Makhan Lal S/o Om Parkash R/o B-18/174, Ibrahim Basti, Nawanshahr Tehsil and Distt. Nawanshahr.

…Complainant.

Versus

The New India Assurance Company Ltd. Through its Branch Manager, above UCO Bank, Nawanshahr.

…Respondents



Makhan Lal (hereinafter called as complainant), has filed this complaint against the The New India Assurance Company Ltd. Through its Branch Manager, above UCO Bank, Nawanshahr (hereinafter called as Op respectively) for issuance of a direction to the Op to pay the insurance claim of Rs.1 Lac along with 35,000/- as compensation and Rs.7,500/- as litigation expenses.

2. The brief admitted facts of this complaint are that the complainant is running the business of sound shop under the name and style of “Sahib Sound Servie” at Nawanshahr. He had purchased the sound equipment with the loan obtained from the Punjab National Bank and got it insured from the Op on 17/10/2007. The insurance was valid till 16/10/2008. On the night of 08/09-01-2008 a theft was alleged to have taken place in the shop of the complainant regarding which Fir No.7 dated 09/01/2009 U/s 457/380 IPC had been got registered by Sumit Kumar neighbor of the complainant. An intimation was given by the complainant to the OP but no action was taken by it. Rather, the claim of the complainant had been repudiated by Op vide letter dated 13/02/2009. The Op was stated to be deficient in service. Hence this complainant.

3. In the written version filed by the Op, the insurance obtained by the complainant, as well as giving of intimation of the alleged theft was not disputed. It was contended that after information of the alleged theft, the Op had deputed an independent government approved surveyor i.e. Arun Kumar & Company who visited the shop of the complainant and submitted a detailed report dated 04/02/2008, according to which the net loss suffered by the complainant was given as Rs.87,840/-. After applying the average clause as per terms and conditions of the insurance policy, the sum payable to the complainant was assessed as Rs.70,272/-. The complainant was alleged to be not entitled to this amount also, as there was no evidence to prove forcibly entry to the shop of the complainant.


The complainant according to Op was covered under the Shopkeepers Insurance Policy and Section 2 of the Policy clearly states that the policy Covered “Burglary and House Breaking” loss or damage to property by theft involving entry into or the exit from the premises forcible and violence or thereof, to the insured or any employee of the insured or member or the insured family. In this case intimation was given by the complainant at late stage and the visit of the investigator did not show any evidence of forcible entry into the shop of the complainant. Therefore, the claim of the complainant was rightly repudiated. A prayer for dismissal of the complaint was accordingly made.

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

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

6. From the written version filed by the Ops, it is abundantly clear that the fact about the theft in the shop of the complainant, as well as the loss of his sound equipment has not been disputed. The only contention raised by the Op is that forcible entry having not been established, the complainant is not entitled to the claim, as per terms and conditions of the policy. We find no substance in the contention of the Op because it is not disputed that theft had taken place in the shop of the complainant on the night intervening 8/9-01-2008. The investigator appointed by the Op had concluded that theft had taken place on the night of 08/09-01-2008. It is also in the report lodged by the complainant with the Op that the lock of his shop found broken. The in gradients of theft given in Section 379 of the Indian Penal Code are as under:-

(i) That the subject matter of theft is movable property.

(ii) That it was in possession of any person.

(iii) That the accused moved it.

(iv) That he did so without the consent of the person in possession intending to take it out of his possession.

(v) That he did so dishonestly.

7. It is not the case of the Op that the goods from the shop had been removed with consent of the complainant. Since the theft had taken place in the night, it was unjust on the part of the Op or the concerned officials of the Op to opine that forcibly entry in the shop was not established on the basis of papers available on the claim file. Thus, the repudiation of the claim of the complainant amounts to deficiency in service on the part of the Op towards the complainant.

8. As a consequence of the foregoing reasons, we are constrained to allow this complaint with a direction to the Op to sanction and disburse the claim of Rs.77,272/- as per report of Anil Kumar and company, copy of which is Ex. R-1.

9. The Op shall also pay a sum of Rs.5,000/- to the complainant towards compensation for mental as well as physical harassment.

10. The compliance of this order shall be made within one month from the receipt of copy of this order.

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

12. File be consigned to the record room.

Puran Devi Jain aged 73 years widow of Sh.Chain Lal Jain C/o Pardeep Traders, Kesar Ganj Mandi, Ludhiana & resident of H.No.3261, Street No.5, Gurdev Nagar, Ludhiana.



…..Complainant.

Versus



1- The New India Assurance Company Limited, above UCO Bank, Banga Road, Nawan Shahar, through its Branch Manager.

2- M/s Alankit Health Care Limited, Alankit House, 2E/21, Jhandewalan Extension, New Delhi, through its Director/Manager.

…..Opposite parties.





O R D E R









1- Complainant in this complaint u/s 12 of the Consumer Protection Act, 1986, alleging deficiency in service on part of opposite party, has sought compensation of Rs.50,000/-, for mental agony and harassment. Case of the complainant is that her son Sh. Sushil Kumar Jain for self and the complainant had been obtaining hospitalization and domiciliary benefit policies since 7 years from opposite party no.1. Such polices were taken continuously without any break. When previous policy w.e.f. 9.4.2005 to 8.4.2006 was near expiration, complainant requested opposite party no.1 for issuance of next policy, who agreed for the same, to continue the policy w.e.f 9.4.2006 to 8.4.2007. Premium amount of Rs.11,386/- by way of cheque dated 8.4.2006 was paid to opposite party no.1 and then several requests were made to supply the policy.


But opposite party simply sent a premium calculation worksheet, insuring complainant for Rs.1,50,000/- + bonus of Rs.50,000/-, mentioning commencement of policy on 9.4.2006 to midnight of 8.4.2007. It also acknowledges receipt of the premium and was promised issuance of cover note shortly. Thereafter, complainant suddenly suffered breathlessness and fever, due to which on 22.1.2006, was admitted in CMC & Hospital, Ludhiana. Was diagnosed having AC Exacerbation of COPD, Eventration of Diaphram, Type-II DM and hypertension. Subsequently, discharged on 26.12.2006. Spent Rs.5 lacs on treatment.


Claim with necessary documents, bills, vouchers was raised with opposite party. But opposite party vide letter dated 8.2.2008, intimated complainant that there was a gap in renewal of the policy and policy commenced from 7.7.2006. Hence, repudiated the same. This repudiation stands assailed to be wrong, null, void and illegal. Because claimed that for renewal of previous policy, cheque dated 8.4.2006 was paid, covering risk from 9.4.2006 to 8.4.2007. There was no gap or break and false plea has been taken by opposite party, which amounts to deficiency in service.

2- Opposite party no.1 contested the complainant, on ground that this Fora has no jurisdiction, there is no deficiency in service on their part. It is averred that immediately on receipt of claim from the complainant, it was duly entertained, registered and referred to M/s Alankit Health Care Limited, who after adopting proper procedure for settlement of the claim, repudiated it vide letter dated 8.2.2008. Because claim of the complainant was not admissible under exclusion clause 4.1 of the policy. The disease for which complainant took treatment, was pre existing when the cover incepted for the first time. So, accused complainant of suppressing material facts. Because her earlier policy had already lapsed. Complainant made requests on 4.7.2006 for renewal of the policy. On request of the complainant, premium calculation worksheet on 6.7.2006 was sent. Thereafter, son of the complainant issued cheque of Rs.11,386/- to employee of opposite party no.1, which was back dated.


The premium due was from 7.7.2006 to 6.7.2007. The cheque was issued on 6.7.2006, but son of the complainant intentionally put date 8.4.2006 on the cheque with ulterior motive, to take unfair and illegal advantage of the date of the cheque. So, for such reasons, allegations of the complainant have been denied that policy was renewed in continuation and on expiry of previous insurance policy. It was a new policy and she suppressed pre-existing disease while purchasing the policy. Repudiation is valid and legal.

3- Opposite party no.2 did not contest the complaint and as such, is being proceeded exparte.

4- Both parties in support of their claims adduced evidence and stood heard through their respective counsels.

5- Sole question which in our view, shall settle the dispute, is whether policy under which claim was lodged by the complainant, was in continuation of her previous policy or it was taken after gap of three months, on expiry of previous policy, so taken to be a fresh one. Second point is whether repudiation of the claim was justified, on ground that complainant suppressed pre-existing disease when purchased the policy.

6- It is established on the record that first hospitalization and domiciliary policy of the complainant commenced on 9.4.2004 to 8.4.2005, as apparent from policy Ex.C1. On expiry of this policy Ex.C1, complainant got it renewed vide policy Ex.C2 valid from 9.4.2005 to 8.4.2006. Then comes the disputed policy Ex.R3 valid from 7.7.2006 to 8.7.2007. Grouse of the complainant against his policy Ex.R3 is that when he on expiry of previous policy Ex.C2 on 8.4.2006, applied for renewal and issuance of fresh policy by paying cheque of Rs.11,386/- dated 8.4.2006(Ex.C3) to opposite party, but they deliberately and intentionally failed to provide policy and subsequently issued policy effective from 7.7.2006, instead of 9.4.2006 to 8.4.2007.

7- It was in such scenario argued on behalf of opposite party that complainant approached in July, 2006, for the policy, but committed fraud by paying premium through cheque dated 8.4.2006. As such, policy was taken in July, commencing from 7.7.2006. Whereas, on behalf of complainant, contrary contended that had applied immediately for renewal of the policy on expiry of earlier policy Ex.C2 on 8.4.2006 and had requested for renewal of the policy w.e.f. 9.4.2006, by paying cheque dated 8.4.2006 Ex.C3.

8- If material brought on the record is looked into, we have no hesitation to agree with averments and contention of the complainant. Because premium calculation worksheet for individual mediclaim Ex.C4, though contains reference date 4.7.2006, but it mentions policy period from 9.4.2006 to midnight 8.4.2007. It provides hint to us that complainant actually had prayed for issuance of policy w.e.f. 9.4.2006. But opposite party delayed the matter. Under this calculation worksheet, total family discount of Rs.1148/- was given against the insurance premium of Rs.11,480/-. Then premium of Rs.11386/- was demanded from the complainant.

