Chintha Chandra Sekhar, S/o.Udaya Bhaskara Sharma, age: 37 years, occu:

Business, r/o.near Ramalayam, Pandurangapuram,Khammam urban

mandal, Khammam District.

…Complainant
The New India Assurance Co. Ltd., Khammam rep. By its

Branch Manager.

…Opposite party.

O R D E R

1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The averments made in the complaint are that the complainant is the owner of the vehicle bearing No.AP-20-U-2574 which was insured with opposite party company under comprehensive policy covering the own damages risk, valid from 6-7-2001 to 5-8-2002. It is further submitted that the said vehicle met with an accident on 29-5-2002 and the concerned police registered the case. The opposite party company was duly informed about the accident, it was deputed the loss assessor by name Bade Murali Krishna, who submitted the report to the opposite party. It is further submitted that the complainant produced all the necessary bills, but the opposite party did not pay the amount of loss to a tune of Rs.50,000/-. Thereafter he got issued legal notice on 2-9-2003 to the opposite party, which acknowledged the legal notice, neither gave reply nor gave payment. Hence, the complaint to direct the opposite party to pay an amount of Rs.50,000/- together with interest at 2% p.a. from the date of accident till the date of realization together with costs.

On the other hand, on receipt of notice, the opposite party made appearance and filed counter contending that the driver of the vehicle was not having valid driving licence to drive the vehicle and also denied the genuineness of the accident and regarding nature of repairs underwent by the vehicle of the complainant. It is further contended that the complainant failed to submit original R.C., D.L. of the driver, preliminary records and other documents in spite of letters and reminders. It is further contended that they issued the registered letter to the complainant to produce relevant documents, but he failed to do so and contended that there is no deficiency of service on their part and prayed to dismiss the complaint.

Originally this complaint was disposed of by this forum on 13-3-2006, by dismissing the complaint holding that the complainant failed to submit any documentary evidence regarding the loss assessed by the surveyor and bills of the vehicle, registration certificate and driving licence of the driver.

Aggrieved by the said order, the complainant has preferred an appeal to the State Commission. The State Commission vide its order in F.A.No.301/2007 dt.19-9-2008 has remanded the case by setting aside the order enabling the appellant/complainant, gave a chance to file the relevant documents and directed to dispose of the case within 3 months from the date of receipt of this order.

On receipt of the said order, the complainant herein filed his chief-affidavit and documents, which are marked as Exs.A.1 to A.8. Ex.A.1 is copy of F.I.R., Ex.A.2 is office copy of legal notice, Exs.A.3 and A.4 are the postal acknowledgements, Ex.A.5 is the Registration certificate, Ex.A.6 is the driving licence, Ex.A.7 is the bills in respect of repair of the vehicle and Ex.A.8 is the photographs showing the damage caused to the vehicle.

On behalf of the opposite party, the Senior Assistant has filed his affidavit as R.W.1.

Both the counsels filed written arguments. Heard both sides. Perused the oral and documentary evidence, upon which the points that arose for consideration are,

1) Whether the complainant is entitled to claim loss sustained by him

due to the accident caused to the insured vehicle?

2) To what relief?

Points No.1 and 2:

The case of the complainant is that he is the owner of the vehicle bearing No.AP-20-U-2574, which is the insured with the opposite party company. The vehicle met with an accident and got damaged and the vehicle was covered under the policy from 6-8-2001 to 5-8-2002. This accident has taken place when the policy was in force. The complainant claimed the damages, but the opposite party did not pay the compensation without any reason, though it is liable under the policy bearing No.610902/31/01/05411. With regard to the policy of the vehicle concerned, he refers to Ex.A.1, which proves the case of the complainant, he also refers to Ex.A.2, F.I.R., which is the complaint given by one A.Kishan, who was one of the passenger traveling in the said auto on the date of accident.

In this complaint, he has clearly narrated that the tractor came in a rash and negligent manner driven by its driver and its tipper gave dash to the auto, due to which the auto turned turtle and the passengers traveling in the auto sustained injuries. Apart from this, the complainant refers to Ex.A.3, office copy of legal notice, wherein he demanded the opposite party to pay damages caused to the vehicle, Ex.A.4 is the acknowledgments to the legal notice. Apart from this, the complainant refers to Ex.A.5, registration certificate, in which the vehicle stands in the name of complainant. He also refers to Ex.A.6, driving licence under which he was authroised to drive the light motor vehicles transport only with effect from 15-7-1999. Apart from this, the complainant refers to Ex.A.7, bills issued for the purchase of automobiles towards repairs caused to the vehicle and also to Ex.A.8, photographs, wherein the vehicle was damaged. Exs.A.1 to A.8 clinchingly go to establish that the vehicle belonging to the complainant has damaged in the accident. On the date of accident, the policy was in force and he sustained loss as in Ex.A.7, bills.

On the other hand, it is the case of the opposite party that on the date of alleged accident, there were more than 8 persons traveling in the auto and due to gross negligence and over capacity of passengers, it hit the tractor from the back side and due to which the accident occurred and therefore the complainant violated the terms and conditions of the policy and as such the opposite party is not liable to pay compensation.

On this aspect of the case, the complainant refers to Ex.A.1, F.I.R., in which it is clearly mentioned that it is a trally of the tractor, which hit auto and it is not on the part of auto driver, the accident occurred. It is the further case of the opposite party that the complainant failed to submit any record regarding the registration certificate, driving licence and also criminal record regarding the accident and also placed reliance to a decision reported in 2008(2) SCJ 470. On this point only, earlier complaint was dismissed and the state commission was pleased to remand the matter enabling the complainant to file these documents. As per order of the state commission, the complainant has filed all the relevant documents, which are marked as Exs.A.1 to A.8. The learned counsel for the opposite party vehemently argued and submitted that at the time of accident, the vehicle was driven by the person holding the licence to drive light motor vehicle, but not transport. In the instant case, the complainant refers Ex.A.6, driving licence, wherein it is clearly mentioned that the driver is authorized to drive light motor vehicle transport only with effect from 15-7-1999. In view of the said driving the licence, the ratio attached to this citation is not applicable to the present case.

In the light of the relevant documentary evidence, it is established that the vehicle involving in this accident to the non transport vehicle and the complainant was having the licence to drive light motor vehicle and there was an endorsement as required under section 3 of the Act that the driver is also authorized to drive transport vehicle. Therefore, the opposite party cannot escape from its liability. As regards the damages caused to the vehicle is concerned, the complainant refers to Ex.A.7, which are the bills for the purchase of automobile parts and repair charges, which comes to a tune of Rs.40,412/- to which the complainant is entitled.

In view of the aforesaid reasons, we are of the opinion that the complainant has substantially established that the vehicle met with an accident and sustained loss to a tune of Rs.40,412/- to which the opposite party is liable to compensate the complainant.

Accordingly, the complaint is allowed, directing the opposite party to pay compensation of Rs.40,412/- together with interest at 9% P.A.from the date of accident, till the date of realization. Further, the opposite party is directed to pay an amount of Rs.2,000/- towards costs of the litigation.

1. Complainant is the registered owner of the autorickshaw KL10/K-1047. On 21-10-2005 the vehicle was entrusted to Saidalavi, S/o Mohammed, Poozhikuth house, Melakkam, Karuvambram (PO), Manjeri as the driver of the autorickshaw to drive it for hire and reward. On the same night, when the vehicle was parked in front of the Juma Masjid, the vehicle was stolen. Manjeri Police registered Crime No.782/05 under section 379 IPC. The Police could not trace the vehicle and final report was submitted that the vehicle is undetectable. A claim was preferred before opposite party for the value of the vehicle by virtue of the policy which was valid from 25-5-2005 to 25-5-2006. It is alleged that opposite party repudiated the claim on unsustainable grounds and hence this complaint alleging deficiency in service.



2. Opposite party has filed version admitting the issuance of insurance policy. It is the case of opposite party that on the relevant date the owner of the vehicle was Saidalavi and that theft occurred while the vehicle was in his possession. That complainant had sold the vehicle to Shihab and then to one Jabbar. That complainant had violated policy conditions and that therefore opposite party is not liable to indemnify the complainant.



3. Evidence consists of the affidavit filed by complainant and Exts.A1 to A6 marked for him. Opposite party has filed counter affidavit and Exts.B1 and B2 marked for opposite party. Either side has not adduced any oral evidence.



4. The grievance of the complainant is that opposite party failed to indemnify the loss due to theft of vehicle which happened during currency of the policy.



5. The claim is repudiated by opposite party on the contention that vehicle was sold by complainant to Shihab and then to Jabbar and that at the time when the vehicle was stolen the vehicle was in the ownership of Sri.Saidalavi. That though complainant is the R.C. Owner and policy holder he has violated the policy conditions.



6. Opposite party has not specifically stated which is the policy condition that complainant has violated. In cases of policy violation it is definitely the burden on the side of insurance company to prove the same with cogent evidence. The pleadings and affidavit does not specify exactly on what ground the compensation was denied. Ext.A1 which is the Registration Certificate proves that complainant is the registered owner of the vehicle. Ext.A2 policy also stands in the name of the complainant. Ext.A4 is the final report in Crime 782/05 which proves that the vehicle was stolen. The submissions made on behalf of opposite party was that the complaint of theft was lodged before the policy by one Saidalavi and that this person stated before the police that the vehicle was in his ownership on the relevant date ie., on 21-10-2005. Ext.B2 is the photo copy of First Information Report in which Saidalavi is the first informant. Opposite party also relied on Ext.B1 which is the report of investigation conducted by the insurance Company. The investigator in this case is none other than a practicing lawyer Sri.K.A. Gopal who usually appears in cases even before this Forum. We do not know on what basis he was appointed as investigator. In Ext.B1 the investigator has concluded that the contention of theft is genuine. It is also found by him that the claim form is submitted by the original Registration Certificate owner/insured. According to his investigation though in the First Information Report Saidalavi has stated that the vehicle was owned by him in the F.I.S. The very same Saidalavi has stated that the vehicle was only kept in his possession.



7. The consistent case of complainant is that he is the R.C. Owner of the vehicle and that the vehicle was entrusted to Saidalavi as driver. Though opposite party vehemently contends that the vehicle was sold there is no scintilla of evidence to support this contention. On perusal of the evidence and materials placed before us we are able to reach the inescapable conclusion that the vehicle was in the ownership of complainant on the relevant date of theft. The repudiation of policy by opposite party is on flimsy unsustainable grounds and hence unjustifiable. We therefore find opposite party deficient in service.



8. Complainant is definitely entitled to be indemnified as per the policy. The IDV in Ext.A2 is Rs.35,000/-. Complainant is entitled to this amount from opposite party. He has to be compensated for the deficiency meted by him. The denial of legitimate amount is unreasonable. Further in this case the repudiation was on utterly flimsy grounds which are not supported by any evidence at all. We therefore hold that complainant is entitled to interest @ 12% per annum upon the above amount from the date of complaint till payment which we consider to be adequate compensation to him.



9. In the result, we allow this complaint and order opposite party to pay Rs.35,000/- (Rupees Thirty five thousand only) to the complainant along with interest @ 12% per annum from date of complaint till payment together with costs of Rs.1,000/- (Rupees one thousand only) within one month from the date of receipt of copy of this order.

The case of complainant is as follows: On 15.6.94 the complainant sustained fracture of both bones of left forearm in a road traffic accident. The complainant was examined by 2nd respondent and admitted at first respondent Hospital on that day itself. He was undergone surgical operation for the rectification of fractures. He was treated by reduction of internal fixation with plate and screws by the 2nd respondent. On 24.6.94 he was discharged and used to consult 2nd respondent as an out patient. Later at the end of 1999 the complainant felt pain in the left forearm and consulted the 2nd respondent and diagnosed that fracture united and implants can be removed. So he was readmitted on 5.2.2000 and implants were removed by 2nd respondent.

During the removal the bones were refractured due to negligence and fault on the part of 2nd respondent. If the 2nd respondent had taken proper care and attention refracture of ulna would not have occurred. This act amounts to medical negligence. So the complainant caused to issue lawyer notice on 29.6.2000. The respondents-1 and 2 replied to the lawyer notice with untrue and baseless matters. The complainant was a prize winner of rifle shooting and champion. If fracture not occurred he could have resumed to former form. There are loss of sports and active life, loss of prospective earning potential and capacity etc. Hence this complaint.

2. The averments in the counter of Respondents-1 and 2 are as follows. The complainant was admitted in the first respondent Hospital on 15.6.94 for fracture of both bones of the left forearm. He underwent open reduction and plate screw fixation on 21.6.94. Post operatively facture healed completely and the patient was doing well. On 9.3.1996 the petitioner had reported with pain in the left forearm and was given analgesic. On 5.1.2000 the complainant had again reported with pain on the left forearm. The examination revealed that the fracture was well healed. The complainant was advised plate and screw removal if it is causing recurring pain. Patient was told about the difficulties and complications of plate removal especially when it is undertaken after 6 years. On 1.2.2000 the complainant reported to 2nd respondent for removal of implants knowing fully well of its complications.

The removal surgery was done on 3.2.2000. The removal of the implant was difficult because the screws were not turning with the forque of the screwdriver. While removing the plate and screws a crack fracture developed in ulna, which was replanted in the same sitting. The wound healed in about 3 weeks time. The re-fracture during plate and screw removal is a known complication especially when it is done after many years. So there is no negligence on the part of these respondents. The first respondent is having a Medical Establishments errors and Omissions Policy with the 3rd respondent and if any amount of compensation is ordered the 3rd respondent is liable. Hence dismiss the complaint.

3. The counter of 3rd respondent is as follows. This respondent denies that this respondent has issued a policy in the name of respondents-1 and 2. Since no policy is issued this respondent is not liable to pay compensation. Hence dismiss the complaint.

4. The additional versions filed by the 3rd respondent are as follows. The complainant has not stated the number of the policy and the period of the policy in the complaint. The policy is issued in the name of first respondent for a period from 17.8.00 to 16.8.01. The complainant alleges that he sustained fracture in the road traffic accident on 15.6.94. Proviso of policy condition No.2 states that there shall be no liability hereunder for any claim made against the insured for act committed or alleged to have been committed prior to the retroactive date specified in the schedule. This respondent admits that they have issued Medical Establishment professional negligence errors and omissions insurance policy for a period from 17.8.99 to 16.8.00 in the name of first respondent. The alleged accident is in the year 1994 and the treatment is given on 2000 connected to the accident of 1994. Hence the claim of complainant does not come under the policy. If a policy is taken in 1994 from the company that company is liable to pay the compensation.

5. The averments in the counter of 4th respondent are as follows: This respondent denies that they have issued a Professional Negligence Errors and Omissions Insurance Policy in the name of first respondent at the relevant time on 3.2.00 the date on which the complainant alleged medical negligence on the part of 2nd respondent. So this respondent has no liability. This respondent has issued a professional negligence errors and omissions insurance policy to first respondent as per policy No.4676030102526 for a period from 25.4.94 to 25.4.95. This respondent has not issued any policy in favour of the first respondent covering the period of 2nd treatment availed in the year of 2000. Hence this respondent is not liable and dismiss the complaint.

6. The points for consideration are:

(1) Is there any negligent act on the part of respondents-1 and 2?
(2) If so, reliefs and costs.

