in question at the time of the accident was not having valid and effective driving licence as it was not duly endorsed for LTV at the relevant time and as such it was breach of terms of insurance contract, hence the insurance claim was rightly repudiated by them.



6. In this connection, it may be stated that the complainant has relied upon the copy of the route permit, dated 03.01.2004 issued for plying said vehicle. The parties have also relied upon the copy of the driving licence of the driver Rakesh Kumar. As per the contents of this driving licence, it was issued in the first instance for LMV on 30.09.2003 up to 04.05.2027 and subsequently it was endorsed for LTV w.e.f. 02.04.2003. As per the Motor Vehicle Rules, the driving licence endorsed for transport vehicle is admittedly endorsed only for three years at a time. Therefore, as per this endorsement, this driving licence was endorsed for LTV valid from 02.04.2003 up to 01.04.2006. Further, as per the contents of this driving licence endorsement for LTV was subsequently made from 24.03.2007 upto 23.03.2010, whereas the accident of the vehicle in question took place on 12.02.2007. Therefore, during the period of accident, the driving licence of driver Shri Rakesh Kumar was not endorsed for LTV and as such he was not authorized to driver the vehicle in question it being transport vehicle/taxi.




7. Moreover, the OP-Company has placed on record the report of the Investigator, Shri Kamal Narian, (Retd.) (HPS) Annexure R-7 who had been deputed by the OP-Company to verify the validity of the driving licence of the driver Rakesh Kumar who vide this report reported that this driving licence of driver Rakesh Kumar was endorsed for the first time for LTV on 02.04.2003 and thereafter this endorsement was renewed for LTV on 24.03.2007 to 23.03.2010. Therefore, as per the report of the Investigator, the driving licence in question was not endorsed for LTV on 12.02.2007 the date of accident. As such, the driver was not authorized to drive the vehicle in question being LTV at the relevant time.



8. Therefore, from the aforesaid cogent documentary evidence adduced on record by the parties, it is manifest and clear that the driver Rakesh Kumar was not having valid driving licence to drive the vehicle in question at the time of the accident. The law is well settled if the driver is holding driving licence to drive LMV and is not entitled to drive LTV as endorsement for LTV required under section 3 of the Motor Vehicle Act is not made in the driving licence, it being a breach of condition of insurance policy, the insurance company is not liable to indemnify the insured in case of loss sustained by the insured vehicle in accident. Moreover, if the driver was not duly licensed as he had not renewed the driving licence within 30 days as required under section 15 of Motor Vehicles Act. In such case licence is effective only from the date when actual renewal granted and insurance company is justified in repudiating their liability; because if no application for renewal of the driving licence is made within the stipulated period of 30 days and the driving licence is renewed after the expiry of stipulated period of 30 days, the driving licence cannot be effective retrospectively rather it would be effective prospectively from its renewal. As such it being breach of the insurance policy, no liability can be fastened upon the insurance company to indemnify the insured for the loss caused to the insured vehicle in accident. On this point we are supported by the following case law authorities:-

i) I (2008) CPJ 1 (SC) Hon’ble Supreme Court of India, in case New India Assurance Co. Ltd. Versus Prabhu Lal.



ii) II (2006) CPJ-309 N.C. in case Thomas Mathew versus Oriental Insurance Co. Ltd.



iii) II (2006) CPJ 290 Hon’ble HP State Consumer Commission, in case Todar Mal Verma versus United India Insurance Company Ltd.





9. In view of the above discussion, the complaint merits dismissal and it is ordered accordingly. No order as to the costs.

Smt.P.Anuradha Rao, W/o. Atchyuta Rao,
Aged about 41 years, Occ: Business,
R/o. Flat No.205, Kubera Towers,
Narayanaguda, Hyderabad. ……Complainant

And
1. The New India Assurance Co., Ltd.,
New India Assurance building,
87, M.G. Road, Fort, Mumbai – 400001
2. The New India Assurance Co., Ltd.,
Divisional Agent Branch, 9th Floor
Parishrama Bhavan, Basheerbagh,
Hyderabad – 500004.
3. M/s. Alankit Health Care Ltd.,
1-8-54/1/4, 1st Floor, Prnderghost Road,
Near Food World, Secunderabad – 500023. ….. Opposite Parties


O R D E R


1. This is a Complaint filed by the Complainant under section 12 of C.P. Act, 1986, seeking a direction against opposite parties to pay a sum of Rs.42,897/-being the Mediclaim amount, for damages of Rs.1,50,000/- for deficiency in service and for compensation of Rs.1,50,000/- towards physical and mental agony.