9- Now question is qua affect of giving family discount of Rs.1148/- in the calculation sheet Ex.C4 dated 4.7.2006 and mentioning policy period from 9.4.2006 to midnight 8.4.2007.

10- Such like matter came for consideration before the Hon’ble National Commission in Oriental Insurance Company Vs Parkash Devi II(2008) CPJ-267(NC). In that case also, family discount in premium was given. Insurer acknowledged renewal of policy without break having condoned delay. In para no.7 of the judgment, the Hon’ble National Commission observed as under:-

“It is a very clear-cut condition that family discount in premium will be given, provided there is a renewal of insurance policy without break. In this case, family discount in premium has been given because the insurance company acknowledged the fact of renewal of the insurance policy without break, i.e. having condoned the delay. Moreover, similar family discount was also given when the policy was renewed during the previous year but when the policy was taken for the first time, such discount was not given”.



11- So, it is apparent that family discount in premium is given, in case of renewal of policy without break. So, opposite party in the instant case, had renewed the policy without break, when provided family discount to the complainant in that policy. Subsequently, issued policy effective from 7.7.2006 to 6.7.2007(Ex.R3). In fact, this policy Ex.R3 was in continuation of previous policy Ex.C2, which lapsed on 8.4.2006. It ought to have been renewed by opposite party on 9.4.2006, but mentioned to have issued on 7.7.2006. Despite the fact that policy period was mentioned as commencing from 9.4.2006 to 8.4.2007 in Ex.C4 calculation sheet.

12- In these circumstances, we take it proved to the hilt that the policy Ex.R3, under which claim was lodged by the complainant, was in continuation of her previous policy Ex.C2.

13- Repudiation of the claim is based upon letter Ex.C19 of M/s Alankit Health Care Limited, 3rd Party Administrator of the opposite party, on the ground that the policy incepted for the first time and the disease was covered under the exclusion clause 4.1 of the policy. But on face of the letter, repudiation was wrong. Because this policy Ex.R3 had not commenced for the first time. Rather, it was in continuation of previous policy Ex.C2. So, arises no question that disease was pre-existing, so as to attract condition no.4.1 of the policy.

14- Even otherwise, there is no proof that disease, as concluded pre-exiting, was so. Medical record of treatment of the complainant such as Ex.C5 shows that complainant was not suffering since long with the ailment for which, took treatment. From where, opposite party concluded her ailment to be pre- existing, there is no proof on the record.

15- In view of aforesaid aspects, it is apparent that opposite party wrongly repudiated the claim, which on their part, would amount to deficiency in services towards its consumer. Hence, complaint deserves to be allowed.

16- Complainant has placed on the record, invoices Ex.C6 of CMC & Hospital, Ludhiana, for paying Rs.2,52,409/-/- qua treatment. The policy Ex.R3 taken by her was for Rs.1,50,000/- with Rs.52,500/- amount of bonus. Though complainant in complaint, claimed bonus of Rs.50,000/- only.

17- In view of these aspects, complaint allowed and opposite party no.1 ordered to pay Rs.1,50,000/- + Rs.50,000/- bonus to the complainant, alongwith compensation of Rs.5000/-and litigation cost Rs.2000/-, within 45 days of receipt of copy of the order, failing which, shall be liable to the amount with 9% interest p.a. from the date of complaint till payment. Copy of order be provided to the parties free of charge. File be completed and consigned to record room.

Gullapudi Ranga Narayana Rao, s/o.Ramakrishna, age: 40

years, occu: Owner of Toyota Qualis bearing No.AP-20-V-

1358, r/o.Bandarugudem village of Manuguru mandal,

Khammam District.

…Complainant

and



1. The New India Assurance Company Ltd., rep. by its Regional Manager, Regional office, Pvan paradise, Dwaraka naar, Visakhapatnam-530016.



2. The New India Assurance Company Ltd., rep. by its

Senior Branch Manager, I floor, Shukur complex,

R.R.Appa Rao street, Vijayawada-520001.



…Opposite parties.



This C.C. came before us for final hearing on 27-8-2009; in the presence of Sri.P.Madhava Rao, Advocate for complainant and of Sri.B.Gangadhar, Advocate for opposite parties; upon hearing the arguments and upon perusing the material papers on record, and having stood over for consideration till this day, this Forum passed the following order:


O R D ER





1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The brief facts of the complaint are that the complainant is the owner of Toyota Qualis bearing No.AP-20-V-1358 and got insured the said vehicle with opposite party No.1 on 19-4-2004 till 18-4-2005 vide policy No.620702/31/04/00027 and paid necessary premiums. Unfortunately the said vehicle met with an accident on 8-7-2004 at Tippanapalli village of Chandrugonda mandal, Khammam District, vehicle was totally damaged, but the driver and the passengers, who are in the vehicle, were escaped and they are safe, but their vehicle was totally damaged.


Immediately message was sent to the opposite party, intimating the accident, to which the opposite parties deputed their official surveyor, who has taken necessary photograph of the scene of offence and estimated the damage, after that the vehicle was taken to Radha Madhav Automobiles, Vijayawada, where the necessary repairs have been effected and the said automobiles charged an amount of Rs.2,65,446/- towards the charges for repairs and also spare parts. The complainant sent the necessary bills in original to the opposite parties by registered post requesting the opposite parties to pay him the said damages. Even after repeated requests, the request of the complainant was not conceded, hence, the complainant got issued a legal notice dt.7-3-2005 to which the opposite party sent reply notice on 12-4-2005, in which the complainant was asked to receive Rs.1,12,500/- by signing the claim loss voucher and then only they will issue a cheque for the said amount.


But the complainant insisted the opposite parties that he is entitled for Rs.2,65,446/- to which he incurred the expenditure, but the said amount was restricted to Rs.1,12,500/-. Therefore, the complainant refused to receive the said claim voucher, to preserve his right to agitate the same before this forum and declined to sign the claim loss voucher. Hence, the complaint to direct opposite parties to pay an amount of Rs.2,65,446/- with interest at 24% P.A. and Rs.90,000/- towards compensation for mental agony and suffering.

2. The complainant filed affidavit, reiterating the contents of the complaint.

3. On receipt of the notice, the opposite parties No.1 and 2 filed counter. In the counter, it is not disputed regarding the insuring of the vehicle with opposite party No.1 and also issuing of policy and also not disputed regarding the occurrence of the accident and damage to the vehicle.

4. The opposite parties further submitted that after due assessment of loss, they sent voucher for Rs.1,12,500/- to the complainant, but the same was refused and demanding Rs.2,65,446/- towards damages including repair charges of the engine. As per the report of the surveyor and also letter of complainant, it is clear that at the time of accident, the engine of the vehicle was not damaged, that after placement of the vehicle from the place of accident to Radha Madhav Auto Mobiles for repairs, it was observed that 1, 2 and 3 connecting rods are bend and cylinder block No.1 bore is slightly damaged as its bottom end pertaining to the engine of the vehicle.


The complainant did not submit the estimation of the bill of engine repair at the time of the furnishing the estimation of bill of damage of the vehicle. That after submitting the estimation of bill of repairs, the complainant further submitted the supplementary estimates about the repair of engine of vehicle. As per the condition No.4 of private car policy, the extension further damages (supplementary estimation) is entirely at the insured own risk, in view of the above said condition, the opposite parties are not liable to pay damages.


The opposite parties referred the above said matter for the second opinion to simax surveyors, Chennai, who opined that at the time of accident, the engine of the vehicle was not damaged, if the engine was damaged, the engine cannot run for 150 K.Ms from the place of accident to Radha Madhav Automobiles, the vehicle was moved on its own power to the lift post, because the engine was in good condition. After shifting of the vehicle, the engine started giving trouble. I the light of the above observations of simax surveyors, the opposite parties are not liable and prayed to dismiss the complaint.

5. On behalf of the complainant, Exs.A.1 t A.5 are marked.

6. On behalf of the opposite parties, R.Ws.1 and 2 are examined. R.W.1 is surveyor and loss assessor and R.W.2 is the Senior Assistant of opposite parties and Exs.B.1 to B.6 are marked. (Exs.B.4 to B.6 are marked subject to objection).

7. Heard both sides. Perused the oral and documentary evidence. Upon which the point that arose for consideration is,

1. Whether the engine of the vehicle caused damaged in

the accident?

2. Whether the complainant is entitled to the amount

claimed in the complaint?

3. To what relief?

Point No.1to 3:



8. The case of the complainant is that the vehicle insured with opposite party, met with an accident on 8-7-2004 at Tippanapalli village of Chandrugonda mandal and in the said accident, the vehicle was totally damaged. When the accident was reported to the opposite parties, they sent their spot surveyor who estimated the damage of the vehicle, he estimated the damage at Rs.1,12,500/-. After that the vehicle was taken to Radha Madhav Automobiles, Vijayawada, where the necessary repairs have been effected and the said automobiles charged an amount of Rs.2,65,446/- towards the charges for repairs and also spare parts and submitted the original bills to opposite parties. But the opposite parties restricted the damage to Rs.1,12,500/- and sent a letter to receive the said amount by signing the claim loss voucher and then only they would issue a cheuqe for Rs.1,12,500/-, though the complainant insisted the opposite parties that he is entitled for Rs.2,65,446/-, but the claim of complainant is restricted to Rs.1,12,500/-, he refused to receive and filed the present complaint.

9. It is an undisputed fact that the complainant is the owner of the quails vehicle and had taken policy with the opposite parties, for the period from 19-4-2004 to 18-4-2005. It is an undisputed fact that the said vehicle met with an accident on 8-7-2004. As on the date of accident, the policy was in force. It is also not an undisputed fact that immediately after the accident, the opposite party deputed the surveyor, who estimated the damage caused to the vehicle at Rs.1,12,500/-, but the complainant refused to receive the said amount, demanded to pay Rs.2,65,446/- including the repair charges of the engine. The dispute arose regarding the damage caused to the engine of the vehicle.