7. The evidence consists of Exts. P1 to P10 and the testimony of PW1 and Exts. R1 to R5 and the testimony of RW1.

8. Points-1 & 2: According to the complainant, on 15.6.94 he met with a road traffic accident and sustained fracture on both bones of left forearm. He was taken to first respondent hospital and examined by 2nd respondent and on his advice he was admitted and undergone operation for rectification of fractures. The 2nd respondent treated by reduction and internal fixation with plate and screws. On 24.6.94 he was discharged and continued consultation as out patient. He further states that at the end of 1999 he felt pain over the left forearm. The 2nd respondent diagnosed that fracture united and implants can be removed. On 5.2.2000 he was readmitted and implants were removed by 2nd respondent. During the removal due to medical negligence, fault, and imperfection united bones were refractured. According to the petitioner due to refracture the percentage of disability was increased from 8% to 12%. So this complaint is filed to get damages from the respondents-1 and 2.

9. The respondents-1 and 2 filed a joined counter and admitted the treatment and surgery on 15.6.94 and also the further treatment in the year 2000 for removal of plate and screws and refracture of Ulna at the time of removal. They state that removal of implant was difficult since the screws were not turning with the forque of the screwdriver. While removing the plate and screws from the ulna a crack developed in the ulna, which was replated by them. The refracture during place and screw removal is a known complication especially when it was done after many years. So according to them there is no negligence and complaint is liable to be dismissed. Both the Insurance Companies taken the view that at the relevant time there was no effective policy.

10. The complaint is filed for damages to the complainant due to the negligent act of respondents-1 and 2.
11. According to the petitioner, he was treated and undergone an operation on 15.6.94 in the first respondent hospital due to fracture of both the bones of left forearm by a road traffic accident. At that time the 2nd respondent treated by reduction and internal fixation with plate and screws. On 24.6.94 he was discharged and continued consultation with 2nd respondent as out patient. These facts are admitted by respondents-1 and 2 also. So no further evidence is necessary.

According to the complainant at the end of 1999 he felt pain and consulted with 2nd respondent in the first respondent hospital and diagnosed that fracture united and implants can be removed. So on 2.2.2000 he was readmitted and implants were removed by 2nd respondent. According to the complainant during the removal due to medical negligence, fault and imperfection united bones were refractured. His percentage of disability was increased from 8% to 12%. In the counter of respondents-1 and 2 it is stated that the removal of the implant was difficult since the screws were not turned with the forque of the screwdriver because there were lapse of time for 6 years. They further stated that a refracture during plate and screw removal is a known complication especially when it is done after many years. It was also stated that the complainant was told about the complications prior to surgery. Ext. R1 is the case sheet produced from first respondent hospital. Ext. R1 shows that there was consultation on 9.3.96. In the counter the respondents-1 and 2 stated that on 9.3.96 the petitioner had reported with pain in the left forearm and was given analgesic. So it is an admitted fact that after the surgery on 21.6.94 the complainant had consulted the doctor with pain in the left forearm. At that time the doctor given only analgesic.

He did not advise for removal of implants. Their specific case is that the removal of implants done after 6 years caused the refracture of ulna and the doctor was well aware that the delay in removal would cause such complications. So he had to intimate this fact even at the time of consultation on 9.3.06. He did not reveal this fact to the complainant at the time of first discharge. If he had intimated this fact the complainant would have consulted at that relevant time. Here after the first surgery the complainant consulted after two years. At that time also the first respondent failed to intimate this fact of removal and failed to conduct removal surgery. The 2nd respondent was examined as RW1 and deposed that the difficulties of removal of implants were told to the complainant on 5.1.00 and it can be seen from Ext. R1. So it is evident that this fact did not reveal earlier. The Counsel for petitioner asked him that there is no acknowledgement from the complainant. He admitted and stated that there is no such practice.

12. The case of respondents-1 and 2 is that they have revealed the complications about the removal of implants to the complainant. There is no document produced by them to show that complications were revealed to the complainant. As per the records the removal of implants were done on 3.2.2000 and also admitted by respondents-1 and 2 in their counter. They have produced Ext. R1 case sheet and in which Ext. R1 (b) is marked as the relevant consent letter.

In Ext. R1 (b) the name of surgery stated as implants removal. The date stated as 3.2.2000. Ext. R1(c) is another consent letter shows the date of surgery as 15.2.2000 in which the name of surgery written is strike off and written as secondary suturing. The record of private consultations contained in page No.1 of Ext. R1 shows that there was no such consultation on 15.2.2000. Ext. R1(b) is a usual consent letter and does not reveal that the complications were told to the complainant. According to the respondents-1 and 2, consent was obtained from the complainant for implant removal on 3.2.00 the surgery date itself. Ext. R1 (b) shows that the date on which consent was obtained as 3.2.00. During examination RW1 has deposed that they told the complications to the complainant prior to the surgery. From Ext. R1 (b) it is seen that the complications are revealed immediately prior to the surgery. It is not proper and it is not a real and valid consent. So without obtaining a valid consent 2nd respondent conducted surgery. It is against the ethics and shows negligence on the part of Ext. R2. The definite case of respondents-1 and 2 is that the complainant was told and adequately revealed about the complications prior to the surgery. But they failed to prove this fact.

13. Another important point put forward by the respondents-1 and 2 is that removal of implants is a known complication. This view of the respondents-1 and 2 is not correct. They further stated that it is a known complication especially when it is done after many years. In the present case many years have taken only because of the negligent act and advice of 2nd respondent. The second respondent is duty bound to give medical advice in proper time. There is clear negligence on the part of 2nd respondent. Ext. P2 is the copy of discharge summary produced by the complainant shows nothing about the time of removal of implants. There is no advice of removal or discharge. So the negligent act of the first respondent is proved and they are liable to pay compensation to the complainant.

14. Ext. R1 is the crucial document produced by the respondents-1 and 2 to substantiate their case3. But there are changes of page numbers and the dates of consultation noted are not proper. In the first page itself there are two consultations on 1.2.2000 and Rs.70/- each as charge. This is not proper and cannot be believed.

15. In the counter respondents-1 and 2 stated that if there is any amount of compensation is ordered the 3rd respondent is liable to pay the same since the first respondent is having a Medical Establishments Errors and Omissions Policy. The view taken by the 3rd respondent Oriental Insurance Company is that the policy issued by the Company was for a period from 17.8.99 to 16.8.00. According to them since the accident occurred on 15.6.94 they are not liable. But this view taken by the 3rd respondent is not correct. The 3rd respondent produced a document and is marked as Ext. R7. Ext. R7 is the claim form. 3rd respondent does not produce the policy copy during the relevant period. But they filed an affidavit admitting that there was a Medical Establishments Errors and Omissions Policy in the name of West Fort Hospital for a period from 17.8.99 to16.8.00. They stated that the indemnity limit during the policy is Rs.8,00,000/- and the indemnity limit per person is Rs.2,00,000/- and further stated that there is compulsory excess of 0.5% of any one limit subject to minimum of Rs.5000/- and maximum of Rs.1,00,000/-. Since the negligent act committed by the Doctor was even this policy period the complainant is entitled to get compensation from the 3rd respondent.

16. The 4th respondent was later impleaded and filed counter to the effect that there was a Provisional Negligence Errors and Omissions Insurance Policy in favour of first respondent for a period from 25.4.94 to 25.4.95. They have produced Ext. R6 the copy of insurance, which shows the period of insurance 12 months as from 25.4.94 to 24.4.95. So during the time of negligent act and treatment of the complainant there is no policy coverage from 4th respondent. So this respondent is not liable to pay any compensation to the complainant.

17. The quantum of damages to be fixed. According to the complainant he is entitled to get Rs.2,65,000/- as damages. There is no evidence to arrive at such an amount. The petitioner stated that he is a rifle shooting champion and state prizewinner. But there is no document to show that he is a champion and state prizewinner. Without any document we cannot take into consideration of that aspect. The complainant was examined as PW1 and deposed that he is an unemployed person and not having any job at any time. Firstly he was treated in hospital for 9 days and after that he was admitted for removal of implants and complications were happened. During the period he had suffered pain to his left forearm and already discussed. There is no evidence to show the loss of earnings since he has no job. He has suffered much pain and difficulties. During examination he deposed that he had obtained Rs.65,000/- from Motor Accident Claims Tribunal for the accident claim. The disability noted by the doctor is only 12% temporary disability. So according to us, he is entitled to get Rs.25,000/- as damages.

18. In the result, complaint is allowed and the 3rd respondent is directed to pay Rs.25,000/- (Rupees twenty five thousand only) to the complainant with cost Rs.2500/- (Rupees two thousand and five hundred only) within one month.

Manoj Radhakrishnan Nair, S/o T.R. Radhakrishnan Nair, Sree Visakh, Vivekanandapuram, Kodunganoor P.O, Vattiyoorkavu, Thiruvananthapuram-13.

Opposite parties:
1.

The New India Assurance Co. Ltd., represented by its Managing Director, New India Assurance Building, 87, M.G. Road, Fort, Mumbai- 400 001.
2.

The Branch Manager, New India Assurance Co. Ltd., Branch-II, No. 26/1436, Government Press Road, Thiruvananthapuram-1.


ORDER

The case of the complainant is as follows: The complainant is holding an insurance policy under the Kudumba Arogya (KA-I) vide policy No. PSKA 1999/47/760562/80228(760502) valid from 23.06.1999 to 22.06.2004. Whileso the complainant fell ill and was under treatment at MALAR Hospital, Chennai from 02.08.2001 to 09.08.2001. He was admitted as IP on 08.08.2001 and was discharged on 09.08.2001. An arthroscopic surgery was done on 08.08.2001.

He incurred a total expenditure of Rs. 25,928.20. He has submitted all his original documents in connection with the said treatment, including hospital bills, to the 2nd opposite party on 20.08.2001 claiming reimbursement of the expenditure. But the opposite parties informed the complainant that they are ready to pay the expenditure excluding the Doctor's fee paid to the hospital. The complainant not accepted the offer of the opposite party and the act of the opposite party amounts to deficiency in service, breach of contract and against the provisions of law. Hence the complainant filed this complaint before this Forum.

The opposite parties, New India Assurance Co. Ltd., filed their version contending the claim of the complainant. The opposite parties stated that the complainant is not the insured as per the alleged policy and he is not having any locus standi to file such a complaint. The alleged policy was taken by the father of the complainant Radhakrishnan Nair. He is the insured and he has submitted a claim. The complaint regarding the non-settlement of the claim can only be made by Radhakrishnan Nair who is the actual insured as per the policy. For the above reasons, the complaint is only to be dismissed.


The opposite parties further submitted that the father of the complainant submitted a claim form, claiming medical expenses for the treatments undergone by his son-the complainant. Along with the claim form he has submitted 1 bill dated 03.08.2001 for Rs. 275/- along with the receipt 2 dated 03.08.2001 for Rs. 120/-, receipt 3 dated 03.08.2001 for Rs. 210/-, receipt 4 dated 06.08.2001 for Rs. 80/-, bill 5 dated 09.08.2001 for Rs. 11,213.30 and receipt 6 dated 18.08.2001 for Rs. 30/-. There was no receipt evidencing the payment of the amount of Rs. 11,213.30 as per bill dated 09.08.2001. Moreover in the claim form an amount of Rs. 14,000/- was also claimed. But there was no receipt to show that amount was paid.

The 2nd opposite party made several requests to the complainant's father for producing the receipts for the amounts of Rs. 11,213.30 and Rs. 14,000/-. There was no response and hence the 2nd opposite party issued a letter dated 03.09.2002 requesting for the production of the above receipts. As there was no result, the 2nd opposite party closed the claim file and informed the matter to the insured by letter dated 26.03.2003. The insured is not entitled for the above amount of Rs. 25,213.30 as there is no documents available to show the payment of those amounts. In the absence of the necessary supporting documents, the opposite parties are legally justified in not effecting payments. The averment that the opposite parties informed that they are ready to pay the expense excluding doctor's fee is not correct. The opposite parties only insisted for the production of payment receipts which are the basic documents necessary for the settlement of a medical expense claim. The opposite parties stated that there is no deficiency in service or breach of contract on the part of the opposite parties. Hence they prayed for the dismissal of the complaint.

Points that would arise for consideration are:-

1.
Whether the complainant is a consumer as per Consumer Protection Act?
2.

Whether there is unfair trade practice and deficiency in service from the side of opposite parties?
3.

Whether the complainant is entitled to get the reliefs and costs.

Point (i):- The father of the complainant has taken an insurance policy under the Kudumba Arogya (KA-I) vide policy No. PSKA 1999/47/760562/80228(760502) valid from 23.06.1999 to 22.06.2004. The complainant produced the policy copy before this Forum and marked as Ext. P1.

As per the policy there are four persons insured and the complainant is the fourth one. In this case the opposite party argued that the complainant is not the insured as per the alleged policy and he is not having any locus standi to file the complaint and he never submitted any claim before the opposite party. But as per Ext. P1 policy copy we can see that the policy is taken for 4 persons and the complainant is the fourth one. The father of the complainant Mr. Radhakrishnan Nair has taken the policy for the complainant also. As per Consumer Protection Act, beneficiary of services is also a consumer. When a person hires services, he may hire it for himself or for any other persons. In such cases the beneficiary of these services is also a consumer. Hence the complainant is a consumer and the complaint is maintainable before this Forum.

Points (ii) & (iii):- In this case the complainant claims that as per the policy he is entitled to get the medical expenditure which he had incurred in the hospital. As per the policy conditions he submitted the medical expenditure bills and records before the opposite party for reimbursement. But the opposite informed him that they were ready to pay the expenditure excluding the doctor's fee paid to the hospital. On this point the complainant argued that every hospital bill is included with doctor's fee and no doctor will render any treatment to any patient without fees. The complainant stated that all hospital expenditure has to be reimbursed and the opposite party is liable to reimburse the doctor's fee also.


To prove his contentions the complainant has produced 12 documents before this Forum. Ext. P1 is the copy of policy Certificate No. 1999/47/760562/80228(760502). As per this policy the complainant is the 4th insured person and he is entitled to get the benefit under this policy. Ext. P2 to P4 are the copies of medical expenditure bills incurred on 03.08.2001 and 06.08.2001. Ext. P6 is the copy of details of expenditure incurred on 08.08.2001. the complainant was discharged on 09.08.2001, on that date all the dues towards the hospital were given in detail. The copy of the same was marked as Ext. P7. Ext. P8 is the copy of receipt dated 18.08.2001 for an amount of Rs. 30/-. Ext. P9 is the copy of receipt dated 08.08.2001 for the payment of advance amount of Rs. 5,000/-. Ext. P10 is the copy of discharge summary dated 09.08.2001. Ext. P11 is the copy of advocate notice issued by the complainant to the opposite parties dated 02.08.2003. Ext. P12 is the authorization certificate of the complainant authorizing his uncle A. Mohanan Nair to conduct the case for and on behalf of him.

Contending the claim of the complainant the opposite parties have produced 6 documents. The document marked as Ext. D1 is the copy of policy certificate. In the version opposite party stated that the complainant is not the insured as per the alleged policy. But Ext. P1 document produced by the opposite party itself proved that the complainant is an insured. Ext. D2 is the copy of claim form submitted by the father of the complainant on 06.09.2001. As per this document the claim amount is seen as Rs. 25,928.20 and the details of the bills and its dates are shown in this document.

The opposite parties also admitted that the originals of them were submitted along with the claim form. Ext. D3 is the copy of letter issued by the opposite party to the complainant to produce original receipts issued by M/s Malar Hospital for a sum of Rs. 11,213 and 14000/- to enable them to proceed further dated 03.09.2002. Ext.D4 is the copy of letter issued by the opposite party informing the complainant that they are closing the claim file on account of the reason no response from the insured dated 26.03.2003. Ext. D5 is the copy of reply notice issued by the opposite party to the complainant dated 13.08.2003. Ext. D6 is the copy of acknowledgement card.