2. The case of the complainant as set out in the complaint in brief is that she had obtained a Mediclaim Policy on 04-09-2007 from opposite parties No.1 & 2 through opposite party No.3 by paying the premium amount of Rs.3,915/- covering the period from 04-09-2007 to 03-09-2008.



3. While so, she was admitted in the hospital on 25-09-2007 with severe abdominal pain and was adviced to under go surgery for Cholyestectomy on emergency basis. Accordingly, she underwent the surgery on 28-09-2007. The opposite parties were informed the same to opposite party No.3. She was discharged on 01-10-2007 after payment of the bill amount of Rs.42,897/-.


4. The complainant further pleaded that inspite of repeated reminders and a legal notice, the opposite parties failed to respond to the claim made by the complainant. It amounts to unfair trade practice and deficiency in service. Hence the complaint.


5. Opposite party No.3 remained exparte.


6. Opposite party Nos. 1 & 2 filed a common counter. They admitted issuing of the policy to the complainant. It is pleaded that the complainant suppressed the material fact that she was suffering from stones in gall bladder. However, under the policy, the complainant is not covered. As per clause-4.3, gall bladder stone removal is excluded during the first 2 years of the operation of the policy. So, she is not entitled for the mediclaim amount or the damages or compensation.


7. The complainant filed a reply affidavit stating that as per user guide book issued by Insurance Regulatory Development Authority [IRDA], the policy holders of North Eastern States are not covered for one year for the Cholyestectomy [removal of gall bladder for gall stones]. According to the complainant she being a South Indian is covered under the policy.


7. The points that arise for consideration are:-


1. Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties? and if so, whether the complainant is entitled for reimbursement of the mediclaim amount and also the compensation as claimed for?


2. To what relief?


9. Point No.I:- To substantiate her case, the complainant has chosen to file her evidence affidavit and also relied on Exs.A1 to A16. On the other hand, the opposite parties have chosen to file the evidence affidavit of the Administrative Officer of opposite party No.2 and relied on Ex.B1. Both sides filed separate memos to treat their pleadings and evidence affidavit as their written arguments.



10. There is no dispute that the complainant took a mediclaim policy from opposite party Nos.1 & 2 through opposite party No.3 by paying the necessary premium amount for the period from 04-09-2007 to 03-09-2008. There is also no dispute that the complainant was admitted in a Specialty Hospital on 25-09-2007 and underwent a surgery called Cholyestectomy [removal of gall bladder for gall stones] on 28-09-2007.

The documents relied on by her are not in dispute. All her documents disclose that she took the policy by paying the necessary premium and underwent surgery for removal of gall bladder stones 3 weeks later. She paid the bill amount of Rs.42,897/-. The dispute is with regard to the entitlement of the complainant for reimbursement of the amount spent. The opposite parties raised 2 objections viz., that the complainant suppressed the fact of her suffering from the disease while taking the policy and secondly that as per clause – 4.3 of the policy conditions enclosed to Ex.B1, she is not entitled for reimbursement for a period of 2 years for the stones in the gall bladder. According to the opposite parties the waiting period for the disease of stones in the gall bladder is 2 years.



11. The Learned Counsel for the complainant, relying on Ex.A16, the user guide book as on 01-06-2007, issued by opposite party No.3, contended that the policy holders of North Eastern States alone are not covered for the first year in respect of the disease of stones in the gall bladder. It is the contention of the complainant that she is a South Indian and as such she is covered by the policy for Medical reimbursement.


12. As seen from the note in Ex.A16, the user guide book issued by IRDA, for the first year, the policy holders of North Eastern States are not covered by Cholyestectomy etc.,. It means to say that the policy holders of North Eastern States are covered by Cholyestectomy ever since after the first year. It does not mean that the policy holders of South India are covered by Cholyestectomy even during the first year of the policy.

As per clause-4.3 of the policy conditions, the waiting period for stones in gall bladder is 2 years [vide clause-4.3 Sl.No.17]. This clause makes it clear that the policy holders complaining of stones in the gall bladder and those who undergo Cholyestectomy [removal of gall bladder for gall stones] are excluded from making the claim for 2 years from the time of inception of the policy. So, the complainant is not entitled to claim the mediclaim amount.