So far as the damage of the body of the vehicle is concerned, the opposite parties have offered an amount of Rs.1,12,500/-, but the complainant refused to receive the said amount and intimated the same to the opposite parties by way of Ex.A.3, Legal notice, though the amount offered by the opposite parties is confined to the repairs caused to the body only, but not to the engine. On this aspect of the case, the complainant refers to Ex.A.2, bill issued, dt.14-9-2004 issued by Radha Madhav Automobiles, Vijayawada, estimating the amount of Rs.2,65,446/-, towards repair charges and also refers to Ex.A.3, legal notice got issued by the complainant to the opposite party demanding to pay the amount covered under Ex.A.2, spent towards repair charges. Ex.A.4 is the reply notice.

10. On the other hand the case of the opposite parties is that on the intimation and occurrence of the accident, they appointed a surveyor, R.W.1, to estimate the damage to the body of the vehicle and accordingly offered an amount of Rs.1,12,500/- and sent a claim loss voucher, but the complainant refused to receive the same, demanding Rs.2,65,446/-. It is the case of the opposite parties that within 24 hours of the accident, the vehicle was brought to the garage for repair. In fact no accident was caused to the engine of the vehicle. The alleged damage to the engine, it said to have caused after placing of the vehicle from the place of the accident to Radha Madhav Automobiles for repairs. It is the reason that the complainant did not submit the estimation of the bill of the engine at the time of submitting the original bill for estimation of damage. Therefore, supplementary estimation about the repair of the engine is violated as per the condition No.4 of the private car policy.


The opposite parties got examined the surveyor who conducted survey on 17-7-2004. He has taken other three surveyors, and checked the accident vehicle and asked the in-charge of the garage, Durgaprasad, to bring out the vehicle from the cellar to the open place for taking photographs and observed that the vehicle of the engine was in working condition and none of the vehicle repairers expressed any doubt on the functioning of the engine of the vehicle and also the estimation submitted by the complainant did not speak any damages to the engine.

11. During the course of cross-examination, R.W.1 admitted that the engine of the vehicle was dismantled in his presence and the said vehicle was brought to the garage within 24 hours of the accident. He further admitted that he was present at the time when the dismantle took place and the said dismantling was ordered by the mechanics since there is some damage to the inner parts of the engine. He further admits that he was present throughout the dismantle process and also admits that he found damage in the internal parts of the engine of the vehicle and according to him, the major parts i.e., connecting rods, engine block, and other bearing etc., were damaged.


These parts are to be replaced and also further admits that once major parts of the engine caused damage minor parts in around of the major parts also need to be replaced and he estimated the loss caused to the engine more than at Rs.1,00,000/-. Apart from R.W.1, the opposite parties got examined R.W.2, who stated that he does not have any personal knowledge regarding the accident and also admits that he did not visit the place of accident and did not verify where the damage caused to the vehicle. On the basis of record, he is filing his chief-affidavit. Exs.B.4 to B.6 are marked subject to objection.

12. As seen from the above record, the opposite parties have admitted all the aspects of the case of the complainant except the damage caused to the engine of the vehicle. The opposite parties place reliance to the evidence of R.W.1, who is the official surveyor, estimated the loss to the vehicle caused in the accident, but his estimation is confined to the loss caused to the body of the vehicle only. But in his evidence, he has clearly admitted that the dismantle of the vehicle took place in his presence and he further admitted that before reopening he could not visualize the damage caused inside the engine of the vehicle and that will be detected only by the mechanics, once opened the engine.


In this case dismantle of the engine of the vehicle has been ordered by the mechanics, as there was some damage to the internal parts of the engine. In his cross-examination, R.W.1 has clearly admitted that there are four major parts of the engine said to have been damaged and he has mentioned the names of the major parts which need to be replaced and he also estimated the loss caused for replacement is to be Rs.2,65,446/-. The opposite parties cannot disown their own evidence tendered by their own witness. Ex.A.2 is the cash receipt issued by Radha Madhav Automobiles, which is a relevant and important piece of document.


On the basis of this document, a positive inference can be drawn as regards the damage caused to the vehicle including the engine. This document is out come of investigation made by mechanics of the said garage. Therefore, this document can safely believed to estimate the actual damage caused to the vehicle including the engine. According to this document an amount of Rs.2,65,446/- is said to have paid by the complainant towards repair charges of the vehicle. This document cannot be brushed aside easily without valid substance. In view of the above facts and circumstances of the case, the complaint is fit to be allowed.

13. In the result, the complaint is allowed, directing the opposite parties to pay an amount of Rs.2,65,446/- (Rupees two lakhs, sixty five thousand, four hundred and forty six only) together with interest at 9% P.A. from the date of filing of complaint, till the date of deposit. They are further directed to pay an amount of Rs.2,000/- (Rupees two thousand only) towards costs of the litigation. There is no order as to the compensation.

ABDULAZEEZ
...........Appellant(s)

Vs.

THE MANAGER ,THE NEW INDIA ASSURANCE CO LTD.
...........Respondent(s)






ORDER




Complainant is the registered owner of Autorikshaw bearing No. KL-11-U-4467 and he had insured the same with the opposite party for all the risks including own damage. The above said policy is bearing No.760603760603/31/06/01/14061. In the month of September 2007, the said vehicle met with an accident and was damaged. Immediately after the accident, complainant informed the same to the opposite party and submitted the claim. Complainant had also produced all the documents as demanded by the opposite party. Opposite party had deputed their surveyor to inspect and assess the damages of the vehicle. Accordingly the surveyor appointed by the opposite party had inspected the vehicle. The vehicle was garaged and repaired from M/s.Ace Motors Pvt. Ltd., who is the authorized dealer of the vehicle. Complainant had spent an amount of Rs.13400/- to rectify the damages sustained by the accident.


After completing the work complainant had produced all the original bills, vouchers and other documents to the opposite party for processing the claim. Complainant is having valid driving licence to drive the vehicle and copy and original of the same was also produced before the opposite party. Even after complying all the procedures, opposite party did not granted insurance claim to the complainant. The action of the opposite party is definitely deficiency in service. Therefore complainant prays to direct the opposite party to pay Rs.13,400/- towards the repair work and Rs.25000/- as compensation.



Opposite party entered in appearance and filed version. Opposite party admits that complainant’s three wheeler goods vehicle bearing No. KL-11-U-4467 was insured with this opposite party for a period of one year from 2.12.2006 to 1.12.2007 for covering own damage risk. Complainant had not informed the police authorities about the accident. The averment in the complaint that the vehicle was repaired from M/s. Ace Motors Pvt. Ltd. and complainant had spent an amount of Rs.13400/- to rectify the damages sustained by the accident is false and baseless and denied by this opposite party.


This opposite party is not liable to pay Rs.13400/- or any other amount to indemnify the complainant. Moreover, complainant is bound to produce required documents before the opposite party for processing the claim. Such non production of required documents by the complainant caused much loss and hardship to this opposite party. Opposite party further submits that complainant was asked to furnish his driving licence among other documents and subsequently he submitted a driving licence which will show that he had got the licence to drive motor cycle with gear and also autorikshaw.


Since the vehicle allegedly involved in the accident was a three wheeler goods vehicle, he should have produced a licence to drive such a vehicle, which is a condition for the insurance policy. Even after giving sufficient opportunity to the complainant, he failed to produce the licence and badge. Therefore opposite party repudiated the claim. Under these circumstances complainant is not entitled to get any relief from the opposite party. Hence complaint is liable to be dismissed.



Points for consideration: Whether the complainant is entitled to get any relief from the opposite party? If so, what is the relief?



Complainant was examined as PW1 and Ext. A1 to A5 were marked on the side of the complainant. Opposite party has not adduced any oral evidence. Ext. B1 to B3 were marked on the side of the opposite parties. Ext. B3 marked as subject to objection.



While perusing Ext. B1 document, it is seen that the vehicle involved in the accident has got valid insurance at the relevant time. The important question raised by the opposite party is that whether the complainant is having a valid driving licence to drive the three wheeler goods vehicle? Definitely Ext. A5 shows that the complainant was authorized to drive three wheeler goods vehicle. Ext. A4 also shows that the licencing authority issued the driving licence in favour of the complainant stating all the details in the licence. Ext. A5 reveals that complainant had received badge on 6.1.2005. Under these circumstances opposite party cannot absolve from their liability to pay the insurance amount. Ext. B2 document no where challenged by the complainant. Since the B2 document unchallenged, we are accepting the B2 survey report. Under these circumstances, complainant is entitled to get repair charge of Rs.3644/- and Surveyor’s fee of Rs.840/-.



Therefore petition is allowed and the opposite party is directed to pay an amount of Rs.4484/- towards the repair charge and Surveyor’s fee and also to pay an amount of Rs.3000/- towards compensation to the complainant. Comply the order within 30 days on receipt of the copy of this order.

Ashok Kumar son of Sh. Gian Chand care of M/s Deepak Filling Station, Village Kaind, Malerkotla Road, Ludhiana.

(Complainant)

Vs.



The New India Assurance Company Limited through its Divisional Manager, DO-V, Opposite Fire Brigade, G.T. Road, Miller Ganj branch, Ludhiana.

(Opposite party)






O R D E R



1. Complainant being owner of newly purchased truck bearing registration no. PB-10-CD-1066, got it insured from opposite party vide policy no. 361700/31/00/01/00004310, valid from 18.10.2008 to 17.10.2009. The said vehicle met with an accident on 25.11.2008 damaging extensively. Claim was lodged with opposite party who engaged a surveyor and authorised the complainant to get the vehicle repaired at the workshop of his choice. Then the vehicle was got repaired from M/s Dada Motors, Ludhiana. During process of repair, surveyor of opposite party visited the workshop several times and inspected the vehicle. After repair in December 2008, Dada Motors issued bill dated 1.1.2009 and he sent the same to opposite party for making payment to Dada Motors. Thereafter, he was required by opposite party for collection of the cheque prepared by them for repair of the vehicle for handing over to M/s Dada Motors.


He then visited the office of opposite party who directed him to meet Sh. Jagmohan Singh Assistant Manager, who was having the cheque. Sh. Jagmohan Singh put off the matter on lame excuses. Till today, opposite party has not paid cheque for the amount spent on repair. Such act on the part of opposite party is claimed amounting to deficiency in service. Hence, this complaint under section 12 of the Consumer protection Act, 1986, claiming repair charges of Rs. 2,65,874/- along with compensation of Rs.1,00,000/- with 18% per annum interest.