The opposite parties admitted that they have received the originals of Exts. P2, P3, P4, P5 and P8. The receipts for these amounts are admitted by them. This amount in total is Rs. 714.90. Hence the balance amount to be paid is of Rs. 25,213.30. In the argument note filed by the complainant it is clearly stated the details of the payment. The opposite party stated that the complainant submitted the bill for Rs. 11,213.30 and Rs. 14,000/-, he has not produced the receipt from the hospital. So they are in doubt whether these amounts are really paid to the hospital or not.

To prove the payment it is to be noted that the Ext. P7 clearly shows the payment. In Ext. P7 Sl. No. 14 and 15 show the payment of Rs. 11,213.30. Rs. 5000/- was paid by cash on 08.08.2001 as per Ext. P9 document. The balance amount of Rs. 6213/- has been paid by credit card on the date of discharge from the hospital. The balance amount of Rs. 14000/- was paid by cash towards doctor's fee. The complainant's counsel had argued that the hospital was reluctant in issuing bill for doctor's fee as that was their practice. But as per the request of the complainant in Ext. P7 document they have written the receipt of Rs. 14,000/- and they have put the signature and their official seal affixed upon it. So it is also proved that the amount of Rs. 14,000/- is also paid to the hospital. Thereby the complainant has proved that the whole amount of Rs. 25,928.20 was paid to the hospital. From the above stated arguments Ext. P7 document can be treated as the receipt of the payment of Rs. 14,000/- and Rs. 11,213.30.

The complainant's arguments are proved by him with sufficient pleading, documents, calculations and arguments. From the above mentioned discussions we are of the view that the complainant has succeeded to prove his case beyond doubt. Hence we find that there has been unfair trade practice and deficiency in service from the side of opposite party. The opposite parties are liable to reimburse the medical expenditure incurred by the complainant as he is an insured person. The complainant submitted all the relevant documents and receipts to the opposite parties along with claim form within time. But the opposite parties did not act promptly as per the policy conditions. They were wilfully trying to evade from their liability. It is not a fair practice. Both parties are bound to obey the terms and conditions of the insurance policy. Hence the opposite parties are liable to pay the medical expenditure incurred by the complainant.

In the result, the 1st opposite party is directed to pay Rs. 25,928.20 with 12% annual interest from 20.08.2001 to the complainant and also shall pay Rs. 2,000/- as costs to the complainant. Time for compliance one month from the date of receipt of the order. Thereafter 18% annual interest shall also carry the above said amounts till the date of realization.

Sri. Gururajrao B S/o B. K. Balakrishna Rao,
Age 30 years, R C Owner Of Bus No.KA-22/A-7559,
R/o 55, 6th Cross,, A Block,
Devraj Urs Layout,
Davanagere.
Reptd: GPA Holder,
Balakrishna Rao S/o B N Khandoji Rao,
55 years, #55,
Davanagere.
V/s
OPPONENTS:
The Divisional Manager,
The New India Assurance Company Ltd.,
Door No.249/1 & 2,
Shamanur Building, Chamarajpete,
Davanagere-577501.
Davanagere District.

Date of filing : 03-11-2009
Date of Disposal : 05-06-2009


: JUDGMENT :
The complainant Gururaj Rao has filed this complaint against the Opponent-The New India Assurance Company Ltd., Davanagere, U/s. 12 of the Consumer Protection Act to direct the Opponent to pay a sum of Rs. 7,25,429/-, towards repairs, replacement of material and cost paid as per bills, Rs. 1,00,000/- towards delay caused in settling the claim by the opponent together with interest at the rate of 12% p.a. from the date of claim till realization and cost of this litigation.

2. The facts of the case in brief are as follows :-

The complainant is the registered owner of the heavy passenger vehicle-a tourist Bus with all India Tourist Permit bearing Registration No. KA-22-A-7559. The said Bus is owned and operated by the complainant, in accordance with the licence and the permit granted by the concerned authorities. The said vehicle was purchased by the complainant under hypothecation agreement with Davanagere-Harihara Urban Co-operative Bank Ltd.,. The said Bus was of Ashoka Leyland of 2006 model. The complainant has authorized his attorney to represent him duly represented through his GPA in his favor.

The opponent is the Insurance Company and the said vehicle was insured with the opponent covering the accidental risk including the own damages claimed. The insurance policy is issued by the opponent was in force at the time of accident, the said policy was valid with effect from 7/8/08 to 6/8/09. The Insurance premium paid by the complainant was Rs.32,878/- for a period of 2 months. The ID value (Insured Declaration Value) of the vehicle was Rs.11,00,000/-. The said policy has bearing No.671200/31/07/01/00000920. The complainant is running his Bus under All India National permit and conducting the trips from Soraba to Bangalore via Davanagere. On 10/5/08, while the said bus was going at about 1.30 am near Bulakatte village situated near Bharamasagara Police Stations limts on NH-4, one heavy goods Lorry bearing No.MH-06-8819 came from opposite direction from Chitradurga towards Davanagere with high speed and in a rash and negligent manner and dashed against the complainant’s Bus.

Due to the impact of the accident the heavy damages were caused to the bus of the complainant. The complainant immediately informed the Insurance Company and lodged the complaint before Bharamasagara Police and the police registered crime No.142/08 for the offences punishable u/s 279 and 337 of IPC. The insurance Company deputed Surveyor for spot survey inspection. The surveyor deputed by the opponent assessed the damages caused to the bus and taken note of criminal proceedings initiated against the lorry driver. Thereafter, the opponent and the surveyor informed the complainant to take the vehicle for repairs.

The complainant upon on the oral permission granted by the opponent lifted the said vehicle to the garage for repairs. The said Garage issued cost of estimation. The opponent gave oral approval to the said estimation. The complainant got carried out repairs. The opponent issued the claim form and asked the complainant to submit the documents along with estimation. The complainant has complied with the request made by the opponent and furnished all the documents. After got repairing of the said Bus, the complainant has produced all the bills and vouchers to the opponent and requested to make payment. The complainant after furnishing above said documents to the opponent waited for the settlement of the claim by the opponents. The opponent unnecessarily protracted for settlement without any reasonable cause and justification, the complainant spent the following amount for repairs.

(a) Amount spend towards repair of structure damaged, seats, shape, glasses including labour and material cost paid to Veera-Vahana Udyog Private Ltd.,

Rs.5,08,900-00

(b) Amount spend towards purchase of Electric andother necessary allied parts And its repairs paid to Prakash Auto Electric Engineering, Davanagere.


Rs. 46,687-00

(c) Amount spend and paid towards purchase of automobile parts to engine repair from Mahadeva Automobiles.

Rs.1,27,647-00

(d) Amount paid to Prakash Auto Garage, Davanagere for repairs of engine and mechanical parts.

Rs. 42,200-00

Total

Rs.7,25,429-00

3. The opponent without valid reasons even after producing of original bills, voucher, criminal proceedings documents of crime no.142/08 of Bharamasagara Police withheld the claim and not-settled the claim and the opponent caused un-necessary delay. The opponent being the insurance company bound to settle the claim and vehicle was insured with the opponent. The non-settlement of the claim of the complainant immediately by the opponent is nothing but deficiency of service on the part of the opponent. The opponent without settling the claim caused un-necessary delay with deliberate intention, harassed the complainant by postponing the settlement without any reasonable justification. The complainant got issued the legal notice through his counsel to the opponent on 17-12-08. The said notice was duly served on the opponent. The opponent neither replied to the said notice nor complied with the notice demands. Under the above said facts and circumstances of the case the complainant has filed this complaint for the above said releifs.

4. In pursuance of statutory notice issued by this forum, the opponent entered appearance through its Advocate and filed its version contending that, the complainant has allegedly used the vehicle bearing registration no.KA-22-A-7559 in violation of the permit issued as Tourist vehicle as on the date of the alleged accident. Clause 9c of the permit clearly stipulate that, the said permit does not entitle the holder to run the vehicle as a stage carriage. The act of the complainant namely plying of the vehicle for hire using it as a stage carriage and other allied acts amounts to clear violation of permit. As the policy is subject to the provisions of Section 66 of M V Act.

5. Further, misrepresentation by the complainant as to the purpose of use, names of the persons specifically indicated by the complainant as the persons allegedly carried in the vehicle on the date and time of accident, as well as overloading of passengers in excess of the permit capacity (40 to 50 persons) carried as against the permitted capacity of 31+2 as could be seen from the police records, which was in dispute between the complainant and the opponent.

In the course of correspondence while processing the claim which was not complied and awaited its compliance and hence, the claim is withheld for the reasons on the score of the non-supply of information with clarification and documents sought by them as per the terms and conditions of the policy. Under such circumstances, the question of liability does not arise and hence, the opponent urged for deletion of opponent from the proceedings with exemplary costs. The complaint involved complicated questions of liability and facts and it requires elaborate and great deal of oral and documentary evidence and detailed cross examination is necessary, which cannot be adjudicated properly in the summary jurisdiction. The opponent has denied the extent of damages caused to the bus bearing registration No.KA-22-A-7559 which belongs to the complainant as mentioned in the claim petition. The opponent has denied the amount of Rs.7,25,429/- spent towards repairs. The opponent has denied all the accidental damages sustained to the complainant’s bus which the complainant has attended repairs and spent Rs.7,25,429/-.

The liability of the opponent is subject to the violation of Driving License of person who was driving the vehicle at the time of alleged accident, permit, RC, FC and other documents as contemplated under MV Act and Rules. The liability of the opponent is subject to the terms and conditions of the policy of insurance issued by the opponent in favor of the complainant at the relevant point of time. The opponent is ready to settle the claim as per the terms and conditions of the policy issued in this regard, subject to furnishing the required documents, information and fulfillment of the procedures to be adopted in this regard. The complainant has used the vehicle as against the terms and conditions of the policy. The opponent called upon the complainant for specific clarification as to the reasons for the difference in the name of the passengers as the name of 30 passengers indicated by the complainant as the list of the carried in the vehicle on the date of accident does not match with that of the injured persons.

As per the medico legal case and wound certificates issued by the concerned medical authority pertaining to the said accident. Further, the opponent sought clarification on over-loading of passengers as stated in the police documents name the statement of various injured persons are disclosing that there are about 40 to 50 persons being carried in the Bus at the time of accident, where as the authorized carrying capacity is only 31 + 2 as per the RC and Insurance Policy. The complainant has not produced the documents and furnished the clarification sought. Non fulfillment of terms and conditions of the contract of insurance will not attract the deficiency of service on the part of the opponent. Hence, the complaint should be dismissed.

6. The GPA holder of complainant namely Balakrishna Rao has filed his affidavit evidence in lieu of chief examination. The complainant has produced several documents in support of his case. One K B Kaveriyappa, the Divisional Manager, New India Assurance Company Ltd., Davanagere ahs filed his affidavit evidence on behalf of the opponent by way of chief examination and produced several documents.

7. Both the parties have submitted their written arguments, in addition to the oral arguments.

8. Now, the points that arise for consideration of this Forum are as follows:-

i). Whether there is any deficiency of service on the part of

the opponent?

ii) If so, whether the complainant is entitled to the reliefs as sought?

iii) What Order?

9. Our findings on the above points are as follows:-

i) Point No.1: Affirmative.

ii) Point No.2: As entitled to the extent stated below.

iii) Point No.3: As per order below:

for the following:-
REASONS

10. The Learned Counsel for opponent has submitted his arguments, referring to various authorities reported in 2007 SCCL.COM 1069 of our Hon’ble Supreme Court of India.

2006(I) CPR 146 NC of our Hon’ble National Consumer Disputes Redressal Commission, New Delhi.

Further, the learned Counsel for opponent has relied on a decision reported in 2006(I) CPR 202 NC of our Hon’ble National Consumer Disputes Redressal Commission, New Delhi.

Further, the learned Counsel for opponent has submitted his arguments referring to 2006(I) CPR 386 of our Hon’ble Karnataka State Consumer Disputes Redressal Commission, Bangalore.

Further, the learned Counsel for opponent has submitted his arguments referring to a decision reported in 2006(I) CPR 184 NC of our Hon’ble National Consumer Disputes Redressal Commission, New Delhi.

11. We have gone through the proportions of Law laid down in the above cited decisions. The above said proportions of law laid down in the above said decisions are not aptly applicable to the facts of the present case.

12. Of course , there is no dispute with regard to the proportions of law laid down in the decisions cited above. It is not the contention taken by the opponent that, the driver had no valid and effective Driving License to drive the said Bus at the time of accident. Keeping in view the proportions of law laid down in the decisions cited above, we would like to consider the case on hand.

13. The GPA holder of the complainant has filed his affidavit evidence re-iterating the averments and the allegations made in the complaint in his affidavit evidence. The opponent K V Kaveriyappa, Divisional Manager has filed his affidavit evidence re-iterating the contention taken by the opponent in its version, in his affidavit evidence. We have gone through the facts sworn to in affidavit by both parties. According to the opponent that, the complainant used the said vehicle in violation of the permit issued as tourist vehicle as on the date of the accident. As 9(c) of permit clearly stipulates that, the said permit does not entitle the holder to run the vehicle as stage carriage. According to the complainant that, he is the owner of the heavy passenger vehicle, i.e. a tourist bus with all India National permit having the registration no.KA-22-A-7559, and the complainant is the owner of the said bus is not in dispute. There is no material on record to show that, the complainant used the said vehicle as stage carriage though the permit was issued to use it as tourist vehicle. Now it has to be seen how far the opponent is able to establish that, the complainant used the said tourist bus as stage carriage. Now heavy burden is on the opponent. The complainant has produced the GPA executed by him in favour of one Balakrishna Rao. The Complainant has produced the schedule of premium. It is clear from this schedule that, the complainant was paying yearly Rs.32,878/- towards premium in respect of the said vehicle.

The complainant has produced the Insurance Policy, i.e. passenger carrying commercial vehicle, policy package. On going through the insurance policy, it is found that, the policy issued by the opponent was valid with effect from 7/8/08 to midnight of 6/8/09. In this policy, the ID value of the vehicle of the complainant mentioned as Rs.11,00,000/- . The complainant has produced the receipt for having paid the premium. The complainant has produced copy of the charge sheet. It is clear from this charge sheet that, Bharamasagara police after investigation have submitted charge sheet against one Shabbir Abdul Razak Shaikh, the driver of the vehicle bearing registration No.MH-06-8819. It is clear from the charge sheet that, the said accident was due to rash and negligent driving of the said Lorry by it driver. It is also clear from the charge sheet that, the said driver of the lorry came by driving the said lorry in rash and negligent manner and dashed against the bus of the complainant and caused damages to the said bus.

It is also clear from the charge sheet that in the said accident nearly about 14 passengers sustained simple and grievous injuries. The said fact is proved by the wound certificates produced by the police along with charge sheet. It is clear from this charge sheet that, the said accident was due to the rash and negligent driving of the bus by the driver of the lorry and the driver of the said bus was not rash and negligent in driving of the bus. It is clear from the material placed on record that, the said lorry came and dashed against the bus. The complainant has produced the I.M.V. report. It is in respect of vehicle bearing No.KA-22-A-7559. The said vehicle is heavy passenger vehicle. The motor vehicle inspector examined the said vehicle and mentioned the details of the damages caused to the said vehicle in this IMV report. The IMV Inspector visited the spot and inspected the said vehicle on 11/5/08 at 4 pm. The IMV has opined that, the said accident was not due to any mechanical defects of the said bus. On going through another motor vehicle accident report the said IMV inspected the MH-06-8819 heavy goods vehicle and mentioned the details of the damages caused to the said goods vehicle.