13. In the light of the finding in para supra, it is not necessary to discuss the point raised by the opposite party regarding suppression of the disease by the complainant, while taking the policy. However, since that such an objection is also raised, we feel it ‘just’ to answer this objection also. The initial burden is on the complainant to establish that the complainant was suffering from the disease in question as on the date of taking of the policy and that she deliberately suppressed the same.

They have not chosen to file any evidence affidavit or any other documents to substantiate their contention. In other words the opposite parties failed to discharge the initial burden laid on them. So, it cannot be said that the complainant, knowing fully well that she was suffering from the disease of stones in the gall bladder, suppressed the same while taking the policy.


14. In the light of the discussion in paras supra, we hold that the complainant is not entitled for the amounts claimed.


15. Point No.II :- In the result, the complaint is dismissed without costs.

Gurram Madhusudhan S/o Narayana, Age: 41 years,

Occ: Business, R/o R.T.C.Colony, Nalgonda Town and District.

…Complainant.

1) M/s Arunachala Logistics (P) Limited, represented by its

M.D. V.V.Naidu, 8-3-961/B, 4th Floor, SBI Buildings,

Srinagar Colony Main Road, Hyderabad-500 034.



2) The New India Assurance Company Limited, Parklane Divisional

Office-612400, 205, 206 and 207, 2nd Floor, Chenoy Trade Centre,

Parklane, Secunderabad-500 003.
…Opposite Parties.

bearing No.AP-10E-9981. On 02-11-2008 while he was returning from Hyderabad to Nalgonda, when he reached Pedda Kaparthi Village at about 5-30 p.m., on his side with minimum speed, Opposite Party No.1 Lorry bearing No.AP-09TA-1191 with high speed and rash and negligent manner came his back side and hit his Maruthi Van bearing No.AP-10E-9981. Due to that, the back portion of his Maruthi Van badly damaged. Soon after the complainant filed a complaint before the Police Station, Chityal and they conducted Panchanama on 02-11-2008 under section 184 of M.V.Act, vide Cr.No.190 of 2008.
The complainant stated that due to rash and negligent driving of Opposite Party No.1 driver his Maruthi Van was badly damaged. Complainant got repaired his Van and he incurred an expenditure of Rs.8,265/- for purchase of spare parts and also paid an amount of Rs.5,650/- for repairing charges. So totally he incurred an amount of Rs.13,915/-. The complainant came to know that the Opposite Party No.1 insured his vehicle with Opposite Party No.2, vide Policy No.612400/31/08/01/00000288, valid from 24-4-2008 to 23-4-2009. So, both the Opposite Parties are jointly and severally liable for the loss sustained by the complainant.

The complainant got issued a notice dated 29-12-2008 to the Opposite Parties demanding to pay Rs.13,915/- towards damages caused to the Maruthi Van. The Opposite Parties neither replied to the notice nor they paid any amount. So, the Opposite Parties committed deficit of services to the complainant.
Contd…3/-
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The complainant prays that the Hon’ble Forum may be pleased to direct the Opposite Parties to pay an amount of Rs.13,915/- and Rs.5,000/- towards expenditure and mental agony and costs of the complaint.

2. Opposite Parties No.1 and 2 are called set exparte.

3. The complainant filed his affidavit and produced the documents which are marked as Exs.A-1 to A-11.

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

1) Whether the complainant is entitled to the amounts claimed?

2) To what relief the complainant is entitled?