2. Opposite party in reply has admitted obtaining insurance policy qua his vehicle by the complainant and lodging claim under the policy for accidental damage to the vehicle. But claimed that they have not decided fate of the claim of the claim nor repudiated the same. Hence, the complaint is not maintainable. Averred that the complainant is guilty of infringing terms and conditions of the policy by carrying a passenger in the goods carrier vehicle. Unauthorized passenger was traveling in the goods carrier vehicle of the complainant at the time of accident which was in violation of Motor Vehicle Act as well as against the policy. On receipt of the claim, it was registered, entertained, processed and engineer Sh. Brij Mohan was deputed for spot survey, who submitted the report on 2.12.2008.


Thereafter, Sh. G.P.S. Miglani Surveyors & Loss assessor was engaged to assess the loss for final survey who assessed the loss at Rs. 1,94,842/- payable under the policy. He submitted his report dated 7.1.2009. Then M/s Dharma pal Pvt. Detective and Investigator was engaged to investigate the matter qua accident of the truck. As per his investigation, there were two injured persons in the accident namely Sh.Inderjit Singh and Sh.Uttam Singh. It was made out that along with Sh. Uttam Singh conductor, Sh.Inderjit Singh unauthorized person was traveling in the truck at the time of accident.


After receiving the report of the investigator and scrutinizing the same, officials of the insurance company concluded that the insured had violated the terms and conditions of the policy by allowing unauthorized passenger to travel in the truck. Officials of the Company approved the claim on non standard basis for Rs. 1,40,415/-. Complainant consequently vide letter dated 17.3.2009 was communicated and requested to give consent so that company may release the payment, but he did not respond to the letter. As such, his claim has been settled for Rs.1,46,4`15/- on non standard basis, so, there is no deficiency in service on their part and the complaint deserve dismissal.

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

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

5. We need not to burden the record qua admitted aspects of the case. In brevity, admitted aspects are that the vehicle in question of the complainant was insured with the opposite party vide policy Ex.R.71 and during currency of the policy, complainant lodged insurance claim regarding damage to the insured vehicle, suffered by it in an accident. Opposite party engaged the investigator/loss assessor after receipt of the claim from the complainant and loss assessor Sh. G.P.S. Miglani Pvt. Ltd. vide report Ex.R.5 dated 7.1.2009 assessed net loss suffered by the vehicle to the extent of Rs.1,94,842/-. Earlier spot survey was got conducted by the opposite party by engaging Sh.Brij Mohan Engineer as a surveyor, who had furnished the report Ex. R6 dated 2.12.2008 to the opposite party. Then services of Sh. Dharampal Retired Inspector were engaged as investigator who furnished his report Ex.R.4 dated 26.1.2009. Thereafter, investigator reported that one unauthorized passenger at the time of accident was traveling in the truck.

6. Basing this report, opposite party settled the claim for Rs. 1,40,415/- on non standard basis.

7. Now we shall advert to the point requiring determination from us.

8. It is argued by ld. counsel for the complainant that even if defence of opposite party is taken up on its face value that one unauthorized person was traveling in the vehicle, it would not amount to violation of material condition of the policy. Therefore, opposite party committed error in settling the claim on non standard basis.

9. Whereas, on behalf of opposite party, it was pointed that complainant was guilty of committing fundamental breach by carrying a passenger on goods carrier. Therefore, they were entitled to apply and pay compensation on non standard basis.

10. Opposite party in support of contention drew our attention to cases reported as New India Assurance Co. ltd. Vs. Surinder Singh Khurana reported in 1 (2006) CPJ 43 (NC) and United India Insurance Co. Ltd. Vs. Gian Singh, II (2006) CPJ 83 (NC) . In both these cases, in violation of Motor Vehicle Act and conditions of the Insurance policy, insured were paid by applying non standard claim formula.

11. As per report of the investigator, cleaner of the truck provided lift to a person and he was traveling when the vehicle met with an accident. Question is whether by giving lift to a person known to cleaner of the truck, would prove to be a fundamental breach of conditions of the policy.

12. Such like question came for consideration before the Apex Court in case B.V. Nagaraju Vs. oriental Insurance Company Ltd. Divisional officer, Hassan, 1996 (4) Supreme Court Cases, 647. Their Lordships in that case held as under:



“It is plain from the terms of the Insurance policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when traveling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the poser, keeping apart the load it was carrying. In the present case, the driver of the vehicle was not responsible for the accident. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, can not be said to be such a fundamental breach that the owner should, in all event, be denied indemnification.

The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which by themselves, had gone to the causing of the accident. The exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy that is to indemnify the damage caused to the vehicle.”



13. Relying on the aforesaid authority of the Hon’ble Supreme Court, Hon’ble National Commission in case reported as 2008 (2) CLT, page 374 titled as National Insurance Company Ltd. Vs. Subhash Chand Kataria & Anr. concluded that traveling by two unauthorized persons in the goods carrier would not amount to fundamental breach of terms and conditions of the policy, as it had no nexus with the cause of accident.

14. In the instant case also merely because one person was permitted to travel in the vehicle who was known to cleaner of the truck, without knowledge of the owner of the truck, in our view would not amount to fundamental breach of the policy. Nor there is any proof that on account of traveling by such person in goods carrier , it contributed to cause accident and would amount to fundamental breach of the policy.

15. In the light of the aforesaid aspects, we feel that opposite party was not justified in applying non standard clause by reducing the amount of compensation as assessed by its surveyor. Therefore, they are proved to be guilty of resorting to unfair trade practice. Hence, letter Ex.R.1 issued to the complainant offering Rs. 1,46,257/-, would not absolve the opposite party to pay the amount of loss assessed at Rs.1,94,842/- as assessed by the surveyor in his report Ex.R.5.

16. Sequel to the discussions, we allow the complaint and as a result direct opposite party to pay an amount of Rs.1,94,842/- to the complainant with 9% interest per annum from the date of complaint till payment and also in addition to pay compensation of Rs.5000/-(Rs. Five Thousands only) and litigation cost of Rs.2000/-(Rs. Two Thousands only). Compliance of the order be made within 30 days of receipt of copy of the order, which be made available to the parties free of costs.

Meenu Soni w/o Sh. Narender Soni, resident of H.No.2205, Sector 38-C, Chandigarh.

2. Narender Soni s/o Sh. Ganga Bishan Sonia, resident of H.No.2205, Sector 38-C, Chandigarh.

….…Complainants

V E R S U S

1. The New India Assurance Company Ltd., Branch Office (352301) Nangal Chowk, Ropar-140001.

2. The New India Assurance Company Ltd., Regional Office, Sector 17, Chandigarh.

3. The Rakhsa TPA Pvt. Ltd., SCO No.181, IInd Floor, Sector-7, Chandigarh



..…Opposite Parties








Succinctly put, the complainants purchased a mediclaim policy from the OPs for the period from 9.7.2008 to 8.7.2009. They were supplied the copy of the cover note but the terms and conditions were never supplied. During the validity of the insurance policy the complainant No.1 got medical treatment of fever from Saroj Hospital and Heart Institute, Delhi and claim regarding the same was lodged with the OP-3 which was rejected despite receipt of certificate of the concerned doctor of the said hospital. The complainants also served a legal notice dated 28.5.2009 upon the OPs but to no avail. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2. In their written reply OPs 1 & 2 submitted that the policy terms and conditions were duly supplied to the complainants. It has been pleaded that the claim of the complainant was rejected because as per the terms and conditions of the policy the treatment arising from or traceable to pregnancy, childbirth, miscarriage, abortion or complications of any of this kind were not covered under the policy. It has been stated that the complainant No.1 had also previous history of abortion. The receipt of the legal notice has been admitted but it has been pleaded that as the claim was not tenable, the same was not paid.


Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint has been made.

3. OP-3 did not appear despite due service, hence it was proceeded against exparte.

4. Parties led evidence in support of their contentions.

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

6. The learned counsel for the Complainant has argued that the conditions, now being introduced by the OP, covering the Mediclaim Policy (Annexure R-1), were never brought to her notice and, therefore, the same cannot be pressed into service against her. In support of his contention, the learned counsel cited the case of “M/s Modern Insulators Limited Versus Oriental Insurance Co. Ltd.”, AIR 2000 Supreme Court 1014. A perusal of the record, however, shows that it was specifically brought to her notice that the Policy would be governed by the terms, provisions, exceptions, conditions of the Company’s Standard Printed Policy/ Clauses applicable to the class of insurance.


This was specifically mentioned in Annexure C-1 – the Policy issued in her favour. The Complainant never asked for a copy of the terms & conditions, which show that she was already in the knowledge of the same and, therefore, did not need a copy for perusal. It, therefore, cannot be said if Annexure R-1 is alien to the Policy or the terms thereof were not told to the Complainant.

7. The OPs have repudiated the claim on the ground that in view of 4.4.13 the treatment arising from or traceable to pregnancy, childbirth, miscarriage, abortion or complications of any of these, are excluded from the scope of the Policy. There is no dispute about it that the Complainant was suffering from fever and there was miscarriage, on which the amount was spent. The short question is whether the miscarriage was due to fever or the fever was due to miscarriage. If the fever was due to miscarriage, then the treatment therefor would not be reimbursible in view of 4.4.13. However, if the fever already existed and it caused abortion, then the treatment would not be covered under the aforesaid clause.

8. Annexure C-8 is the Certificate issued by Kharb Hospital, showing that the abortion took place on 9.3.2009 and when the Complainant was admitted in hospital, she had fever for the last 2 days. Annexure C-10 is the discharge summary, showing that the Complainant was admitted because she was complaining of continuous fever – high grade, Chiles & rigor since one month with pain in abdomen. It also records that there were abortion due to fever. Annexure C-6 is the prescription slip dated 28.2.2009, showing that the Complainant had fever on 21st which was of high grade and it lasted for 2-3 days. She had loose motions for 3 days, nausea for 3 days and pain in the abdomen. Annexure C-7 is the prescription issued by Kharb Hospital, showing that she was admitted with fever since 20 days.