The IMV has opined that, the said accident was not due to any mechanical defects of the said vehicle. The complainant has produced the break up details of accident repairs and replacement carried and the expenditure incurred. It is clear from this break up details the complainant spent Rs.4,44,000/- for the purpose of repairs and replacement carried. The complainant has produced another brake up details. It is clear from this document that, the complainant has spent Rs.64900/-. The complainant has produced the tax invoice (cash) issued by Prakash Auto Electric and engineering works. It is issued for Rs.10690-81 paise. The complainant has produced another tax invoice (cash) issued by the said prakash auto electric and engineering works for Rs.12585/-. The complainant has produced tax invoice (cash) spent towards repairs and replacement of materials. The complainant has produced 8 cash bills to show that, the complainant has paid huge sum or spent for repairs and replacement of the parts of the said vehicle.

The complainant has got issued a legal notice to the opponent claiming compensation of Rs.7,25429/-. It is clear from this notice, that, the complainant made several requests and representation to pay the amount spent by him for repairs of the said vehicle. The opponent has produced 32 documents. The opponent has produced the letter written by the opponent to the complainant seeking clarification and document required. The complainant has produced another letter (written by the opponent and opponent sought clarification and document required from the complainant) . The said informations were called for from the complainant for further processing of the claim of the complainant. It is necessary to extract the necessary clarifications sought.

1. your specific clarification regarding permit (Tourist vehicle) issued by Transport authority and the amount of tax being paid by you particularly in the light of the purpose for which the above vehicle is being used.

2. clarification regarding declaration given by M/s Kale Agency, Sorab dated 9/5/08 in your contract from & also a separate letter to the effect that a marriage party of 30 persons were carried for 2 days from 9/5/08 & 10/5/08 to Bengaluru whereas the statements given by various injured persons & forming part of the final investigation report against FIR 142/08 of Bharamasagara PS clearly indicates that the persons carried in the bus on the date of accident were neither that of a marriage party nor a related group who were traveling for the said purpose & were picked at various pick-up points.

3. Further, the names of 30 passengers indicated by you as the list of passengers carried in the vehicle on the date of accident does not match with that of the injured persons as per the MLC & wound certificate issued by Medical board/hospital. Your specific clarification is sought as to the reasons for the changes in the passenger names.

4. Your specific attention is also drawn to the statements of various injured persons which refers to 40 to 50 persons being carried in the bus at the time of accident whereas the authorized carrying capacity is only 31+2. We appreciate our clarification on overloading of passengers as inferred in the police documents.

14. According to the opponent that, the capacity of the said vehicle was 31+2. According to the opponent as against the said capacity the complainant carried 40 to 50 persons. It is clear from the material placed on record that, the accident was due to the rash and negligent driving of the lorry by it driver and the said lorry came and dashed against the bus of the complainant. There is no rashness or negligence on the part of the driver of the bus. Mere, carrying of more passengers than the seating capacity is not sufficient to hold that, the accident was due to the rash and negligent driving of the said bus by its driver.

On going through the police papers it is found that, Bharamasagara police registered a criminal case against the driver of the lorry and the said lorry came in high speed and dashed against the bus of the complainant. Bharamasagara police registered a crime no.142/08 against the driver of the lorry for having committed offences punishable u/s 279, 337 and 338 IPC under the above said circumstances, the heavy burden is on the opponent to establish that, there is any nexus between the rash and negligent driving of the bus and carrying of more passengers in the bus. There is no negligence or rashness on the part of the driver of the bus. There is no clear cut evidence on record to show that, the complainant carried more passengers than, the permitted capacity of 31+2. Ofcourse, the police have recorded the statements of witnesses, but some of them have stated that, there were about 40 to 45 persons. On going through the wound certificates, it is clear that, only 14 persons sustained injuries.

That, the opponent has failed to establish that, the complainant carried 40 to 45 persons as against the sanction capacity of 31+2. The insurance company sought several clarifications as per letter dt.7/1/09. The opponent has produced the letter written by Mahadeva Motor Service to the opponent. The said Mahadeva Motors produced several receipts for having received the amount. The opponent has produced other receipts issued by Mahadeva Automobiles, Prakash Auto Electric, Pragathi Engineering works. The complainant has produced cash bills, including the invoice, issued by Veeravahana Udyog Pvt Ltd., . The opponent has produced another letter written by Kale Travels Agencies, Soraba. It is clear from this letter, that the said vehicle was taken on hire by Kale Travel Agency, to carry marriage party from Soraba to Bangalore. The said vehicle was taken on hire for Rs.14000/-. There is no material on record to show that, the complainant used the said vehicle as stage carriage. There is no any evidence on record to show that, the complainant had taken passengers in the middle by collecting charges. In the absence of any such evidence, it is impossible to believe the contention taken by the opponent that, the complainant used the said vehicle as stage carriage.

In the absence of any cogent consistent satisfactory and sufficient evidence, it is impossible to say positively that, the complainant used the said vehicle as stage carriage. The complainant has obtained All India National Permit. It is clear from the evidence on record that, the complainant was using the said bus as tourist bus. In view of the same the case of the opponent that, the complainant in contravention of the permit conditions used the said tourist bus as stage carriage. Therefore, the repudiation of the claim made by the opponent is not correct. Mere carrying of more passengers than, the capacity of the vehicle is not sufficient to hold that, the complainant violated the terms and conditions of the policy. First of all, the opponent has failed to establish that, the complainant carried 40 to 45 persons in the said bus in violation of the terms and conditions of the policy and permit.

The opponent has produced the motor survey report given by S K Veeranna, Insurance Surveyor and loss assessor. The surveyor has given report on 12-6-08. It is clear from the surveyor’s report, the said permit is bearing no.TVP/Bus/316/2006/2007. the type of permit was tourist vehicle. Rout area of operating through out India and the passenger load carrying 31+2=33. The Surveyor and loss assessor mentioned the details of the parts repaired and replace and the value of the such parts. There is lot of difference between the estimation given by Mahadeva Motor Service and the loss assessed by the Surveyor. Surveyor has given the details of the parts repaired, parts replaced and the amount spent. The Surveyor assessed the total loss at Rs.1,03,054-34 paise. i.e. Rs.16,529/- additional vatt item 1 to 49 at 12.5% at Rs.12,809-10 paise less depreciation Rs.12,939/- and after deduction Rs.1,16,459-17 paise and + Rs.13595/- totally Rs.1,30,054-34 paise. The surveyor has given the summary of assessment. It is necessary to extract the summary as it is. The surveyor assessed the insurers liability at Rs.2,81,914/- after deducting 10% depreciation and to some of the parts 50% depreciation, salvage at Rs.10,000/-. The surveyor has assessed the total loss payable by the opponent to the complainant at Rs.2,81,916/-. The complainant and the opponent have not objected to the said surveyors report. We have no reason to dis-agree with the said surveyors report. On going through the surveyors report, it can be stated that, the estimate given by the said Mahadeva Motor Service is on higher side.

The said vehicle was re-inspected by one M. Ashoka in-house surveyor. In re-inspection the said Surveyor accepted the report given by the S.K. Veeranna, and supported the value assessed. The said Veeranna Surveyor scrutinized the bills and the amount spent towards labour charges, and recommended 10% depreciation. The complainant has produced certified copy of the permit in respect of tourist vehicle issued in form no.KMV-49. The said permit is valid with effect from 8-1-07 to 7-1-2012. The complainant has produced the authorization, permit, which is valid from 8/1/07 to 7/1/08. The complainant has produced some other documents, but they are not so relevant for our purpose. After taking into consideration, the report of the Surveyors, it can be stated that, the surveyor assessed the loss caused to the said vehicle or liability of the opponent to pay to the extent of loss caused to the complainant as per the Surveyors report. One M. Ashoka in-house surveyor in his letter dt.13/6/08, informed that, salvage may be collected to avoid mis-use of the same by insured.

The surveyor S.K. Veeranna, ultimately by his summary rounded of the total claim to the extent of Rs.2,52,911/-. We have already stated above, that we have no reason to dis-agree with the surveyor’s report. The surveyor after taking into consideration all the aspects of the case and material or parts replaced and repaired and after deducting depreciation assessed the loss caused to the complainant. As we have already stated above that, the complainant has not used the said vehicle as stage carriage, on the contrary, it is clear from the material placed on record that, the complainant had taken All India Permit. The said permit was valid right from 8-1-07 to 7-1-2015. the routs area in which permitted to ply mentioned as through out India. The complainant has also produced authorization, permit through out India.

This permit is valid with effect from 8-1-2007 to 7-1-2008. The complainant has produced several polices to show that, the said policy was renewed from time to time without any gap. It is clear from the statement of witnesses that, the said accident was due to the lorry driver who came in a rash and negligent manner and dashed against the bus. As we have stated above, that some witnesses in their statements, recorded by the police have stated that, there were 40 to 45 passengers some of them have stated that, 10 to 15 passengers sustained some grievous and simple injuries. According to the case of the complainant that, the said vehicle was taken by some marriage party to carry the persons to Bangalore. There is no iota of evidence on record to show that, the complainant used the said bus as stage carriage. In view of the same the rejection of the claim by the opponent or non-settlement of the claim on the ground that, the complainant allowed 40 to 45 persons to travel in the said bus instead of the capacity of 31+2 and violated the terms and conditions of the permit and the policy.


14. According to the opponent at the time of accident there were 40 to 45 passengers in the said bus. In order to appreciate that, the complainant was carrying 40 to 45 persons in the said bus at the time of accident. Trip sheet is absolutely necessary. The opponent has not taken any steps to secure the trip sheet of the said bus calling upon the complainant to produce the same. On the date of accident the policy issued by the opponent was valid and in force. The driver had valid and effective driving license. There is no satisfactory evidence on record to show that, there was any nexus between the passengers carried and the accident in question. In view of the same repudiation of the claim made by the opponent is illegal. The non-settlement of the claim by the opponent is nothing but deficiency in service on the part of the opponent.

15. Our Hon’ble National Commission has held that, in a decision reported in a case of National Insurance Company V/s Chadrappa Veerappa karadagi 2001(3) CPR 191=2002(2)CLT NC 313 that,

Insurance claim-repudiation-on the ground that the vehicle at the time of accident was carrying as many as 23 passengers in place its capacity of carrying 12+1 passengers-petitioner-insurance company failed to establish any nexus between the passengers carried and accident, in question-another contention of the petitioners regarding interpolation in the copy of FIR submitted to them repelled for want of evidence petition dismissed.

16. Further it is held in a decision of our Hon’ble National Commission reported in 2001(2) CPR 73=2002(2) CLT (NC) 304 in a case of National insurance Company Ltd., V/s Moolchand Singh Rathore that:

Insurance claim-Repudiation-on the ground that, the was registered to carry 5 passengers apart from driver, but at the time of accident there were 20 persons traveling in the vehicle. There was no evidence that, the accident-occurred o account of excess passengers-It was also not proved that those persons who were in the vehicle-There was no evidence that the accident occurred on account of excess passengers –It was also not proved that those persons who were in the vehicle had paid any charges –order of the State Commission awarding Rs.65000/- as damages which was itself recommended by the petitioner. Insurance Company at Rs.10000/- as compensation along with interest at 12% upheld –petition dismissed.

17. Now the complainant has claimed the compensation of Rs.7,25,421/-, the compensation claimed by the complainant is highly excessive or exorbitant as per surveyor report, the surveyor assessed the loss caused to the complainant at Rs.2,52,911/- . In view of the parts replaced and repaired Surveyor after taking into consideration parts replaced and repaired assessed the above the said loss, by giving depreciation, etc. Of course the complainant has claimed the compensation as per estimation given by Mahadeva Motor Service, Davanagere.

The said service centre estimated the loss caused to the said vehicle at Rs.4,44,000/-. After taking into consideration damages caused to the vehicle mentioned by the Motor vehicle Inspector in his report and the value of the materials, labour charges, accepted and approved by the surveyor, estimation produced by the complainant is not correct. The said estimation is highly excessive. Therefore, it is not just and proper on our part to accept the said estimation of the claim made by the complainant. Further, we feel it just and proper to direct the opponent to pay the compensation as per surveyors report. Of course there is long delay in settling the claim of the complainant.

The opponent ought to have considered the claim of the complainant immediately, as the policy was valid and inforce. The opponent without settling the claim caused un-necessary mental agony to the complainant and forced the complainant to file this complaint. After taking into consideration the facts and circumstances of the case we feel it just and proper to direct the opponent to pay compensation of Rs.2,52,911/- together with interest at 10% PA from the date of accident till realization , i.e. from 10-5-08. Further, the opponent is hereby directed to pay a global compensation of Rs.10,000/- for deficiency in service, mental agony and towards litigation expenses. Accordingly we answered point no.1 in affirmative, point no.2 as entitled to the extent stated below.

Accordingly we answer point No.1 in affirmative , Point No.2 as entitled to the extent stated below .

Point No.3:

18. In view of our findings on points 1 and 2, the complaint filed by the complainant against the opponent has to be allowed in part. In the result we pass the following.

: ORDER :

o The complaint filed by the complainant against the opponent is partly allowed.

o The Opponent is hereby directed to pay a compensation of Rs. 2,52,911/- to the complainant together with interest at 10 % Per Annum from 10-5-08, i.e. from the date of accident till realization.

o Further the Opponent is hereby directed to pay a global compensation of Rs.10,000/- to the complainant, for deficiency of service, mental agony and towards litigation expenses.

Shri Pankaj Sharma S/O Shri Dhani Ram Sharma,

R/O Village Bhajyar, P.O. Halog, (Dhami)

Tehsil and District Shimla, H.P.
… Complainant.

Versus
The New India Assurance Company Ltd.

Through its Manager,

Bhagra Niwas, The Mall, Shimla-171001.
…Opposite Party
O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is owner of Swaraj Mazda bearing registration No.HP-51-1348, which was insured with the OP-Company and which met with an accident on 29.09.2006, during the currency of the insurance policy and suffered extensive loss. The factum of its having met with an accident was brought to the notice of the OP-Company, as also, to the Police. It is averred that, he in order to make the aforesaid vehicle road worthy, incurred Rs.49,669/- on its repair, but the OP-company, failed to reimburse the said amount to him. Hence, it is asserted that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint raised preliminary objections regarding breach of terms and conditions of the insurance policy. On merits, it is contended that the driver who was driving the vehicle at the relevant time was having learner’s licence and was not accompanied by a duly licensed driver, hence, the OP-Company was well within its right to repudiate the claim of the complainant. Hence, it is contended that there was no deficiency in service on their part.

3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their rival contentions.

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

5. The OP-Company has taken to repulse the claim of the complainant, as, asserted before this Forum on the ground that the person who was driving the vehicle, which suffered a loss, in, an accident, was, merely holding a learner’s licence to drive the category of the vehicle which he was driving at the relevant time, hence, when the provisions of Rule 3 of Central Motor Vehicle Rule, 1989 necessitate, that, when the category of vehicle which the driver Pitamber Singh while holding a learner’s licence was driving is, required to be accompanied by duly licensed instructor, yet, the said obligation under Rule 3 of Central Motor Vehicle Rule, 1989 has been infracted, therefore, it is impressed upon this Forum that the repudiation of the claim of the complainant by the OP-Company, is, tenable.