5. POINT No.1: It is not in dispute that the complainant’ vehicle was damaged due to accident with Opposite Party No.1 Lorry bearing No.AP-09TA-1191. Due to the accident, the back portion of Maruthi Van bearing No.AP-10E-9981 was badly damaged. Complainant filed a complaint before Police Station, Chityal and they conducted panchanama on 2-11-2008, U/S 184 of M.V.Act, vide Cr.No.190/2008 marked as Ex.A-2. The traffic police, Chityal imposed a fine under section 184/177 of M.V.Act, Vehicle No.AP-09TA-1191 on 2-11-2008 at about 20-00. The Opposite Party vehicle driver paid compounding fee Rs.300/- as Ex.A-1. Transport authorities issued a certificate of registration in favour of the Opposite Party vehicle No.AP-09TA-1191 on 29-4-2008 as Ex.A-5. The
Contd…4/-
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Opposite Party No.1 insured his vehicle with Opposite Party No.2 insurance company, vide Policy No.612400/31/08/01/00000288, valid from 24-4-2008 to 23-4-2009 as Ex.A-6. The complainant filed a complaint before P.S.Chityal stated that while he was returning from Hyderabad to Nalgonda, when he reached Pedda Kaparthy Village at about 5-30 p.m., with minimum speed, the Opposite Party No.1 Lorry bearing No.AP-09TA-1191 with high speed coming behind had collided the back portion of the complainant’s Maruthi Van. Due to which, complainant’s Maruthi Van bearing No.AP-10E-9981 was badly damaged. The complainant got repaired his van for that he incurred an expenditure of Rs.8,265/- for purchase of spare parts, filed xeror copies of bills as Ex.A-3 and he also spent Rs.5,650/- for repairing charges as Ex.A-4. The complainant issued a legal notice dated 29-12-2008 through his counsel to the Opposite Parties demanding to pay Rs.13,915/- towards damages within ten days from the date of receipt of legal notice. The complainant filed acknowledgement as Exs.A-9 and A-10. The above exhibits shows that the complainant’s vehicle was damaged due to the said accident, held by the rash and negligent driving of the Opposite Party No.1 Lorry bearing No.AP-09TA-1191. Exs.A-1 and A-2 shows that the police conducted Panchanama and stated that Opposite Party No.1 Lorry bearing No.AP-09TA-1191 came with high speed and rash and negligent manner and hit the complainant’s vehicle on the back side, due to that the back portion of Maruthi Van badly damaged. The complainant got repaired the vehicle at Re-Touch Automobiles, Nalgonda on 28-11-2008 and incurred an expenditure of Rs.8,265/- for purchase of spare parts and also paid an amount of Rs.5,650/- for repairing charges. As per affidavit of the complainant we
Contd…5/-
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were made to believe that the Opposite Party No.1 Lorry bearing No.AP-09TA-1191 came with high speed and rash and negligent manner hit the back portion of the complainant’s Maruthi Van, due to the said accident the said vehicle was badly damaged and the complainant incurred expenditure of Rs.13,915/- for the purchase of spare parts and repairing charges, where the same was not contested by the Opposite Parties who stood exparte. Due to the negligent act of Opposite Party No.1 the complainant incurred above loss. The Opposite Party No.1 insured his vehicle with Opposite Party No.2. So, the complainant issued legal notices to the Opposite Parties No.1 and 2 regarding the loss incurred by him due to the accident, but the Opposite Parties neither replied to the notice nor they paid any amount. Therefore, we opine that the Opposite Party No.2 is liable to pay Rs.13,915/- towards purchasing the spare parts and repairing charges.

6. POINT No.2: In the result, the complaint is partly allowed directing the Opposite Party No.2 alone to pay to the complainant Rs.13,915/- (Rupees Thirteen thousand nine hundred and fifteen only) towards purchasing of spare parts and repairing charges along with costs of Rs.1,000/- (Rupees One thousand only) within 30 days from the date of the communication of this Order.

1. Chinthalapudi Sarath Babu, s/o.Venkataiah, age: 55 years, occu: Agriculture.

2. Smt.Chinthalapudi Pitchamma, w/o.Sarath Babu, ae: 50 years, occu: House hold

3. Chinthalapudi Vamsi Kishore, s/o.Sarath Babu, ae: 28 years, occu: Agriculture.

All are r/o.H.No.6-3-52/6, Bank colony, Khammam Town and District.

...Complainants

and

The New India Assurance Co. Ltd., rep. by its Branch Manager.

...Opposite Party.

The complainants are the holders of Medi-claim policy vide policy No.610902/48/05/75384 which is being renewed from time to time since last seven years. On 8-11-2006 the complainant No.1 had approached the opposite party office and requested to renew the above policy. The staff in the office of opposite party had asked the complainant No.1 to pay a sum of Rs.4,490/- for the purpose of renewal of policy and the same was endorsed on the policy paper. When the first complainant was remitting the said amount, the manager of opposite party had willfully rejected to receive the said amount for the reasons best known to him.