The Certificate (Annexure C-10) issued by Saroj Hospital and Heart Institute also shows that she was suffering from fever, which resulted in abortion. Annexure C-10 is the discharge summary, showing that the abortion was due to fever. Again, a Certificate (Annexure C-31) was issued by Dr. Rakesh Gupta of Saroj Hospital and Heart Institute, in which it was specifically mentioned that it was fever, which led to abortion, because a patient cannot have Hepatospenomegaly because of pregnancy. Annexure C-31/A is also to the same effect. On the other hand, the OP has not produced any document to suggest if the fever was due to pregnancy.

9. Otherwise also, it is of common knowledge that the pregnancy is not accompanied by fever. It is an exceptional case where there may be fever, but not a general rule. The cause of fever, therefore, cannot be pregnancy, because if that had been so, then every pregnant women would have fever. On the other hand, there may be fever due to certain other reasons and ultimately, it caused abortion. We are, therefore, of the opinion that the cause of abortion was fever and not vice-versa. The OP is definitely bound to reimburse the Complainant for the treatment of fever, even if it led to abortion and the repudiation on this ground cannot be maintained.

10. In view of the above discussion, we are of the opinion that the complaint must succeed. The same is accordingly, allowed. The OPs are directed to pay to the Complainant Rs.29,330/-, along with interest @9% per annum with effect from 1.5.2009 (one month after the repudiation letter Annexure R-2), along with Rs.5,000/- as costs of litigation. The amount shall be paid within 30 days from the date of receipt of the copy of the order, failing which the OPs would be liable to pay the same along with penal interest 12% per annum since filing of the present complaint i.e. 17.7.2009, till the payment is made.

Sh. Parkash Chand son of Sh. Bhura Ram resident of village Syanh, Post Office Lohara, Tehsil Sadar, District Mandi, H.P C/O Devi Singh Village Bharjawanu, Post Office Jughan, Tehsil Sunder Nagar, District Mandi, H.P.



…Complainant

Vs



New India Insurance company Ltd through its Branch Manager, Hospital Road, Mandi, H.P.



…..Opposite party









ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he is owner of tractor No.HP-65-0565 which was insured with the opposite party. During the currency of the insurance policy, said tractor met with an accident on 27-11-2007 at Kundi Mor District Sirmour, Himachal Pradesh when it was being driven by licensed driver Sh.Ganga Ram son of Sh.Sardaru Ram.


The matter was immediately reported to the opposite party who deputed their surveyor to assess the damage who visited the accidental site and inspected the vehicle at the spot and prepared detailed report of the loss . The tractor in question is total loss and the same was insured in the sum of Rs.1,72,500/-. The complainant alleged that the claim had been repudiated on the ground that unauthorized three persons were sitting in the tractor at the time of accident . With these averments , the complainant had sought a direction to the opposite party to pay Rs.1,72,250/- alongwith costs and interest .

2. The opposite party had filed reply wherein it has been pleaded in preliminary objections that the complaint is not maintainable , that the complainant has not come with the clean hands before this Forum and had suppressed the material facts and that the liability of the insurance company is contractual , that the tractor is goods carriage and sitting capacity of the tractor is one and at the time of the accident three persons were sitting in the tractor which amounts to violation of the terms and conditions of the insurance policy and the opposite party is not liable to indemnify the insured. On merits , the opposite party averred that the sitting capacity of the tractor is one i.e. driver but at the time of the accident three other unauthorized passengers namely S/Sh. Kesari Lal , Jagdish and Ramesh Chinda were sitting and as a result of which the accident took place and Sh. Kesari Lal died in the accident .


The opposite party had admitted the intimation of accident and contended that Sh. M.L. Gupta Surveyor was appointed to assess the loss who had assessed the loss on repair basis at Rs.1,35,717.64 paise and on total loss basis Rs.1,50,250/-. The value of salvage is assessed at Rs.29,000/- without registration certificate The insured declared value of the vehicle was at Rs.1,52,250/-. Rest of the contents of the complaint has been denied being wrong . .The opposite party prayed for dismissal of the complaint



3. We have heard the ld. counsel for the parties and have carefully gone through the entire record. The case of the complainant is that the opposite party has repudiated the claim on the ground that three unauthorized persons were sitting in the tractor at the time of the accident which is no ground for repudiation of the claim. On the other hand, the caes of the opposite party is that it is not liable to indemnify the insured because three unauthorized passengers were travelling in the tractor at the time of the accident in violation of the terms and conditions of the insurance policy. To substantiate its case , the opposite party had relied upon the copy of First Information Report Annexure OP-4, report of investigator Sh. R.L.Vasishta dated 5-2-2008 Annexure OP-2 alongwith the affidavit of the investigatorO.P.7.


The perusal of the first information report No.66/2007 dated 1-12-2007 Annexure OP-4 shows that at the time of the accident three persons besides driver were travelling in the tractor in the accident. The report of Investigator Sh. R.L. Vasishta dated 5-2-2008 also shows that besides driver three persons namely S/Sh. Kesari Lal , Jagdish and Ramesh Chinda were sitting in the tractor at the time of the accident. The report of the Investigator Sh. R.L.Vasishta is supported by his affidavit. The onus to prove that the unauthorized persons were travelling in the tractor at the time of the accident was on the insurer which has been discharged by it by adducing aforesaid documentary evidence .


However the complainant has failed to adduce any evidence contrary to it . The ld. counsel for the complainant has tried to rely upon the statements of Ramesh Chhinda and Jagdish which have been given by them before JMIC Court No.2, Paonta Sahib . However, in our opinion , no benefit can be derived by the complainant from the aforesaid statements because the statements have not been proved before this Forum by the complainant in accordance with law. The perusal of the registration certificate of the tractor Annexure

OP-5 shows that its seating capacity is One . As discussed above, the opposite party had proved that at the time of accident three persons besides the driver were sitting on the tractor .Therefore, we have no hesitation to conclude that the tractor was being plied in violation of the terms and conditions of the insurance policy.

5 The next question, which arises for determination is as to whether the opposite party was justified in repudiating the claim of the complainant as a whole on this score

or not .The answer to this poser in all fairness as well as in the interest of justice would be in the negative for the reason that opposite party had failed to prove and establish that the carrying of unauthorized passengers in the vehicle was the sole and contributory cause of the accident. No evidence has been led by the opposite party to this effect. In our opinion, it cannot be said that said breach is such a breach that the owner should in all event be denied indemnification.


This breach cannot be termed as fundamental breach empowering the opposite party to repudiate the claim as a whole . As a matter of fact , the complainant or his driver by allowing three unauthorized passengers in the vehicle has contravened the limitation clause as to use in the policy and in case of such breach, it is clause 10 of the Procedural Manual of Motor Claims which is applicable and as per the same , where there is any breach including breach of limitation as to use , the claim has to be considered and paid as Non Standard claim. The clause 10 of the Procedural Manual of the Motor Claim is reproduced here asunder:-



“ 10. Non Standard Claims .

Following standard claims

Following types of claims shall be considered as non standard claim and shall be settled as indicates below after recording the reasons.

Description Percentage of settlement

Under declaration Deduct 3 years difference

Of licensed carrying in premium from the

Capacity amount of claim or deduct 25 % of claim amount whichever is higher



Overloading of Pay claims not exceeding

Vehicle beyond 75% of admissible claim

Licensed carrying

Capacity



Any other breach Pay up to 75% of admissible claim

Of warranty/condition

of policy including

limitation as to use





6 In view of above discussion , it is held that the complainant is entitled to the insurance claim up to 75 % of the loss caused to the tractor in question.

7 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the tractor .The complainant in his complaint had clamed Rs. 1,72,250/- on total loss basis but even a single document has not been adduced in this behalf .On the other hand, the opposite party has admitted in his reply that loss assessed by the surveyor on total loss basis is Rs.1,50,250/-. The opposite party has also adduced in evidence the copy of report of Surveyor Sh. M.L. Gupta which corroborates the version of the opposite party that the loss sustained by the complainant on account of accident of the tractor in question is to the tune of Rs.1,50.250/-and the value of salvage has been assessed at Rs.29,000/- The report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons.


The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kirana Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle is Rs.1,50,250/- subject to deposit of salvage ,the value of which has been assessed at Rs.29,000/- and he is entitled to 75% of this amount which comes to Rs.1,12,687/-.

8 In the light of above discussion, the complaint is partly allowed and the opposite party is directed to pay Rs.1,12,687/- with interest at the rate of 9% p.a. from the date of filing of the complaint till realization subject to deposit of salvage by the complainant value of which has been assessed at Rs.29,000/-. In addition to this, the opposite party is also directed to pay Rs.2500/- as costs of litigation to the complainant.

9 Copy of this order be supplied to the parties free of cost as per Rules.



10 File, after due completion be consigned to the Record Room.

Sanjay Sood son of Sh. Janki Dass Sood c/o Monal Travel Manali, ,Tehsil Manali, District Kullu, H.P. owner of vehicle No.HP-01-3531.



…Complainant

Vs



New India Insurance company Ltd through its Branch Manager, Branch Office at Kullu, Tehsil and District Kullu, H.P.





…..Opposite party





ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he is the owner of vehicle No. HP-01-3531 which was insured with the opposite party in the sum of Rs. 2,75,000/- with effect from 16-11-2003 to 15-10-2004. The vehicle in question met with an accident on 23-10-2003 at about 11P.M. and was totally damaged . That after the accident , the complainant lodged the total loss claim with the opposite party and submitted all the relevant documents and the opposite party offered the complainant to sign the consent letter dated 6-1-2004 in the sum of Rs.2,00,000/-.


The complainant averred that he accepted the amount of Rs.2,00,000/- as full and final settlement of aforesaid accident and submitted the duly signed consent letter to the opposite party but the opposite party without any reason and justification has not made the payment of Rs.2,00,000/- till today and has been delaying the matter on one pretext or the other and lastly it has refused to admit the claim of the complainant . With these averments , the complainant had sought a direction to the opposite party to pay Rs.2,00,000 /- as insurance claim on account of total loss of the vehicle alongwith interest at the rate of 18 % per annum with effect from 24-10-2003.