6. Even though, the complainant has urged that at the relevant time he was accompanied by Bhima Nand who was duly authorized to drive the category of the vehicle, which Pitamber Singh was driving, at, the relevant time, yet, the averment in the complaint appears to be a mere concoction and an after thought, inasmuch, as, when in the FIR lodged at the instance of the complainant, their, is only a recital of his being accompanied by a Parichalak. Obviously, omission, in, the FIR, of, Bima Nand accompanying Pitamber Sharma, at, the relevant time when the vehicle met with an accident, is, to be accorded truth being a spontaneous version of the incident. As a sequata the averments in the complaint that, he, was, at, the relevant time being accompanied by a duly licensed instructor Bhima Nand, is, hence, a belated afterthought, hence, untruthful, to which no consequence ought to be given by this Forum.

7. The conclusion, is, that when Pitamber Singh while may be holding a learner’s licence to drive the category of vehicle which met with, an, accident, hence, his despite their being a legal necessity of his being accompanied by a duly licensed driver, which necessity for reasons aforesaid, remained un-complied with, therefore, there, was, concomitantly a breach of the terms and conditions of the insurance policy, as well, as, of Rule 3 of Central Motor Vehicle Rule, 1989. As a sequel, for breach of the aforesaid terms and conditions, the, repudiation of the claim by the OP-Company of the complainant, is, tenable.

8. In the light of the above discussion, it is obvious, that there is no merit in the complaint. Resultantly, the complaint is dismissed.

Mytheen Kannu Salim

M.Shahul Hameed

Mohammed Beevi
...........Appellant(s)

Vs.

The New India Assurance Co Ltd

The Manager
...........Respondent(s)














ORDER






In short, the facts giving rise to this complaint are the following: The 1st complainant had taken an insurance policy from the 2nd opposite party under 'Pravasi Suraksha Kudumba Arogya Scheme' and the certificate of insurance was issued on 24/1/2000 and the policy expires on 23/1/2005. On 31/3/2002 the 2nd complainant was taken to the G.G. Hospital, Thiruvananthapuram for the discomforts and the illness which she had never experienced previously in her life time and there she was treated firstly as out patient.


The test done revealed that the pain and discomforts are due to the presence of 'Right lower ureteric calculus and right renal calculus'. Such discomforts and pain were not experienced ever before by the 2nd complainant in her life time and the presence of the said calculus had come to the knowledge of the 2nd complainant only on the discovery of it on diagnosis which was done on 31/3/2002. Since the abdominal pain and discomforts are due to the presence of the calculus, the consulted urologist of the G.G. Hospital, Dr. N.P. Sasikumar advised surgery for removing the said calculus for proper cure and remedy. Accordingly as per the advice of the doctor, the 2nd complainant was admitted in the said hospital on 7/5/2002 and her surgery was done by the doctor on 11/5/2002.


After the treatment she was discharged from the hospital on 12/5/2002 under the advice of consulting the doctor for post operational check ups after a week and a discharge summary was also issued. For the treatment and surgery of the 2nd complainant, they had to incur a total sum of Rs.20,195.68. Accordingly the 3rd complainant on 20/5/2002 submitted the claim form with all details and documents and the details of expenditure incurred for the treatment with the required Medical Certificate from the doctor who attended and treated the 2nd complainant. But the opposite parties rejected the claim of the complainant stating that the disease is pre-existing which is an exclusion under the policy terms and conditions. Hence this complaint has been necessitated.



2. The opposite parties have filed their version. It has been contended that the claim submitted by the 1st complainant could not be honoured, as from the records submitted and the investigation conducted by the Private Investigating Agency deputed by the opposite parties, it was found that the disease of the 2nd complainant was pre-existing prior to the issuance of the policy and that the 2nd complainant was suffering from abdomen and kidney problems from 1999 onwards whereas the insurance policy was taken from 24/1/2000 onwards and as per the exclusion under the terms and conditions of the policy all pre-existing diseases are excluded. The opposite parties have not committed any deficiency in service or unfair trade practice and hence prays for dismissal of the complaint.



3. The 3rd complainant has filed affidavit and marked Exts. P1 to P8. DW1 & DW2 were examined on behalf of the opposite parties and marked Exts.D1 to D6.



4. From the contentions raised the following issues arise for consideration:


1. Whether the act of the opposite parties in repudiating the claim justifiable and whether there is deficiency in service on the part of the opposite parties?


2. Whether the complainant is entitled for the reliefs claimed for?


5. Points (i) & (ii): The policy is admitted and there is no dispute with regard to the validity of the same also. The main contention of the opposite parties in repudiating the claim of the complainant is that, the disease of the complainant was in existence prior to the taking of the policy and hence his claim has been rejected as it comes under the exclusion clause. Hence the point for consideration is whether the alleged disease of the complainant is pre-existing which is an exclusion under the policy terms and conditions.



6. As per Ext.P5 discharge summary, it has been diagnosed as 'lower uretric calculus, renal calculus and bronchytal asthma'. The marking of the document has been objected by the opposite parties but DW1, Dr. Sasi Kumar, has admitted that it is the copy of discharge summary issued from their hospital and hence the objection cannot be sustained.




7. DW1, is the Chief of Urology in G.G. Hospital. He has deposed that 'Ext.P7 is the photocopy of the medical certificate issued by me and the signature is mine'. The doctor has further deposed that 'Only after the investigation done by me, stone was diagnosed, she has not produced any certificate of previous treatment done by her for the same disease'. During chief examination DW1 deposed that 'She approached me with a pain in the abdomin due to acid peptic disease for 3 years bronchial asthma for 25 years, on physical examination I have found that pain of the right side, which was suggestive of stone disease, acid peptic disease has no connection with the stone disease'. During cross examination, DW1 has clarified that 'At that time she was suffering from pain due to stone for the past 3 weeks, acid peptic disease for 3 years'.


As per above, the entries in Ext.P7 and D3 are to be looked into. There is no over writing in Ext.P7 (photocopy), but in Ext.D3 which is also a photocopy, towards the entry No.9. 'How long has the patient been suffering from this disease as on the date of first consultation' a correction has been made and instead of 'as on' it has been corrected as 'before' and the answer for the same has been written in blue ink in D3 which is a photocopy. From the above, there is no hesitation to conclude that the said entries have been made after taking the photocopy. DW1 was deposed that 'Normally when I issue a certificate, it is given in original.


But here it is a portion written in photostat. About the signature there, I am not 100% sure'. At this juncture, the burden is heavily on the side of the opposite parties to prove that Ext.D3 is not a corrected or fabricated one. The learned counsel for the the complainant had filed a petition for direction to the opposite parties to produce the original documents of the Attending Doctor's report and the claim form submitted by the 3rd complainant. But the opposite parties have failed to produce the original of the Attending Doctor's report. If the original of Ext.D3 had been produced, we could ascertain the veracity of the entries additionally written in Ext.D3. In the absence of the same inspite of specific direction, the only option left open is to take adverse inference.



8. Furthermore, Ext.D1 which is the case record, is only a photocopy and the marking of the same was objected by the complainants' counsel on the said ground itself. The opposite parties have not produced the original so far. As per Ext.D1 page 3, there is a mentioning of history of abdominal pain off and on since 3 years. But Ext.D1 is only a photocopy and since the original has not been produced as directed, we are unable to consider the same.



9. The opposite parties have contended that they have come to the conclusion that the disease of the 2nd complainant was pre-existing prior to the issuance of the policy, on the basis of the records submitted and the investigation conducted by the Private Investigating Agency deputed by the opposite parties. Here an important aspect to be considered is the veracity of the report of the private investigation agency. Here the opposite parties have produced Ext.D5, the report of such an agency. There is nothing on record to prove that the said investigation agency was a licensed one. In such a circumstance, as the opposite parties have failed to prove Ext.P5, that report cannot be relied on as there was nothing to show that the said agency was licensed.



10. The burden of proving that the insured had made false representation and suppressed material facts with regard to the pre-existence of the disease, was undoubtedly on the opposite parties – the Insurance Company. Before us, there has not been any reliable evidence led by the opposite parties to prove that the complainants' case fell under the exclusion clause. We find that the deposition of DW1, Ext.P7 and the non-production of the original of Ext.D3 contradict the strand of the opposite parties. In the above circumstance we find no justifiable ground for repudiation of the claim by the opposite parties since the opposite parties have failed to prove and establish the grounds of repudiation.



11. From the above discussions we find that the repudiation of the claim of the complainants by the opposite parties are arbitrary and not justifiable and the complainants have to be compensated for the deficiency of service of the opposite parties. The complainants have succeeded in establishing their complaint and hence the complainants are found entitled for refund of Rs. 20,196/- with 18% interest from 20/5/2002 till realization along with a cost of Rs. 2,000/-. There is no separate order for compensation since interest has been awarded.

Tmt. Palaniammal,

W/o. Ramasamy,

2-C, Rettikadu, 1st Street,

S.P.Pudur,

Namakkal Town. .. Complainant.



.Vs.



1. Area Manager,

M/s. Bharat Petroleum Corporation Ltd.,

11th Cross, 2/63, New Fairlands,

Sivaya Nagar,

Salem-636 016.



2. M/s. Ponni Gas Service,

19-A, Paramathy Road,

Namakkal Town,

Namakkal.



3. The New India Assurance Co. Ltd.,

Ram Complex, 2nd Floor,

29, Paramathy Road,

Namakkal-637 001. ..Opposite Parties.



This complaint coming on for final hearing before us on 14.07.2009 in the presence of Thiru P. Sanjeevi, Advocate for Complainant and of Thiru K. Shanmugam, Advocate for the Opposite Party No.1 and of Thiru P. Rajkumar, Advocate for Opposite Party No.2 and of Thiru P. Chandrasekaran, Advocate for Opposite Party No.3 and after hearing the arguments of Complainant, this Forum passed the following:
ORDER

This complaint is filed under Section 12 of the Consumer Protection Act.

The crux of the complaint is : -

The Complainant’s neighbour one Marappan had handed over the keys of his house to her when he went out. After few hours since the said Marappan left, the Complainant smelt gas emanating from Marappan’s house. The Complainant to prevent any untoward incident she opened the door and was trying to open the windows as to let the gas escape. Unfortunately for her, by the time she could open the window, the LPG burst and fire broke out and in the process she suffered extensive burn all over her body due to the faulty cylinder. She was admitted at Kovai Medical College Hospital and spent a sum of Rs.1,75,000/- towards medical treatment. The Complainant then issued notice to Opposite Parties, but in vain. The Complainant had lodged this complaint for compensation, cost etc.

2. The crux of the 1st Opposite Party’s Written Version is:-

The 1st Opposite Party refuted the averments in the complaint and had stated that there was no defect in the LPG cylinder or the regulator. The 1st Opposite Party could not be held liable for the expenses incurred by the Complainant, mental agony etc. The accident was not reported to the police station. No notice claim was sent to the 1st Opposite Party. The complaint has to be dismissed.

3. The crux of the 2nd Opposite Party’s Written Version is:-

The Complainant filed the complaint on 18.09.1998 before the District Forum which was return and then she filed it on 01.02.2000 after 1 year and 4 months without any delay execute petition. The complaint itself was barred by limitation. The complaint was liable to be dismissed.

4. The crux of the 3rd Opposite Party’s Written Version is:-

The Complaint is not maintainable and the Complainant is not a consumer under the proviso’s of Consumer Protection Act-1986. The 3rd Opposite Party denies that accident due to defective cylinder and has stated that the Complainant has filed the complaint for getting unlawful gain from the Opposite Parties. There is 70 days delay in lodging complaint. This Opposite Party is not liable to pay any compensation as the 3rd Opposite Party is no way connected with the Complainant. Hence the complaint has to be dismissed.

5. The Complainant has filed proof affidavit along with 10 documents and the same has been marked as Ex.A1 to Ex.A10. The Opposite Parties have filed proof affidavits and Ex.B1 is marked.

6. The order dated 01.11.2001 passed by this Forum was set aside by the Hon’ble State Commission vide its order dated 13.10.2006 in A.P. 151/2003 and the matter was remanded back to the District Forum for consideration afresh as follows “The District Forum shall proceed on the premise that the Complainant is a consumer entitled to invoke the provisions of the Consumer Protection Act. The District Forum shall afford adequate opportunity to all the parties concerned and decide the matter afresh on the basis of the materials already furnished and to be furnished, the parties being at liberty to produce further evidence before the District Forum”.



7. The points for consideration is:-

1. Whether the complaint is barred by limitation?

2. Whether there is any deficiency in service on the part of

the Opposite Parties and if so to what relief the Complainant is entitled for?



8. POINT No.1:- The cause of action in the complaint are mentioned as 04.10.1997 and 01.07.1998. The complaint dated 11.09.1998 was originally submitted on 18.09.1998. The complaint was returned on 18.09.1998, the complaint has resubmitted the same after compliance on 01.02.2000. The complaint was again returned on 04.02.2000 again the same was resubmitted on 09.02.2000. The Forum has not fixed any time limit for compliance of returns and re-submission of the complaint, as such there is no necessity for filing an application for condonation of delay in re-presentation of the complaint as this Forum is of the view that the delay pointed out by the Opposite Parties will not affect the complaint in any manner. This Forum is of the view that as per Section 24-A (1) of the Consumer Protection Act-1986, this complaint has been filed within the period of two years from the date on which the cause of action arose.. We therefore hold that the present complaint preferred by the Complainant is not barred by limitation.

9. POINT No.2:- The Complainant’s neighbour one Marappan had handed over the keys of his house to her when he went out. After few hours since the said Marappan left, the Complainant smelt gas emanating from Marappan’s house. The Complainant to prevent any untoward incident she opened the door and was trying to open the windows as to let the gas escape. Unfortunately for her, by the time she could open the window, the LPG burst and fire broke out and in the process she suffered extensive burn all over her body due to the faulty cylinder. She was admitted at Kovai Medical College Hospital and spent a sum of Rs.1,75,000/- towards medical treatment. The Opposite Parties have contended that there was no proof for the accident and the FIR is filed belatedly.


This Forum is of the view that when such a very major accident had taken place, the Complainant’s precious life has to be saved first, she had to given immediate first aid in Namakkal and thereafter had to be shifted to Kovai Medical College and Hospital and the need to lodge the complaint did not loom at large at that point of time and hence the Complainant could not be faulted on the score of lodging belated complaint. The case summary and discharge record issued by the Consultant Plastic Surgeon, Kovai Medical Centre and Hospital Limited has been produced and marked as Ex.A3. A perual of Ex.A3, it can be seen that “alleged to have sustained burns at about 9.30 PM on 04.10.1997 at her neighbours house, S.P.Pudur Namakkal, gas cylinder leaked in that house and caught fire when she put on the switch.


First aid was given at Kumaran Poly Clinic, Namakkal. Referred from the hospital us for further management”. The hospital record and the FIR substantiates that the accident is result of leakage/burst of gas cylinder. In a complaint/notice with to regard to such a major accident as a result of defective cylinder/regulator has been laid, the Opposite Parties ought to have taken immediate steps to enquire into the same and providing suitable replies instead of shirking the responsibilities by raising technical objections. The Opposite Parties has not placed any material/documentary evidence to show that the accident is not a result of defective gas cylinder/regulator.

10.The Hon’ble State Consumer Disputes Redressal Commission in the case of

Aklesh Kumar Bansal & Others

Vs.

M/s. Flame Gas Services & Others.

reported in III(1992)CPJ 326 the Commission had held that the onus is on the manufacturer to show that they had complied with all regulations under the Gas Cylinder Rules-1981.

The Hon’ble State Consumer Disputes Redressal Commission, Madras in

Tmt.Lakshmi Sankaranaryanan & Others

Vs.