The complainant further stated that the refusal of the opposite party to renew the said policy is without any basis, unilateral and against the public policy as also principles of natural justice. As the complainants are continuing the above said policy since last 7 years, the bonus announced by the opposite party company will have to be credited and the complainants become entitled for reimbursement in respect of their medi-claim of the bonus amount in addition to policy amount in respect of each complainant. To deprive the complainants from this benefit, it appears that the opposite party is refusing to renew the policy of the complainants, who are members of the same family, if the above policy of the complainants is not renewed for no fault of them, the complainant will be deprived to enjoy the benefit in the form of bonus to which they are entitled as per the terms and conditions of the above policy.

The complainant No.1 had taken a lot of risk for getting the above policy of them renewed, when there is no fault on the part of complainants, the opposite party is liable to pay damages of Rs.10,000/-. The complainant issued a legal notice on 15-11-2006 calling upon the opposite party to renew the above policy of them by receiving a sum of Rs.4,490/- towards the renewal of the above policy. Hence, this complaint to direct the opposite party to renew their Medi claim policy No.610902/48/05/75384 and to declare that the refusal of the opposite party to renew the above policy of the complainant is arbitrary and illegal and that the opposite party is liable to renew the above policy of the complainant, to direct the opposite party to pay a sum of Rs.10,000/- towards damages to the complainants and to award costs.

2. The complainant No.1 filed his affidavit along with the following documents.

Ex.A.1 is Xerox copy of policy of the complainants

Ex.A.2 is Legal notice along with postal receipt.

The complainants also filed their written arguments.

3. On receipt of the notice, the opposite party appeared through its counsel and filed counter and stated that thereis no dispute about the date of expiry of the policy of the complainant vide policy No.610902/48/05/75384 is 10-11-2006,that before the date of expiry the opposite party has sent information letter about the date of expiry on 10-11-2006 to the complainant No.1 by mentioning the renewal of policy premium as Rs.4,490/-. But the complainants did not turn to the office of the opposite party to renew the above said policy by paying necessary premium. As per the contents of the complaint, it is clearly established that the staff of the opposite party offered the complainant No.1 to pay an amount of Rs.4,490/- for renewal of the policy of the complainants and the same was endorsed on the policy papers.

If really, the opposite party is having intention not to renew the policy of the complainants, they would not have told the complainant No.1 to pay the amount of rs.4,490/- for renewal of the policy. It is only enough to say that without paying prescribed amount for the purpose of renewal of the policy with having bad intention to get illegal benefits, the complainants filed this false claim by suppressing the real facts that they are not going to pay the renewal amount at the office of the opposite party. If really the opposite party has refused to receive the amount by the complainant No.1, he is having opportunity to send a cheque in favour of the opposite party through registered post, but the complainant did not take any steps to prove the same. As such it is clear that the complainant filed this false case to get illegal benefits from the opposite party. Hence, the complaint may be dismissed.

4. On behalf of the opposite party, intimation letter is marked as Ex.B.1.

5. Upon perusing the material papers on record and upon hearing the arguments on both sides, now the point that arose for consideration is,

Whether the complainants are entitled to renew the mediclaim policy?

Point:


6. It is an admitted fact that the complainants are the holder of Medi-claim policy vide policy No.610902/48/05/75384, which is being renewed from time to time since last seven years. On 8-11-2006 the complainant No.1 had approached the opposite party office and requested to renew the above policy. The staff in the office of opposite party had asked the complainant No.1 to pay a sum of Rs.4,490/- for the purpose of renewal of policy and the same was endorsed on the policy paper. When the first complainant was remitting the said amount, the manager of opposite party had willfully rejected to receive the said amount.

7. On the other hand, the opposite party contended that if really the opposite party is having intention not to renew the policy of the complainant, they would not have told the complainant No.1 to pay the amount of Rs.4,490/- for renewal of the policy.

8. From the above rival contentions raised by the complainants and opposite party, it appeared that the complainants are entitled some bonus because they renewed the medi claim policy from time to time since last 7 years. It is the duty of the opposite party to clearly mention the terms and conditions of the mediclaim policy and also it is the duty of opposite party that if any bonus has come from the above said policy premium, it should be added to the premium of the policy, which is paying from time to time.

9. Hence, we are of the opinion that the opposite party has to receive the premium from the complainants and renew the above said policy. In the above said circumstances, we are not awarding any damages.

10. In the result, the complaint is allowed, directing the opposite party to renew the above said medi-claim policy after deducting the bonus of the said policy as per terms and conditions of the policy and to receive the rest of the amount from the complainants.