2 The opposite party resisted the complaint and raised preliminary objections that there is no deficiency in service on the part of the opposite party and as such the claim being not maintainable is liable to be dismissed and that the complaint is not filed within the period of limitation as the complaint already filed had been dismissed in default on 7-7-2005 and application for restoration of the complaint has also been dismissed and as such the complaint is liable to be dismissed. On merits the opposite party has admitted that the vehicle in question was insured with it . but denied any deficiency in service and pleaded that the claim has been rightly repudiated as there was clear cut breach of insurance policy and contract of insurance policy.


The accident of the vehicle has been admitted . The opposite party has also admitted that the complainant had lodged the claim which was duly registered , investigated and surveyor was deputed to assess the loss on the basis of terms and conditions of insurance policy and the surveyor has assessed the loss at Rs.2,14,000/- . The opposite party had averred that as per the first information report Annexure R-4 Desh Raj son of Sh. Parhlad Ram was driving the vehicle at the time of accident who was holding a fake license . The opposite party had hired the services of Sh.D.P. Sharma

( Investigator ) to verify the driving license from concerned licensing authority who after verification of the said driving license reported vide Annexure R-5 that driving license No.7654/SDMK was found to be issued to two different persons on two different dates , firstly the said license No.7654/ SDMK was issued in the name of Rajinder Kumar on 23-9-1997 and secondly same number has been issued to Sh. Yagh Wanchu son of Narrang on 28-11-1997 and on further inquiry from RLA Kangra , the dealing hand stated that there has been human mistake in issuing the said license twice . The investigator has also verified the record of driving license pertaining to the year 1981 and found that during that period Sr. No.600 series was prevalent .


That the complainant has been apprised by the opposite party to this effect vide letters dated 13-2-2004, 3-3-2004 and 22-3-2004 which are Annexures R-7 to R-9 to produce the valid driving licence but he failed to do so. The submission of consent letter by the complainant to the opposite party has not been denied . It has also been pleaded that the claim has been rightly repudiated vide letter dated 14-5-2004 Annexure R-11 as the driving license of Sh.Des Raj was fake . The opposite party had denied the charge of deficiency in service on its part and prayed for dismissal of the complaint.

3 We have heard the ld. counsel for the complainant and have carefully gone through the entire record. At the very outset be it stated that the complaint was dismissed by this Forum on 5-4-2006 on the ground that earlier complaint No.70/2004 was dismissed in default of appearance.


The complainant has preferred an appeal against the order dated 5-4-2006 and the Hon’ble State Commission vide order dated 10-4-2009 passed in Appeal No.118/2008 has set aside the order dated 5-4-2006 and remanded the case and the complaint has landed to this Forum for fresh decision. Be it stated that the opposite party has not disputed the insurance and accident of the vehicle in question. It is also not in dispute that Sh.Desh Raj was driving the vehicle at the material time .The claim of the complainant has been repudiated by the opposite party on the ground that since the complainant has failed to furnish the complete particulars with respect to the driving license of Sh.Desh Raj driver despite the issuance of various letters , therefore , his claim was treated as No claim.

4 Now the question which arises for determination is as to whether the opposite party was justified in repudiating the claim on aforesaid ground . In this respect, the opposite party had made reference to the correspondence which had preceded prior to the institution of the complainant and has stated that by number of letters, the complainant was called upon to furnish the particulars of driving license of the driver for the purpose of the settlement of the claim but despite that the complainant has failed to furnish the particulars of driving license. The perusal of the material on record shows that the complainant has produced a certificate issued by Registering and Licensing Authority Kullu wherein it has been written as under:-

Certified that driving license No.589 /SK/7654/81 which is issued to Sh.Des Raj son of Sh. Parlahad resident of village and Post office Bhali Tehsil Nurpur , District Kangra , H.P. for HMW Hill road . Duplicate copy of License has been issued to Sh.Desh Raj on 12-5-1999 and 5-4-2003 by this office .

Aforesaid certificate shows that the driving license issued by the RLA Kullu is duplicate license and was issued on 12-5-1999 and 5-4-2003 whereas the original driving license relates to the year 1981. However from the aforesaid certificate, it is not clear as to who had issued the original driving license . Thereafter ,the opposite party had hired the services of Sh.D.P.Sharma , Investigator for verifying the driving license No.7654/81/K who in his report Annexure R-5 mentioned that the driving license No.7654/SDMK was found to be issued to two different persons on different dates, firstly in the name of Sh.Rajinder Kumar on 23-9-1997 and secondly in the name of Sh. Yagh Wanchu son of Sh. Norrang resident of Dharmshala on

28-11-1997 by the office of RLA Kangra , H.P. It has further been reported by the Investigator that driving license register for the year 1981 was also scanned and it was revealed that no such driving license was issued during that period as the serial number of 600 series was prevalent at that time .Thereafter , the opposite party had written to the complainant vide letters dated 13-2-2004,3-3-2004,22-3-2004, annexure R-7, to Annexure R-9 to produce the details of the driving license and name of RLA to enable it to get it verified from the concerned RLA who has originally issued this license in the year 1981 to Sh.Desh Raj son of Sh. Prahlad Ram.


However, despite the issuance of aforesaid letters , the complainant has failed to produce the driving license and it is in these circumstances the claim was repudiated vide letter dated 14-5-2004 Annexure R-11.It is to be stated that as per the terms and conditions of the insurance policy Annexure R-1, the opposite party i.e. the insurance company is under an obligation to settle the claim in accordance with the terms and conditions of the insurance policy. The policy in such situation is in par with the contract . There are corresponding obligations caste under the contract upon the insured i.e. complainant herein as well. If one reads the printed terms and conditions of the policy , it has been specifically mentioned in condition No.1 that immediately upon the occurrence of any accidental loss or damage, a notice shall be given in writing to the company and thereafter the insured shall give all such information and assistance as the company shall require.


In the present case, as it is amply demonstrated from the correspondence between the parties which preceded to filing of the complaint that the complainant despite being repeatedly called upon for furnishing the particulars of driving license had not done so. As a matter of fact , there is failure on the part of the complainant to discharge his contractual obligation to furnish the driving licence or its particulars to the insurer which were repeatedly called upon by it from the complainant. In our opinion ,in the first place it is for the complainant to produce either the driving license or its photocopy or its particulars .


Once the complainant produces the driving license or its particulars then the onus will shift on the insurer and it is for the insurer to get the driving license verified as to whether it is valid or not. Before proceeding further, we will make a reference to the decision of The Hon’ble National Commission in the case titled Mohan Lal Tiwari vs Life Insurance Corporation of India and another 2009(1) CPC-563 wherein it has been had held that in the absence of driving license of the deceased, no accident benefits can be granted. In the aforesaid case before the Hon’ble National Commission the complainant’s son died in an accident while going on a motorcycle . However, the claim of double accident benefits was not paid by the insurance company on account of the fact that driving license was not produced.


The District Forum had directed the complainant to produce the driving license of his son within one month from the date of order and then non applicant /insurer was directed to decide the claim accordingly within two months from the date of receipt of driving license . Against the aforesaid order , the complainant filed an appeal before Hon’ble State Commission which was dismissed and aggrieved by the order passed by the Hon’ble State Commission, the complainant filed Revision petition before Hon’ble National Commission in which it was held as under:-

“…………………………………………

There is no dispute about the fact that in the absence of proof of driving license being held by the deceased insured , the benefit of accident policy cannot be given to him as per condition 10-2(b) of the policy. The question was whether he was driving motor cycle with or without driving license , so as to ascertain the insured violated any terms as per the condition 10.2(b)(iv)of the policy. ……………………

Production of driving license would have established that no violation of conditions of policy was committed by the insured. In the absence of production of such a document an adverse inference has to be drawn , in view of which ,we see no infirmity in the order passed by both the lower Fora.”





5 Therefore , in view of the aforesaid decision of Hon’ble National Commission, it will be appropriate if we direct the complainant to produce either the original driving license of Sh.Desh Raj or complete particulars of the driving license originally issued to him within a period of two months from the receipt of copy of this order and the opposite party shall decide the matter within three months thereafter.



6 In view of what has been discussed hereinabove , the complaint is disposed off with the direction to the complainant to submit either the original driving license of Sh.Desh Raj or complete particulars of the driving license of Sh.Desh Raj originally issued to him within a period of two months from the receipt of copy of this order and the opposite party is directed to take the decision of his claim within three months thereafter, in accordance with law . However, the complainant is at liberty to file fresh complaint on the same cause of action in case after production of the driving license or its particulars as aforesaid , his claim is repudiated by the opposite party or not settled within the stipulated period. The complaint is disposed of accordingly.



7 Copy of this order be supplied to the parties free of cost as per Rules.



8 File, after due completion be consigned to the Record Room.

1.

Rupan Matharu aged 42 years S/o Late Ranjan Matharu R/o B-25, MCH 308, Deep Nagar, Phagwara Road, Hoshiarpur.
2.

Renu Phull aged 47 years D/o Sh. Ranjan Matharu now W/o Sh. Charanjit Singh Phull R/o House No. 94, Street No. 4-A, Bank Lane, Shankar Nagar, Fatehgarh Road, Hoshiarpur.


......... Complainants

versus


1.

Sardar Karam Singh Memorial Satnam Hospital, Near S.D. College, Phagwara Road, Hoshiarpur, Through its Proprietor.
2.

Dr. Tarlochan Singh Medical Officer Officer Sardar Karam Singh Memorial Satnam Hospital, Near S.D. College, Phagwara Road, Hoshiarpur.
3.

BBC Heart Care Pruthi Hospital, 301 Lajpat Nagar, Jalandhar City, through its proprietor.
4.

Sainik Clinic Laboratory Jalandhar Road, Hoshiarpur, through its proprietor.
5.

Raj 3D Scans, Jalandhar Road, Near Kamalpur Chowk, Behind Bus Stand, Hoshiarpur, through its proprietor.
6.

The Oriental Insurance Company Ltd., 32 GT Road, Jalandhar-144001, through its Branch Manager.
7.