M/s. Indian Oil Corporation

reported in 1991(3) CPR 294 the accident resulted due to defective valve and the Complainant had to be hospitalized. She had disfigurement in an accident and she had to be hospitalized. She had pain and suffering. It was held by the T.N. State Consumer Disputes Redressal Commission that the Opposite Parties would be liable as the loss was caused by the accident on account of the defective LPG cylinder.

The Hon’ble Karnataka State Consumer Disputes Redressal Commission in the case of

Tmt. Saraswathi & Others

Vs.

M/s.Ram Agencies & Others.

reported in 2006 TNCR 159 held that Government of Inida has issued certain instructions to the manufacturers and distributors of LPG to follow them while supplying the gas cylinders to the customers. One of the instructions is that before supplying the gas cylinder to the customers manufacturers and distributors to educate the customers regarding the use of gas cylinders. It is also obligatory on the part of manufacturers and distributors to examiner whether there is any leakage of gas from the cylinder or from the rubber tube.

11. In the complaint and proof affidavit it has been clearly stated by the Complainant that cylinder was kept in the locked house. When the Complainant smelt gas she had opened the door and was trying to open the window so as let the gas escape unfortunately by the time she could open the window the LPG cylinder burst and fire broke out and in the process she suffered extensive burn injuries all over the body. In this present case no contra evidence has been placed by the Opposite Parties for the cause of accident. In view of the above discussions we have no hesitation to hold that the explosion and the resultant injuries to the Complainant is due to defective gas cylinder. The Complainant has suffered grievous injuries as the result of the explosion/accident. She had incurred considerable expenditure for medical treatment apart from pain and suffering undergone by her and as such she is entitled for compensation.

12. The 1st Opposite Party is the manufacturer of the gas cylinder. The 2nd Opposite Party is the distributor. The accident was due to supply of defective gas cylinder. The claim therefore has to be met by the Opposite Parties 1 and 2 jointly and severally and the 3rd Opposite Party being the insurer is liable to pay the compensation amount to the Complainant.

13. In the result, the complaint is allowed and the 3rd Opposite Party as the insurance company is directed to pay a sum of Rs.2,75,000/- to Complainant as compensation along with interest at the rate of 7.5% from the date of this order till the date of payment. Further the Opposite Parties are directed to pay Rs.1,500/- as cost of this complaint. Time for payment one month from the date of this order.

Girish Chandra Agarwal S/o late Shatrughan Prasad Agarwal

R/o Director of M/s Gola Cold Storage Pvt. Ltd. At & P.O.-

Gola, P.S.- Gola, Dist.- Ramgarh At Present C/o Moti Lal

Agarwal, P-27, Sec.IV, City Centre, Sec.IV, B.S.City, Bokaro

Versus

1. The Divisional Manager,

The New India Assurance Co. Ltd. Bokaro Divisional Office, City Centre, Sec.IV, Bokaro Steel City.

2. Senior Manager,

The New India Assurance Co. Ltd. Regd. & Head Office, New India Assurance Building, 87, Mahatma Gandhi Road, Fort Mumbai.

-: Judgment:-

The complainant has filed this consumer case against the opposite parties for payment of Rs. 161215/- with 18% interest, together with Rs. 30000/- as compensation and Rs.8000/- as cost of litigation.

2 Brief fact of the case is that the complainant is the director of Gola Cold Storage Pvt. Ltd. and had insured the plant and machineries electrical installation, furniture, fixture and fitting of M/s Gola Cold Storage on 13.10.2006 for the period of one year vide Policy No.-540400/46/06/04/00001258 from the office of the opposite party No.1 for the total sum of Rs. 9822900/-. The said policy was valid from 13.10.2006 to 12.10.2007. On 17/18.01.2007 the coil of 200 KBA Transformer was stolen away from the premises of Cold Storage and hence a FIR vide Gola P.S. Case No.- 05/2007 dated 18.01.2007 was lodged.


The I.O. after investigation submitted Final Report vide No. 12/2007 dated 31.01.2007 in the Court of CJM, Hazaribag in which it has been mentioned that the alleged theft has been committed from the premises of M/s Gola Cold storage during the exiting period of the policy. The complainant submitted claim form in the office of the opposite party No.1 along with valuation report. On 01.02.2007 the complainant informed the Divisional Manager, New India Insurance Co. Ltd. Bokaro regarding the theft of copper coil of transformer on 17.18.01.2007 and requested the Divisional Manager for early repairmen of Transformer, so that his business could run smoothly.


The complainant also wrote a letter to the Divisional Manager on 15.02.2007 informing that no Surveyor has been appointed s stated by the Divisional Manager and requested him to get the Transformer inspected and get it repaired as early as possible. However one Sri Mohan Verma/Din Dayal was appointed as Surveyor but informed the complainant that inspection regarding the repair of transformer had been conducted at the work shop of M/s Pradeep Electrical, Tharpakna, Ranchi and also informed the complainant that repair of the transformer has been started by the M/s Pradeep Electrical.


The opposite party New India Insurance Co. Ltd. also issued a letter on 20.04.2007 informing the complainant to get transformer repair as early as possible and submit bill/cash memo so that the claim of the complainant according to the policy may be preceded. Again on 28.08.2007 a letter was received from National Insurance Co. Ltd. informing the complainant to submit bill/cash memo, original satisfied copy of Final Police Report and cash memo of purchase of transformer. Accordingly the complainant submitted all the documents including the estimate value of the repairing and re-binding of 200 KBA transformer issued by the M/s Pradeep Electrical to the opposite party but no action was taken by the opposite party, the complainant had to serve a legal notice through his Lawyer to make payment to M/s Pradeep Electrical other wise the complainant shall be constrained to take legal action against the opposite party.


The Divisional Manager, National Insurance Co. Ltd. Bokaro Division replied the said legal notice stating therein that Insurance Co. has not been received the certified the copy of FIR and requested the complainant to submit all the documents including copy of agreement with State Electrical Board regarding the installation of transformer. On 29.12.2008 the Lawyer of the complainant replied Divisional Manager and also sent the copy of FIR and other documents for process of claim of the complainant. The Divisional Manager again informed the him that bill/cash memo relating to replacement of transformer coil and copy of agreement with electricity board installment of transformer has not been received as yet, so they are unable to settle the claim and requested to arrange the above mentioned documents with further stipulation that the claim file will be finally closed, if these documents are not submitted.


The complainant again sent a letter on 17.01.2009 submitting the original bill/cash memo relating to replacement of transformer coil to process the claim of the complainant earlier. On 04.02.2009 Divisional Manager replied the letter of the complainant that the document required by the insurance co. such as copy of agreement of the State Electricity Board regarding the installation of transformer as well as money receipt relating to repair of transformer have not been furnished to the company, hence the claim is being closed as no claim.

3 The repudiation of claim of the complainant by the opposite party is unfair and arbitratary action as because the opposite party have not right to see any copy of agreement of state electricity board regarding the installation of transformer because it was the case of the complainant that transformer was kept inside the premises of Cold Storage and the coil of the said transformer was stolen away by unknown thieves.


The Insurance policy cover was extended to the plant and machinery, electricity installation, furniture, fixture and fitting and it has not been mention any where in the policy paper that the complainant would have to submit any agreement with State Electricity Board at the time of seeking claim, in case of any damage to the plant and machinery, electricity installation etc. The transformer was not in use, so no agreement was entered with State Electricity Board. However Gola Cold Storage had taken electric connection with SEB in the name of M/s Harihar Cold Storage, Prop. of Girish Chandra Agrawal had been paying the regular bill of the Harihar Cold Storage.


The FIR is also very much clear that coil of the transformer was taken away by unknown thieves and the case has been found true but having no clue regarding offenders. Since the transformer was in ideal condition and was not in use and it was insured by the complainant form the opposite party company, so in case of the theft the opposite party company is legally liable to pay the entire cost of repairmen along with damages for the amount of repairmen the opposite parties have not paid the cost of the repairmen.

4 In the light of above facts and circumstances, it clearly appears that the opposite party is deficient and negligent in service to the complainant and hence the complainant is entitled to get the relief as sought against the opposite parties.

5 Upon issuance of notices, the opposite parties appeared and filed their written statement, stating therein that there has not been deficiency on the part of the opposite party no.1 in repudiation of the claim and as such the complainant does not have any valid reason to invoke the provisions of the Consumer Protection act.1986. The conduct of the complainant would reveal that he has filed the present complaint with malafide intention to derive undue benefit from the opposite party No.1.


The opposite party admits that the complainant has insured the plant and machinery, electric installation, furniture, fixture and fitting of cold storage on 13.10.2006 to 12.10.2007. It is further admitted that on 17/18.01.2007 the coil of 200 KBA of transformer was stolen away from the premises of cold storage for which FIR was lodged by the complainant vide Gola P.S. Case No.-05/2007 on 18.01.2007 in which the informant has accepted in the charge sheet that the transformer was lying in the Baranda of this storage and was not in use, as such this opposite party No.1 is not liable to pay any claim of the complainant.


The opposite party No.1 has issued a letter to the complainant to deposit the bill/cash memo, original certified copy of FIR, cash memo of purchase transformer within 15 days in compliance the letter dated 28.01.2009, the complainant has not submitted any document within 15 days as per the policy conditions. The complainant has also not submitted copy of the agreement with the State Electricity Board regarding installation of the transformer. The opposite party No.1 issued several reminders to the complainant for submission of aforesaid documents but the complainant failed to submit any documents, hence the claim of the complainant was deny by the opposite party No.1.


It is further submitted that in view of the non submission of required documents by the complainant, so the claim is not maintainable a denied by the opposite party No.1. Since despite several letters and reminders issued to the complainant but the complainant failed to submit the documents, hence the opposite party No.1 close the claim as “No Claim”. It is further stated that the Surveyor Din Dayal Prasad submitted his report considering the preliminary service of burglary occurred in the night of 17/18.01.2007 visited Gola Gold Storage and conducted survey and found that the transformer was kept in the Baranda of the cold storage and some unknown person taken away copper coil from the said transformer.


Said transformer was not cover as per policy terms and conditions coverage was given to electrical transformer in installed condition, neither the complainant has submitted any agreement with S.E. B., hence claim of the complainant is denied by the opposite party No.1. Since the transformer was not in use so no agreement was entered with the S.E.B. and the electric connection taken by the S.E.B. in the name of Harihar Cold Storage Prop. Of Girish Chandra Agarwal but the policy has been taken in the name of M/s Gola Cold Storage Pvt. Ltd. so there is violation of the terms and conditions of the policy.


The opposite party further submitted that it is clear in view of the above decisions the theft of coil from electric transformer belong to M/s Harihar Cold Storage lying at the premises of M/s Gola Cold Storage Pvt. Ltd. it was not insured under mentioned policy, hence the opposite party No.1 denied the liability under the policy. Therefore, there is no deficiency in service on the part of the opposite parties, hence the claim of the complainant is not maintainable and the complainant is also no entitled to get any relief as claimed and the present Consumer Complaint Case is fit to be dismissed.

6 Both parties were heard. We have gone through the entire case records and documents filed by the parties. All the materials facts placed before us by the parties have also been considered. Upon close scrutiny of the proposal form in relation to the insurance policy contract in question, it is observed that the following were proposed for insurance coverage- -

i) Plant and Machinery

ii) Furniture, Fixtures, fittings and utensils etc.

iii) Transformer and electrical fittings

The proposal form mentioned above is a part and parcel of the insurance policy in question. It is found that no adjective like installed etc. has been appended to the word “transformer” mentioned in the proposal form signed by the complainant and duly accepted by the insurance co. for issuance of the insurance certificate. In view of the same we conclude to assign the meaning that the transformer covered under the insurance policy in question includes the installed one as well as the spare one available in the Cold Storage Premises for meeting the exigencies arising out of any break down.

7 It is further observed that the surveyor Mohan Verma appointed and inspected by the insurance co. regarding the complainant’s claim had closely monitored the repair of the transformer in question at M/s Pradeep Electricals, Tharpakna, H.B. Road, Ranchi on several occasions. He then had reported the progress of the repair to the complainant accordingly as is evident from the copy of his letter dated 08.03.2007 placed in the case records. The relief of the complainant is based on the repair bill of the transformer in question at M/s Pradeep Electrical, Ranchi, which amount to Rs. 161215/- as per the copy of the bill dated 12.02.2007 available in the case records.

8 While going through the entire case records and documents filed and after considering all the material facts placed before us, it is concluded that there has been no violation of the insurance contract terms by the complainant. The insurance co. has also failed to establish that theft of the transformer coil was not covered under the insurance policy in question. As such the repudiation of the complainant’s claim by the insurance co. is held to be an act of negligence and deficiency in services towards the complainant. We, therefore, hold the insurance co. liable to pay repair bill of the transformer in question besides other reliefs.

9 Under the facts and circumstances of the case, the opposite party No.1 The Divisional Manager, The New India Insurance Co. Ltd. BOkaro Divisional Office-540400, C/27, City Centre, Sector-IV, Bokaro Steel City is directed to pay Rs. 161215/- (Rupees one lac sixty one thousand two hundred fifteen) only to the complainant within 30 days from the date of this order. The above opposite party is also directed to pay compensation of Rs. 2000/- (Rupees two thousand) only to the complainant within 30 days from the date of this order.

Smt. Uma Bhagati W/O late Shri Rajinder Singh,

R/O Village & P.O. Yulla, Tehsil Nichar,

District Kinnaur, H.P.



… Complainant.

Versus



1. The New India Assurance Company Ltd.

Through its Divisional Manager,

Bhagra Niwas, The Mall, Shimla.



2. The Executive Engineer,

HP PWD (B&R) Division,

Karchham at Sholding,

District Kinnaur, H.P.





…Opposite Parties




O R D E R:

Sureshwar Thakur (District Judge) President:- This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant aver that her husband Rajinder Singh, was working as daily waged beldar with the OP No.2, who met with an accident, on, 17.06.2002 and sustained grievous injury, as a result of which, he died on 25.06.2002. She further avers that the deceased was insured by the OP No.2, with the OP No.1, for an amount of Rs.2.00 lacs and premium was being deducted from his salary by the OP No.2. The complainant further proceeded to aver that after the death of her husband, a claim was lodged with the OPs, who instead of settling the claim, repudiated the same without any justifiable cause. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP No.1-Company, in its written version, to the complaint, contended that since the requisite documents were not furnished to it, it was not in a position to process the claim file. It is further contended that the name of the father of the deceased was not clear from the documents sent by the OP No.2, and as per the certificate, issued by Tehsildar/Executive Magistrate, the father’s name was shown as “Ram Saran”, hence the identity of the person was, who died, was not clear, hence the claim was rightly closed as no claim. The OP No.2, in its separate reply, contended that the OP No.1 was duly intimated about the death of Rajinder Singh and all the requisite documents were sent to it, for settlement of the insurance claim. Hence, it is contended that there was no deficiency in service on their part.

3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their rival contentions.

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

5. The husband of the complainant died during the course of his employment with the OP No.2. It was during the currency of the insurance policy, purchased by the OP No.2, in favour of the deceased that, he, met his end. The OP No.1-Company has repudiated the claim of the complainant merely, for, non-furnishing by the complainant of the identity of the deceased from Tehsildar/Executive Magistrate, to, the effect that the deceased Rajinder Singh son of Shri Inder Sighh, as, reflected in some places, is, the same person, as, reflected, as Rajinder Singh son of Shri Ram Saran, in the legal heir certificate.

6. The complainant has sought to repudiate the objection as taken by the OP-Company in repudiating her claim, on, the strength of the affidavit sworn by the Pradhan of the Gram Panchayat, to, which the deceased belonged whose recital unequivocally proves the fact, that, Shri Rajinder Singh has been recorded in the Panchayat register and in the revenue record, as, son of Ram Saran “Inder” and hence, Rajinder Singh son of Ram Saran “Inder” relate to the identity of the one who met his end, on, 25.06.2002. The contents of the said affidavit have been corroborated by Annexure C-B wherein the identity of deceased Rajinder Singh has been reflected as Rajinder Singh S/O Ram Saran “Inder”. The OP-Company has not afforded any evidence in rebuttal so as to enable us, to, construe that where-so-ever the identity of the deceased, is, disclosed as Rajinder Singh S/O Ram Saran, or as, Rajinder Singh S/O Inder, such distinct reflections, do not relate, to, the identity of the deceased.

7. Moreover, in the light of Annexure of Annexure C-4 which is the copy of the award passed by the Commissioner under the Workmen’s Compensation Act, in proceedings laid before him by the complainant for claiming compensation on the demise of her deceased husband during the course of his employment with the OP No.2, then, when, in the opening paragraph thereof, the name of the deceased, is, referred as Shri Rajinder Singh S/O Shri Ram Saran “Inder”, hence, the said reflection of the identity of the deceased, in, the award made by the Commissioner, under the Workmen’s Compensation Act qua the identity of the deceased, is, to be construed to be conclusive.

8. Even if, the claimant, who had laid a claim before the Commissioner, under the Workmen’s Compensation Act, on account of demise of the deceased husband during the course of his employment with the OP No.2, yet, the fact that she had been afforded compensation under Annexure C-4, the, effect of an award having been made in her favour in those proceedings would not estop her or bar her from agitating the claim before this Forum, as, in, those proceedings the insurer was not made a party.

8. Since, it is not in dispute that the OP No.2 had insured the life of the deceased with the OP No.1, for an amount of Rs.2,00,000/-, and since, the repudiation of the claim of the complainant by the OP No.1-Company, was illegal and without any cogent material, hence, the OP No.1-Company cannot exculpate its liability to indemnify the legal heirs of the deceased for the insured sum of Rs.2,00,000/-.

9. In the light of the above discussion, the complaint is allowed in the following terms:-

i) That the OP No.1-Company shall indemnify the complainant to the extent of Rs.2,00,000/-;



ii) That the aforesaid amount, shall carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 22.05.2008, till making entire payment of the awarded amount;



iii) That the OP No.1-Company, shall also pay litigation cost of Rs.3500/- to the complainant;



v) That the OPNo.1-Company shall comply with this order, within a period of forty five days, after the date of receipt of copy of this order;



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

Gautam Singh Negi S/O Shri Ajay Kumar Negi,

C/O Highway Fuel Services Passalwala, P.O. Dhundhan, Tehsil Arki, District Solan, H.P.



… Complainant.

Versus





1. The New India Assurance Company Ltd.,

SCO 36-37, Sector 17-A Chandigarh UT

Through its Regional Manager.





2. The New India Assurance Company Ltd.,

SDA Complex, Kasumpti, Shimla, H.P.

Through its Divisional Manager,



3. The New India Assurance Company Ltd.,

Branch Office, Main Market, Bilaspur,

District Bialspur, H.P.

Through its Branch Manager,





…Opposite Parties





O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. It is averred that the complainant is owner of vehicle Tanker bearing registration No.HP-11B-0412, which was got insured, by him, with the OPs-Company vide insurance policy bearing No. 352404/31/05/00381, effective from 23.04.2005 to 22.04.2006, for Rs.8,83,500. He further proceeded to aver that on the intervening night of 25th/26th March, 2006, the aforesaid vehicle met with an accident causing total loss to it. It is further averred that the factum of accident was brought to the notice of the OPs-Company, and hence, after completion of all the codal formalities, the insurance claim came to be lodged with the OP-Company, who in turn, illegally and arbitrarily, dilly-dallied its settlement. Hence, it is averred that there is apparent deficiency in service on the part of the OPs-company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant-concern.

2. The OPs-Company in, its, written version to the complaint, raised preliminary objections regarding maintainability of the complaint, inasmuch, as, lack of cause of action, estoppel etc. On merits, it is contended that the driver who was driving the afflicted vehicle at the time of the accident, was not having a valid and effective driving licence, as, the licence bearing No.BDL/165/88 was not issued in the name of Shri Subhash Chand, rather it was in the name of one Shri Jai Kishan Sharma, which was valid for motorcycle/Scooter only, hence there being violation of the terms and conditions of the insurance policy, the OP-Company was well within its right to repudiate the claim of the complainant. Hence, it is denied that there is any deficiency in service on the part of the OPs-Company.

3. Thereafter, the parties led evidence in the shape of affidavit/documents in support of their respective rival contentions.

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

5. The claim of the complainant, had, come to be repudiated by the OP-Company on the strength of the driver of the vehicle which met with an accident not possessing at the relevant a valid and effective driving licence to drive the same. The OP-Company, in, cementing their contention, has, relied upon Annexure R-13, which is the report of the Motor Licensing Authority, from whom an elicitation, was, sought by the Loss Assessor appointed by the OP-Company qua the fact whether the driving licence as placed on record by the complainant, for, getting his claim indemnified by the OP-Company, whose, perusal reflects that the driving licence as placed on record by the driver who was driving the vehicle at the relevant time had, not, been issued in his name, rather, had been issued in the name of Shri Chaman Lal. Annexure R-13, clinches the fact of the driver who was driving the vehicle at the relevant time when it met with an accident, being, hence, not possessed of a valid and effective driving licence to drive the same. Obviously, breach of the terms and conditions of the insurance cover was occasioned.

6. Moreover, neither the complainant has pleaded nor proof has come forth that, at, the time of the complainant having engaged services of the driver to drive the vehicle, he, had in adherence to the norms of reasonable standards due care and caution expected of a man of ordinary prudence, had, examined the driving licence of the driver engaged by him to drive the vehicle. Hence, for lack of above pleadings and as a corollary for lack of substantiation thereof, it is, also not, open to the complainant to assert that he had, in adherence to the rule of due care and caution while employing the driver to drive the vehicle at the relevant time had done so, only after examining his driving licence, in which, eventuality, of, an averment and substantiation existing thereof it was then open for the complainant to insist that at that stage, the driving licence so examined was valid and it being subsequently found to be unauthentic, the OP-Company was obliged to indemnify him.

7. Accordingly, there is, no, merit in this complaint, which is liable to be dismissed, hence, it is, ordered accordingly. Their, shall be no order as to costs. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Sunil Sahni alias Sunny S/O Shri Shankar Lal,

Sole Proprietor of M/S K.S. & Company near

Sood Transport Saproon, Tehsil and District Solan,

H.P. Resident of Sadit Manzil below Central State Library,

The Mall Solan, Tehsil and District Solan, H.P.



… Complainant.

Versus





1. The New India Assurance Company Ltd.,

having its Branch Office at Bhagra Niwas, The Mall Shimla, Tehsil and District Shimla, H.P.

Through its Branch Manager.





2. State of Himachal Pradesh,

through Secretary Home, H.P.

Secretariat Shimla, H.P.



3. Superintendent of Police Solan,

District Solan, H.P.



4. Station House Officer, Police Station, Solan.



…Opposite Parties

O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant, being the sole proprietor of M/S K.S. & Company, against the OP-Company, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. It is averred that the complainant is running the business of various kinds, i.e. sale of mobile phones, recharge coupons, daily need and karyana, which was got insured with the OP No.1-Company vide insurance policy bearing No. 341401/4834/1133, effective from 06.10.2006 to 05.10.2007.


He further proceeded to aver that on the morning of 30.12.2006, at about, 9 AM, when he went to open his shop, he found broken the locks of the shop and also, found burglary/theft of various articles, cash etc. from the shop, hence, a theft has taken place in the business premises, causing total loss of Rs.79,500/-. It is further averred that the factum of theft was brought to the knowledge of the OP-Company, as, also, to the Police upon which Rapat No.12 on 30.12.2006, was registered. Thereafter, after completion of all the codal formalities, the insurance claim came to be lodged with the OP No.1-Company, who in turn, illegally and arbitrarily, closed the claim of the complainant, vide its letter dated 23.08.2007. Hence, it is averred that there is apparent deficiency in service on the part of the OPs-company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant-concern.

2. The OP No.1-Company in, its, written version to the complaint, raised preliminary objections regarding maintainability of the complaint, estoppel and complaint being false and vexatious. On merits, it is contended that after receipt of the of information regarding loss, Surveyor & Loss Assessor was appointed to verify, investigate and assess the claim, hence complainant was asked to submit the documents, who despite repeated requests, failed to submit the requisite documents and as, such, vide letter dated 23.08.2007, the claim was closed as no claim. It is denied that the complainant is entitled to claim amount of Rs.79,500/-, rather the insurance cover was taken only for the stock of mobile phones and recharge coupons, the value of which as per their purchase rate was Rs.58,429/-. Hence, it is denied that there is any deficiency in service on the part of the OPs-Company.

3. Thereafter, the parties led evidence in the shape of affidavit/documents in support of their respective rival contentions.

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

5. The OP-Company, has, repudiated the claim of the complainant, on the singular plea, of the complainant having not submitted before it, an FIR lodged with the concerned Police Station, reciting the fact, of, the theft of articles qua whose, theft, he, seeks indemnification from the OP-Company. The mere submission by the complainant of daily diary report has been contended by the OP-Company, to be not fulfilling the requirement of the insurance policy, which, rather necessitated, production by the complainant before it of the FIR lodged qua the incident of theft which occurred in his premises, hence, justifying the repudiation of the claim of the complainant by it.

6. The counsel for the complainant contends that the complainant having taken the necessary steps of intimating to the police, the, occurrence of theft in his premises, which, information was entered in the daily diary register, by, the competent officer of the concerned Police Station, he, as such, had by his intimating the occurrence of theft in his premises, to the concerned Police Station, hence, had provided the necessary information to the concerned Police Station qua the commission of an offence in his premises and in the officer Incharge of the Police Station, not, having entered the daily diary report, in, the register maintained in the Police Station for recording of FIRs, had, as such, in, not doing so, had committed a lapse in the performance of his duty, and for such omission, on, the part of the Officer of the concerned Police Station, his claim ought not to be ousted, on, the mere plea of his inability, to, submit, to, the OP-Company, the FIR lodged with the concerned Police Station.


In other words, the counsel, for, the complainant contends that the daily diary report itself ought to be construed to be an information or intimation to the Police by the complainant qua the theft, as had occurred, in his premises and no insistence ought to be made by the OP-Company for submitting to them the FIR lodged in relation to the commission of offence, in his premises which was not within the means of the complainant, rather, the officer of the concerned Police Station recorded the daily diary was obliged to do so, for, whose lapse, the complainant ought not to suffer or be prejudiced.

7. The fact of daily diary report having been prepared in the concerned Police Station reflecting the commission of an offence in the premises of the complainant is not disputed. It is also not disputed that the OP-Company was obliged to indemnify the complainant in the eventuality of the theft having occurred in his premises, in, proof whereof, the, production by the complainant of a FIR lodged by him in the concerned Police Station was insisted upon.

8. Considering the arguments as addressed before us by the learned counsel for the complainant, we, see merit in his contention, that, the officer of the concerned Police Station who had in his wisdom thought it fit to record the incident of theft, as, had occurred in the premises of the complainant in the daily diary register, yet, when the complainant had, as such, evidently provided intimation or information to the Police concerning the commission of an offence in his premises, it is an enigma as, to, what consideration prevailed upon the officer while recording the intimation qua the commission of an offence in the premises by the complainant as provided to him by the complainant only, in, the daily diary register and not to proceed to register a case, on, the basis of the information provided to him by the complainant, on, receipt of the information he, is, obliged under law to register a case.


His inability to do so, cannot, hence, preclude the complainant from asserting the claim against the OP-Company for indemnifying to him the loss as was caused in his premises owing to theft and which theft was reported to the concerned Police Station and reproduced in the daily diary register merely, on, the plea that, no, FIR was lodged qua the theft which occurred in his premises, when, for reasons aforesaid the act of registering a case on the strength of the intimation/information provided, by, the complainant to the officer of the concerned Police Station, was, not within the domain or jurisdiction of the complainant, rather was the result of a lapse, on the part of the officer Incharge of the concerned Police Station. Moreover, proof of theft is also afforded by the recording of the incident in the daily diary register.

9. Therefore, in, the OP-Company having repudiated the claim of the complainant for non-submission of FIR is, in our considered view untenable and is to be discountenanced. On this point we are supported by the case law as laid down in 2007(1) Parkash Singh Badal and another vs. State of Punjab and others, Supreme Court of India, decided on 06.12.2006.

10. Now, comes the amount of indemnification, payable to the complainant by the OP-Company. Since, the complainant has put forth the claim to the extent of Rs.79,500/- on account of loss. On the other hand, the OP-Company has got the loss assessed through loss assessor, who vide surveyor report, which exist on record and bears Annexure R-5, assessed the loss, at Rs.58,429/- and the report of the surveyor having remained unrebutted and un-controverted and the surveyor being an expert in his field hence, being an impartisan person, his report, is liable to be accepted, and cannot be discarded, to assess the loss.

11. In the light of the above, the complaint is allowed and OP-Company is hereby directed to indemnify the complainant, in accordance with the rules, to the extent of Rs.58,429/- along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 30.10.2007, till making full payment of the amount aforesaid. In addition to this, the OP-Company is also held liable to pay to the complainant, the litigation cost, which is quantified at Rs.2000/-. These payments shall be made to the complainant, by the OP-Company, within a period of forty five days, after the date of receipt of copy of this order. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Shri Ram Singh S/O Shri Badal Singh,

R/O Chandra Company, P.O. Bakash Court,

Tehsil Jalpairgudi, West Bengal, Presently

R/O Cemetery, Kanlog, Shimla Bye-pass Road,

Shimla, H.P.



… Complainant.

Versus



1. The New India Assurance Company Ltd.

IIIrd Floor, Block No.7,

SDA Complex, Kasumpti, Shimla-9



2. The Executive Engineer, HP PWD, US Club, Shimla.



…Opposite Parties



O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he was working as daily wage beldar with the HP PWD, Sub Divisor No.1, Shimla-3, and while on duty, he met with an accident on, 29.05.2003, as a result of which, he suffered 60% impairment in relation to his limb. He further avers that thereafter, the insurance claim was lodged with the OP-Company, who failed to settle the claim on one pretext or the other. Hence, it is asserted that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint contended that the since the policy covers the risk of permanent disablement of 50% and above, in relation to whole body. The complainant has sustained 60% disablement of temporary nature in relation to both limbs only and not whole body, hence, the claim is beyond the purview and scope of the policy and not payable to him. It is also contended that the disability certificate furnished by the complainant there is recital of handicap of 60% of the limb of complainant and re-assessment is recommended after 5 years, hence, the matter was got investigated from PGI, Chandigarh, who opined that the disability is temporary in nature and is only to limbs and not whole body. Hence, it is contended that there was no deficiency in service on their part.

3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their rival contentions.

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

5. The complainant is the beneficiary of insurance policy purchased by OP No.2, from OP No.1. During the course of the employment of the complainant with the OP No.2, he, suffered injuries which entailed upon him disability to the extent as reflected in Annexure C-1 and in Annexure R-X. The complainant, on, urging the OP No.1, for settling his claim, did not meet with success. The insurer in its reply, has, detailed in it reasons for its repudiating the claim of the complainant the primary reason being of the disability certificate not detailing whether the disability entailed upon the complainant, is, permanent. Even if, it is detailed in the disability certificate that the disability, is, 60% of his limbs, yet, the fact of reassessment of disability having been recommended after five years, therefore, the said part considered along with the fact of disability certificate, not, detailing that the disability, to, the extent of 60%, as, entailed upon the complainant, is, permanent.