The New India Assurance Company Ltd., Bus Stand, Hoshiarpur, through its Manager.


........ Opposite Parties




1.

The complainants namely Rupan Matharu and Renu Phull have filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act. Put briefly, the facts of the case are that on 19.3.2007, late Swaran Lata slipped from the stair case and suffered hip dislocation. She was immediately taken to Sardar Karam Singh Memorial Satnam Hospital, opposite party No. 1 by complainant No. 1 and one Satpal Matharu, where she was admitted. The history of the patient was got recorded by OP No. 2 – Dr. Tarlochan Singh. The complainant No. 1 was asked to deposit Rs. 10,000/-.
2.

It is the case of the complainants that OP No. 2 advised the complainants that the patient needs hip transplantation. That the vital sign chart was prepared after examining pulse, blood pressure, temperature etc. It is the grouse of the complainants that the patient remained unattended till next day. The patient was examined by the doctor on 20.3.2007. The abnormality of the left ventilator of the heart was found and the patient was advised Eco-cardiography. It was found that there was 49% disfunction of the left side of heart. The patient was advised the tablet “Nitercotin”. The patient was also cleared for surgery.
3.

It is the allegation of the complainants that since there was 49 disfunction of the left side of heart, therefore, in such a situation the patient could not be cleared for surgery. The patient should have been referred to some heart specialist institution, whereas she was kept in hospital of OP No. 1 for two days.
4.

It is further the case of the complainants that there is no full time heart specialist in the hospital of OP No. 1. That OP No. 2 – Dr. Tarlochan Singh is unqualified doctor. The laboratory tests were conducted by opposite parties No. 1 and 2, though there is no pathologist/technician in the hospital. It is further the allegation of the complainants that Dr. Sukhnandan Singh, who was to operate Swaran Lata for hip transplantation is not ortho surgeon, as he is merely a diploma holder.
5.

It is further the case of the complainants that on 20.3.2007, the patient was referred by Dr. Sukhnandan Singh to Raj 3D Scan- OP No. 5 for certain tests. The OP No. 5 charged Rs. 2,500/- from complainant no. 1, and thereafter, directly sent the report of tests to the Hospital of OP No. 1. That no receipt of payment was issued. That OP No. 5 also told the complainant that since the patient was referred by Dr. Sukhnandan Singh, therefore, the details of the report will be explained to him and not to the patient or complainant No. 1.
6.

It is further the case of the complainants that uptil the evening of 20.3.2007, the condition of the patient went on deteriorating. The blood pressure of the patient was low and the heart beat was fast. That at about 1 a.m. (on the intervening night of 20.3.2007 and 21.3.2007), the patient was referred to BBC Heart Care Pruthi Hospital, Lajpat Nagar, Jalandhar, where she was admitted. The Bio-chemcal profile of Swaran Lata was got investigated from the laboratory of OP No. 4. The test of UREA CREATINIE was reported as normal, but the doctor of the BBC Heart Carre Pruthi Hospital, Jalandhar diagnosed it as a case of Chronic Renal Failure.
7.

It is further the case of the complainants that on 20.3.2007, the test of UREA and S.CREATININE was found normal by the technician of Sainik Clinical Laboratory. It is the allegation of the complainants that the lab tests recorded by OPs No. 3 and 4 were contradictory. Had the condition of the patient been explained by the Doctors of OP No. 3, the patient must have been taken to DMC, Ludhiana or PGI.
8.

It is further the case of the complainants that the doctors of OP NO. 1 had given INSULIN injection to the patient, who was not suffering from any sugar problem. The authorities of Pruthi Hospital charged about Rs. 75,000/- from the complainant.
9.

It is further the case of the complainants that the opposite parties are jointly and severally liable for the death of Swaran Lata. The complainant has claimed the amount of Rs. 20.00 lacs as compensation, hence this complaint.
10.

The opposite parties No. 1 and 2 filed the reply. The preliminary objections vis-a-vis mis-joinder and cause of action were raised. On merits, the claim put forth by the complainants has been denied. However, it is admitted that Swaran Lata suffered hip problem on 19.3.2007. She was brought to OP No. 1. Dr. Sukhnandan attended upon the patient at about 1.30 p.m. The patient was immediately shifted for X-ray of right hip joint lumber spine. After examination of X-ray reports, the patient and her attendants were informed about her neck femur right side fracture. They were also told that the patient requires surgery-Hemiarthoplasy. The daughter of the patient approached Dr. Sukhnandan with the request that she want to have second opinion.


However, at about 5.30 p.m., the daughter of the patient gave a consent for surgery and thereafter, investigations/tests required for the surgery were conducted. It was found that the patient was suffering from Diabetes Mellitus with random blood sugar level 400 mg/d, thus Dr. Sukhnandan advised medical fitness at 6.30 p.m., and thereafter, Dr. Ravjot (Medical Specialist) examined the patient at about 7.30 p.m., who advised Echocardiography.
11.

That the attendants of the patient told Dr. Sukhnandan that they would get the echocardiography next day, as the surgery is to be performed in the evening. Thus, after echocardiography on 20.3.2007, the patient was declared fit for surgery by Dr. Ravjot, M.D. (Medicines). However, on 20.3.2007, the surgery was postponed as desired by the attendants and at about 8.30 p.m., the patient became drowsy and Hypotensive, as such was put on pulse oxymeter to monitor vitals.


Again, the medical specialist was called at 8.40 p.m., who examined the patient and advised to start Dopamine infusion. However, the patient was immediately referred to higher centre for further management, as desired by the attendants. The attendants shifted the patient at 10.30 p.m., to Jalandhar. There was no lapse on the part of the concerned doctors of OP No. 1.
12.

It is further replied that after investigations and tests, the patient was attended upon by the competent and capable doctors. No test was ever done or performed by OP NO. 2. Dr. Sukhnandan Singh is a qualified Ortho surgeon. It is further replied that the attendants of the patient told that they want to get the tests conducted from Raj 3 D Scan Centre.
13.

Opposite Party No. 3 filed a separate reply. The preliminary objections vis-a-vis concealment of facts, jurisdiction and maintainability were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the primary history of the patient is with opposite parties No. 1 and 2, therefore, it might be correct that on 19.3.2007, Swaran Lata slipped from the stair case and suffered hip dislocation. It might also be correct that the patient was taken to the hospital of opposite parties No. 1 and 2. The patient became unconscious during the stay in the hospital of OP No. 1 and also showed abnormality of the left ventricle of the heart on 20.3.2007, thus the patient was advised Eco-cardiography which showed 49% dis-functioning of the let side of the heart.
14.

It is further replied that the patient was brought to the answering OP in Shock with Low Blood Pressure and Low Urine Output. The seriousness of the condition of the patient was discussed with the relatives of the patient. The patient was admitted to ICCU and proper treatment was started immediately. The monitoring of the patient was done regularly and continuously. ABG (Arterial Blood Gas) samples of the patient were also sent. The Potassium levels of the patient were normal.


The routine investigations were also normal except Renal function tests which included blood urrea and serum creatinine. It is denied that the replying OP got the chemical profile of the patient from OP No. 4, rather the investigations were conducted in the hospital of the replying OP. The presence of high levels of blood Urea and S. Creatinine in the presence of low Urine output, shock and hypotension confirmed the diagnosis as Acute Renal Failure. The primary life threatening problem was shock and hypotension, which was responsible for the serious condition of the patient. The replying OP gave specific treatment, which was needed to the patient.
15.

It is further replied that an additional diagnosis of severe LV dis-function was also made at the hospital of the answering opposite party. The Blood Urea and S.Creatinine showed moderate increase and Potassium levels were normal, which showed that the patient did not need dialysis or referral to a Kidney Hospital. The Nephrologist also endorsed the treatment of hypotension.


After the treatment in the hospital of the replying OP, the blood pressure of the patient started improving and stabilized around 90 mmHg. Urine output, which was nil, when the patient came, also showed mild improvement, which indicated that the treatment was in the right direction. However, the blood pressure did not improve beyond 90 mmHg and Urine output also remained low. Persistent hypotension had weakened the heart, as such it did not respond to the treatment and blood pressure remained low, despite of ionotropes and fluid therapy. Due to weak heart and damaged Kidneys, the blood pressure dropped further leading to cardiac arrest and death of the patient, despite of the best efforts by the doctors to save the patient. The cause of death of the patient was cardiac arrest, which occurred due to the hypotension of prolong standing. The cause of death was fully explained in writing to the relatives.


It is denied that the replying OP did not disclose the real and true cause of death. It is denied that the replying OP did not maintain the proper record of the treatment of the patient or did not explain the condition of the patient to the attendants. The condition of the patient was so critical that the relatives had voluntarily consented for the treatment of the patient in the hospital of the replying OP. It is denied that the replying OP charged Rs. 75,000/-. That only the amount of Rs. 14,000/- plus charges for the medical tests i.e. Rs. 2020/- were charged. There is no professional incompetency or negligence on the part of the replying OP.
16.

It is further replied that the life of the patient could not be saved, as she refused to respond to the treatment of the expert doctors, who did not fall short in their competency. The hospital and the doctors attending upon the patient were trained and experienced doctors, having post doctoral degree of DM and had been treating such cases.
17.

OP No. 4 was proceeded against exparte on 4.6.2008.
18.

OP No. 5 filed a separate reply. The preliminary objections vis-a-vis cause of action, the complainant is not a consumer and locus-standi were raised. On merits, the claim put forth by the complainants has been denied. It is replied that the present complaint has been filed to tarnish the clean image of the replying OP. That there is no element of any negligence in the services rendered by the replying OP. The patient had not paid any amount to the replying OP for tests/scan. It is denied that the complainant has paid Rs. 2,500/- for the tests. The replying OP always hand over the original reports to the patient or to his/her attendants. The complainants are not entitled for any compensation.
19.

OP No. 6 filed a separate reply. The preliminary objections vis-a-vis that the complainant is not a consumer, misjoinder and cause of action were raised. On merits, the claim put forth by the complainants has been denied. It is denied that Smt. Swaran Lata received any treatment at Paruthi Hospital,and if it is so, even then there was no error or omission on the part of the Paruthi Hospital in the performance of its professional duties. There is no professional error or omission on the prt of the OP No.3. The liability of the replying OP is limited, as per terms and conditions of the policy of insurance. The replying OP is not liable to pay any compensation.
20.