Hence, in the light of the insurance cover mandating that the disability has to be not less than 50% and that, too, it has to be reflected in the disability certificate that it is of a permanent nature, as such, with the disability as reflected in the disability certificate issued by the concerned Board, which assessed the disability of the complainant and is appended as Annexure C-1, not, mentioning the disability to be of a permanent in nature, therefore, the claim of the complainant does not meet the parameters of or the requirement of the policy, as such, necessitating its repudiation. In fortifying the above contention, reliance has also been placed, on, Annexure R-2 wherein it has been explicitly explained that the disability, is, of a temporary in nature and is required to be reassessed after rive years.

6. However, the complainant has placed on record Annexure R-X, which is, a, disability certificate issued by a Competent Disability Board, which has been issued on 20.02.2007, hence, at, a time subsequent to the issuance of Annexure C-1. In it their, is, a, reference of the complainant having suffered 60% disability. However, though, there, is, an omission in it of the disability being permanent, in nature, yet, with the Disability Board, not, recommending the reassessment of the disability, an, inference can be drawn that the disability, as, reflected in Annexure R-X by the Disability Board, at a time subsequent to the issuance of Annexure C-1, was, a, disability of a, permanent nature entailed upon the complainant qua those parts of his limbs on which he had suffered injury during the course of his employment with the OP No.2.

7. The insurer has not adduced any evidence to demonstrate that the disability to the extent of 60% detailed in Annexure R-x is to be inferred to be a disability of a temporary in nature. Even otherwise for reasons aforesaid, the, disability as revealed in Annexure R-X, is, construed to be of a, permanent nature of those parts of the body on which he suffered injury during the course of his employment with the OP No.2.

8. In the light of the above discussion, we allow this complaint and direct the OP No.1-Company to indemnify the complainant as per policy Annexure R-1, and pay the amount, payable as per the policy Annexure R-1, to the complainant, along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 09.05.2006, till making entire payment of the amount. The litigation cost is quantified at Rs.1500/- payable by the OP No.1-Company to the complainant. This order shall be complied with, by the OP No.1-Company, within a period of forty five days after the date of receipt of copy of this order. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

M/s Vidya Sagar & Sons, Sole Proprietorship Concern

through its Sole Proprietor Sh. Vidya Sagar S/o late

Sh. Pal Sukh R/o Village & P.O Powari, Rekong Peo,

District Kinnaur, H.P.-172101.



… Complainant.

Versus



1. The New India Assurance Company Ltd.

Through its Divisional Manager, Divisional office, Block No. SDA Complex, Kasumpti, Shimla.



2. The New India Assurance Company Ltd.

Through its Branch Manager, Branch Office,

Bhagra Niwas, The Mall Shimla-1,H.P.



3. Punjab National Bank, Peo Branch,

Through its Branch Manager, Reckong Peo,

Tehsil Kalpa, District Kinnaur, H.P.





…Opposite Parties


O R D E R:

Sureshwar Thakur (District Judge) President:- This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is a businessman and shopkeeper and was running a shop in the name and style of M/S Vidya Sagar & Sons at Village Powari, District Kinnaur, H.P. to earn his livelihood, which was insured by him with the OPs No.1 & 2, for a sum of Rs.5.00 lacs, effective from 09.06.2005 to 08.06.2006. The complainant further avers that on, 26.06.2005, due to sudden flash floods in the river Satluj, the shop of the complainant got washed away.


The factum of its having washed away, was, brought to the notice of the OP-Company, as also, to the Police, upon which Rapat No.13, dated 28.06.2005 came to be lodged with the Police Station, Reckong Peo. The stock was also inspected by the banker, i.e. OP No.3, and stock worth Rs.4,28,440.50 was found lying in the premises. Thereafter, the insurance claim was lodged with the OPs No.1 & 2, who instead of indemnifying the complainant to the entire loss, only paid Rs.38,197/- which was received by him under protest. Hence, it is averred that there is apparent deficiency in service on the part of the OPs-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OPs No.1 & 2-Company, in its written version, to the complaint, contended that the insured was keeping two portions of the building, out of which one portion he was using as godown and the other as shop and only the shop portion was insured. The insured provided list of damaged stocks for Rs.4,27,848/- and he showed his inability to bifurcate the stocks lying in the shop and in the godown, hence the surveyor considered 50% of the total stocks as stored in shop and 50% in godown. Since, the complainant was not income tax assessee and in view of the aspects of the matter, the expert, made assessment of Rs.48,197/- and after deducting Rs.10,000/- excess clause, the final assessment of loss was Rs.38,197/-, which was sent to him vide cheque dated 17.10.2006. As such, the OPs-Company is not liable to pay over and above the amount, already paid to the complainant. Hence, it is contended that there was no deficiency in service on their part.

3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their rival contentions.

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

5. The commercial establishment of the complainant was washed away by flash floods, which occurred on 26.06.2005. The OPs-Company seek to repudiate, the, claim of the complainant on the ground that since their was, a, prior warning of the imminence of floods, which, prior warning of the imminence of the floods, to, the complainant, which in case had been adhered, to, by the complainant, the, loss would have been obviated. However, no proof has been adduced by the OPs-Company before us, so as, to, enable us, to, countenance the said contention. Obviously, also, the OPs-Company does not deny the fact of the commercial premises of the complainant having been insured with it, which was washed away, in, the flood, which occurred on 26.06.2005.

6. The OPs-Company, have under assessed the loss to the complainant on the strength of the report of the Loss Assessor whose report has been appended and bears Annexure R-4. The complainant, however, contests, the, credibility of Annexure R-4 on the strength of Annexure C-3, which, is, a stock statement prepared by the banker who had afforded the facility of cash credit limit to the complainant.


While coming to test the credibility of the repudiation, as sought to be imputed, to, Annexure R-4 by the complainant, an, advertence, is, required to be made to the report of the Loss Assessor wherein, though, the Loss Assessor had accepted the fact of the complainant having provided bills of stock kept, in, his premises comprising the period 01.04.2004 to 31.03.2005, the, total whereof has been reflected to be a Rs.437003.00. Besides, also, there, is, a reflection of the insured having made purchases valued at Rs.385569.00 from 01.04.2005, till, the date of the incident. The Loss Assessor without assigning good and tenable reasons, for, ousting reliance, on, the aforesaid bills, nor, also, while having construed them to be unauthentic, merely, has on, a conjectural assumption construed them to be on the higher side, on, the purported reason, of, his not being an income tax assessee, hence, had come to reduce it to the extent of, one, month purchase alone computed at Rs.128523.00 and recommended a, deduction of 25% on account of assumption dead stocks.

7. Further more, he has also proceeded to further reduce 50% from the aforesaid figure, on, the plea that since half of the stock was lying in the shop, hence, the stock in trade kept in the shop being only liable for indemnification, hence, had, on, a, conjectural assumption excluded half of the stock purportedly kept in the godown for being liable for indemnification. However, no cogent and satisfactory reason has been furnished by the Loss Assessor, to, secure his conclusion, that, 50% of the stock was kept by the complainant in the shop portion and 50% was kept in the godown. Hence, it was not permissible for the Loss Assessor to asses, even assuming, that, there, is, some force in his assessment, to, exclude on, a, conjectural assumption of some portion of the stock in trade lying in the godown, for, its value being not, as such, indemnify-able to the complainant, especially when, no, potent proof existed of a part of the stock in trade having been kept by the complainant in the godown.

8. Even otherwise, faced with the existence of Annexure C-3, which, is, a stock statement prepared by the banker, qua, the stock in trade lying in the commercial premises of the complainant and which does not detail, the, fact that the total of the stock of the value reflected in it, was, not, found, at, the time of its inspection, in, the shop of the complainant, hence, for non-reflection in Annexure C-3 of the stock in trade as reflected in it having been found in the godown of the complainant, the, said omission, in, Annexure C-3, also, dispels that part of the finding given by the Loss Assessor, that, 50% of the stock was kept in the godown, hence, its value was, not, open for indemnification.

9. Further more, with Annexure C-3 having been prepared qua the stock in trade by the banker of the complainant and its having come to be prepared, on, 20.06.2005, whereas, the incident took place, on, 26.06.2006, hence, utmost reverence has to be given to it given the fact of proximity of its preparation with the incident, as also, when it, has not been proved to be fictitious. As a sequitor, it, has a countervailing effect upon the report, hence, prepared by the Loss Assessor for the reason, also, that with bankers assessment while not suffering from any of the inherent defects, which, for reasons aforesaid imbue the report of the Loss Assessor, besides, it, also, being the assessment by an impartisan institution, whereas, Annexure R-4 having been prepared by the Loss Assessor of the OPs-Company, hence, being ingrained with a bias, as such, divesting, it of its value. Therefore, the reputation to Annexure R-4, has, immense weight and is to be countenanced.

10. Hence, from the aforesaid discussion, it stands substantiated on record that the OPs-Company has under assessed the loss to the complainant on the strength of the report of the Loss Assessor Annexure R-4, and paid a sum of Rs.38,197/- to him, hence, in under assessing the loss to the complainant, they have certainly committed deficiency in service, as also, indulged in an unfair trade practice. Hence, the OPs-Company, cannot exculpate its liability to indemnify the complainant to the extent of Rs.4,28,440/- on the strength of the stock statement prepared by the banker of the complainant. As the OPs-Company, has earlier indemnified the complainant to the extent of Rs.38,197/- which amount has been received by him under protest, as is evident, from the copy of legal notice dated 10.11.2006, Annexure C-6, issued by his counsel to the Branch Manager, of the OPs-Company. As such, the OPs-Company, is, now, legally bound to indemnify the complainant to the extent of Rs.3,90,243/- (Rs.4,28,444/- minus Rs.38,197/-) being the amount of the loss suffered by the complainant, on account of, his having washed away the insured commercial establishment by floods, which occurred on, 20.06.2005, during the subsistence of the insurance policy.

11. In the light of the above discussion, the complaint is allowed in the following terms:-

i) That the OPs-Company shall indemnify the complainant to the extent of Rs.3,90,243/-(Rs.4,28,444/- minus Rs.38,197/-) in accordance with rules;



ii) That the aforesaid amount, shall carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 24.05.2007, till making entire payment of the awarded amount;



iii) That the OPs-Company, shall also pay litigation cost of Rs.3500/- to the complainant;



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



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

1. Shri Kuldeep Sharma S/O Shri Sunder Ram Sharma,

R/O Dhingra Estate, Boileauganj, Shimla.



2. M/S Reliable Finance, ACC Chowk Barmana,

Through Shri Kuldeep Sharma.

… Complainant.

Versus



1. The New India Assurance Company

Through its Divisional Manager, SDA Complex,

Kasumpti, Shimla.



2. The New India Assurance Company

Through its Branch Manager,

Main Market Shimla.





…Opposite Parties


O R D E R:

Sureshwar Thakur (District Judge) President:- This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he was owner of Cr Ford Ikon, bearing registration No.HP-24B-3432, which was insured with the OP No.2-Company, for a sum of Rs.4,81,600/- for a period of one year, commencing from 01.06.2006 to 31.05.2007. He further avers that on the intervening night of 7th/8th June, 2006, when the car was parked at M.C. Parking, Sanjauli, it was stolen from the said parking. The factum of its having stolen was brought to the notice of the OP-Company, as also, to the Police, upon which FIR No.21/2006, on 08.06.2006, was lodged with the Police Station, Dhalli. Thereafter, the insurance claim came to be lodged by him, with the OPs-company, for indemnification of the insured amount, but the OP-company instead of settling it, dilly-dallied the amount of indemnification to him, on one pretext or the other. Hence, it is averred that there is apparent deficiency in service on the part of the OPs-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint raised preliminary objection regarding maintainability of the complaint, inasmuch, as, the complainant has no locus standi to file the present complaint. On merits, it is contended that the vehicle was insured by M/S Reliable Finance and it was financed by ICICI Bank Ltd., and the amount, if any, is to be given to the financier and the complainant has no locus standi to receive the amount. It is also, contended that the final action taken report from concerned CJM was not sent for processing the claim. Hence, it is contended that there was no deficiency in service on their part.

3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their rival contentions.

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

5. The complainant has been authorized by the insured to prosecute the complaint before this Forum as is evident from, a, perusal of Annexure C-9. The OPs-Company during the pendency of the complaint before this Forum had instituted, an, application with an elucidation in it, that, since the vehicle alleged to have been stolen, has been, recovered and, is, lying in Police Station, Dhalli, hence, the OPs-Company, is, now not liable to indemnify the complainant. The application had come to be supported by an affidavit sworn by the authorized functionary of the OPs-Company, in which it is detailed that since the chassis number of the vehicle lying with the Police Station, Dhalli, is, analogous to the chassis number of the vehicle alleged to have been stolen, therefore, the insured should, proceed, to collect the vehicle from the concerned Police Station.

6. The complainant filed reply to the said application, wherein, it was contended that, the, similarity of chassis number of the vehicle, as, has been, asserted, by, the OPs-Company of the vehicle stolen, recovered now, and lying with Police Station, Dhalli, is not a truthful assertion, therefore, a, contention has been leveled in it, that the OPs-Company, are, hence obliged to indemnify the complainant of the sum insured.

7. The complainant, besides, depending upon the affidavit sworn by the authorized functionary, has,also, depended upon the photographs of the vehicle initially stolen and subsequently recovered and lying with Police Station, Dhalli. The photographs of the chassis, of, the vehicle lying with Police Station, Dhalli after, its, recovery having been effected by the police, have also been placed on record.


A perusal of the photographic print of the chassis number of the vehicle, now, lying with Police Station, Dhalli after its recovery, underscores, the fact that though the chassis number, is, analogous to the chassis number of the vehicle stolen, however, the certificate of registration of the vehicle which is on record while disclosing the chassis number of the vehicle to be MAJAXXMRTA5MA7479ASIS, yet, in the photographic print of the chassis number of the vehicle as recovered and lying with the Police Station, Dhalli, does not contain the letters ASIS occurring after 7479. Therefore, the contention of the OPs-Company, that, the chassis number of the vehicle initially stolen and subsequently recovered is the same, is, hence falsified. The further sequitor, is, that the vehicle as alleged to have been recovered and lying with Police Station, Dhalli, is, not the same which has been alleged to have stolen.


Therefore, the OPs-Company, is, hence, obliged to indemnify the complainant who is suing for himself as well, as, for the financier in whose name the insurance stands, as, is, evident from the reading of Annexure C-1, copy of insurance policy.

8. Since, the vehicle was insured for an amount of Rs.4,81,600/- effective from 01.06.2006 to 31.05.2007, which was stolen on the intervening night of 7th /8th June, 2006, i.e. during the currency of the insurance policy, and that too within seven days of effecting the insurance policy, as such, the OPs-Company, is, liable to indemnify the complainants to the insured sum of Rs.4,81,600/- along with interest and litigation costs.

9. Consequently, the complaint is allowed in the following terms:-

i) That the OPs-Company shall indemnify the complainants to the extent of insured sum of Rs.4,81,600/- on total loss basis.



ii) That the aforesaid amount, shall carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 20.06.207, till making entire payment of the awarded amount;



iii) That the complainants shall surrender the RC and key of the vehicle to the OPs-Company, on receipt of the amount, aforesaid;



iv) That the litigation cost is quantified at Rs.3500/- payable by the OPs-Company to the complainant;



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



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