OP No. 7 filed a separate reply. The preliminary objections vis-a-vis maintainability and jurisdiction were raised. On merits, the claim put forth by the complainants has been denied. That as per terms and conditions of the insurance policy, the complaint is not maintainable against the replying OP. Moreso, no insurance policy was issued by the replying OP to cover the allegation of para No. 3 of the complaint to indemnify OP No. 5. However, as per policy, the maximum liability of the insurance company is Rs.10,00,000/- only.
21.

In order to prove the case, the complainants tendered in evidence affidavit of Rupan Matharu-complainant – Ex. C-1, prescription slip dated 19.3.2007 – Mark C-2, vital sign chart – Mark C-3, lab report dated 19.3.2007 – Mark C-4, consent letter dated 19.3.2007 – Mark C-5, receipt – Mark C-6, prescription slip dated 9.12.2007 – Mark C-7, scan report – Mark C-8, receipt dated 29.3.2007 – Mark C-9, certificate of Pruthi Hospital – Mark C-10, prescription slip of Pruthi Hospital – Mark C-11 (2 sheets), receipt dated 22.3.2007 – Mark C-12, receipts dated 22.3.207 – Mark C-13 (3 in nos.), receipts dated 21.3.2007 (10 in nos.) - Mark C-14, bill dated 22.3.2007 – Mark C-15, bill of Rs. 14,000/- - Mark C-16, prescription slip – Mark C-17, receipt dated 22.3.2007 – Mark C-18, photographs – Mark C-19, Mark C-20, affidavit of Satpal Malhotra – Ex. C-21 and closed the evidence.
22.

In rebuttal, the opposite parties No. 1 and 2 tendered in evidence affidavit of Dr. Sukhnandan Singh – Ex. OP-1, payment slip – Mark OP-2, prescription slip – Mark OP-3 (2 sheets), treatment record – Mark OP-4 (3 sheets), and consent – Mark OP-5. The OP No. 3 tendered in evidence affidavit of Dr. Raman Deep Singh – Ex. OP-A, certificate of BBC Heart Care – Mark OP-B, copy of Nurses Chart – Mark OP-C (4 sheets), treatment chart – Mark OP-D (2 sheets), copy of chart dated 21.3.2007 and 22.3.2007 – Mark OP-E & F, copy of consultation form – Mark OP-G (4 sheets), lab reports – Mark OP-H, progress note – Mark OP-J, ECG report – Mark OP-K, treatment chart – Mark OP-L, consent form – Mark OP-M, undertaking – Mark OP-N, and treatment chart – Mark OP-O. The OP No. 5 tendered in evidence affidavit of Dr. Raj Kumar – Ex. OP-5/I. The OP NO. 6 tendered in evidence affidavit of Dr. Ajay Garg – Ex. OP-6/I, and attested copy of insurance policy – Ex. OP-6/2. The OP No. 7 tendered in evidence affidavit of Parminder Singh – Ex. R-1, insurance policy – Ex. R-2, professional indemnity policy – Ex. R-3. The opposite parties closed their respective evidence.
23.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
24.

The point for consideration before this Court is whether the opposite parties were negligent in treating the patient ? The answer to this is in the negative.
25.

It has been held by the Hon'ble State Consumer Disputes Redressal Commission: Punjab: Chandigarh in case, Bimla Devi versus Doctor Davinder Kaur and Another, 1999(1) CPC 455 that where no expert is produced to prove the assertion of complainant-negligence, the mere affidavit of the complainant is not sufficient to prove the negligence. Likewise, the Hon'ble Supreme Court in re case Yacob Metheiv vs. State of Punjab and another, 2005(2) CPC 515 SC has held that a professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case,the skill which he did possess.


The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field, therefore, the standard is that of the reasonable average.
26.

It follows that a practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that particular art. To establish medical negligence, it must be shown, (1) that there is a usual and normal practice; (2) that the doctor has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken, had he been acted with ordinary care. Reliance placed on Dr. Sushil Tripathi and another vs. Ghanshyam Khatik, 2006(2) CPC 214 (NC).
27.

The Hon'ble Supreme Court in re-case Indian Medical Association vs. V.P. Shantha and others, 1995(6) SCC 651, wherein Bolam's case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Mathew vs. State of Punjab and another, 2005 SCC (Crl.) 1369, wherein it has been held that the negligence has to be established and cannot be presumed, merely because a medical procedure fails it cannot be stated that medical practitioner is guilty of negligence, unless it is proved that he did not act with sufficient care and skill and in absence of any proof of negligence on the part of doctor, the compensation cannot be granted.
28.

Now, it is clear that the negligence has to be established and cannot be presumed. Admittedly, in the present case, the complainants have not examined any doctor or expert to prove medical negligence on the part of the opposite parties. The self-serving affidavit of the complainants – Ex. C-1 and the affidavit of Satpal Malhotra – Ex. C-21 are not sufficient to prove the medical negligence on the part of the opposite parties. On the contrary, the opposite parties No. 1 and 2 have filed the affidavit of Dr. Sukhnandan Singh – Ex. OP-1, OP No. 3 has filed the affidavit of Dr. Raman Deep Singh – Ex. OP-A, the OP No. 5 has produced the affidavit of Dr. Raj Kumar – Ex. OP-5/I, the OP No. 6 has filed the affidavit of Dr. Ajay Garg – Ex. OP-6/I and OP No. 7 and filed the affidavit of Parminder Singh – Ex. R-1.
29.

The law is settled that deficiency against the doctor has to be proved by expert evidence. In this case, as no expert has been examined by the complainants to prove medical negligence on the part of the opposite parties, as such it is held that the opposite parties were not negligent of rendering deficient services to the complainants. Reliance placed on 2004(2) CLT 68, Ashok Kumar Choudhary vs. Shashi Bhushan Singh. The burden of proving the negligence by way of expert evidence or medical literature is always upon the complainant and in the absence of such evidence, the doctor cannot be held negligent, as the negligence has to be established and it cannot be presumed.
30.

As it has been held in para supra's that the complainants have failed to produce any evidence to prove medical negligence on the part of the opposite parties, therefore, they cannot be held liable for rendering either deficient services or medical negligence.
31.

As a result of the above discussion, it is held that there is no deficiency or medical negligence on the part of the opposite parties, therefore, the complaint is ordered to be dismissed. Keeping in view the facts and circumstances of the case, no order as to costs. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Parjinder Singh s/o Sh Santokh Singh resident of village Sakrala P.O.Mastipal Kot Tehsil Dasuya District Hoshiarpur.



Complainant


vs.



New India Assurance Company Ltd. Divisional Office, Bus stand road, Hoshiarpur through its Divisional Manager.


Opposite party



1.

The complainant namely Parjinder Singh has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the truck bearing registration no.PB07-M-5153 was duly insured with the OP-New India Assurance Company Ltd. The said vehicle met with an accident on Meerut-Mujafar Nagar road on 24.8.2008. The OP was informed accordingly. The OP through their surveyor got conducted the spot inspection , and thereafter,loss was assessed to the tune of more than Rs.1,50,000/-.
2.

It is the allegation of the complainant that he approached the OP to get the claim but on no consequences. The OP has sent letter dated 1.1.2009 that the claim file has been closed as “no claim” as the licence of the driver was fake. The complainant had examined the DL of the driver before appointing him as driver and had also taken the driving test and found him competent to drive the vehicle. The license of the driver was renewed and it is genuine one. The OP has closed the claim file without any valid reason. The complainant is entitled to the amount as assessed by the surveyor with interest, hence this complaint.
3.

OP filed the reply. Preliminary objections vis a vis maintainability, jurisdiction and estoppel were raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that the complainant is the owner of truck bearing registration no.PB07-M-5153. It is also admitted that the OP deputed the surveyor to conduct the spot survey. It is denied that the surveyor assessed the loss to the tune of Rs 1,50,000/-. The truck of the complainant was insured from 1.10.2007 to 30.9.2008 and the truck met with an accident on 25.8.2008 at Meerut and as per survey report, the insured vehicle suffered loss to the tune of Rs.66095/- subject to deposit of salvage, valuing approximately Rs.1500/-. It is further replied that at the time of accident, Joginder Singh son of Mehar Singh was the driver of the truck , whose original license was found fake, hence the claim was rightly repudiated as the same was no payable as per terms and conditions of the insurance policy.
4.

In order to prove the case, the complainant tendered in evidence his affidavit Ex.C-1 , verification of DL Ex. C-2, copy of DL of Joginder Singh Mark C-3, legal notice dated 19.1.2009 Mark C-4, repudiation letter Mark C-5 and copy of RC Mark C-6 and closed the evidence.
5.

In rebuttal, the opposite party tendered in evidence repudiation letter dated 1.1.2009 Ex.OP-1, insurance policy Ex.OP-2, survey report dated 29.9.2008 Ex. OP-3, DL of Joginder Singh Ex.OP-4, verification report of DL dated 10.12.2008 Ex. OP-5, D.L. verification report dated 12.12.2008 Ex.OP-6 and affidavit of Parvinder Singh Ex.OP-7 and closed the evidence.
6.

Vide order dated 11.8.2009, the opposite party was allowed to place on record the affidavit of Sh. Shambhu Parkash, investigator dated 17.7.2009 and photo copy of the memo regarding deposit of fee with DTO, Hazaribad dated 27.11.2008 as Annexure A1 and Annexure A2 respectively.
7.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
8.

The OP-NIAC has repudiated the claim qua letter dated 1.1.2009 Ex. OP-1 on the ground “ file closed as no claim as basic licence issued by DTO Hajari Bagh is found fake as per investigation report dated 12.12.2008.
9.

The other facts are admitted.
10.

Now the only point which calls decision from this Court is whether at the time of accident , the driver was holding and possessing a valid DL.?

11.

The complainant has produced on record the verification report of DTO, Hoshiarpur , Ex.C-2 and its close scrutiny makes it clear that Sh Joginder Singh son of Mehar Singh VPO Pandori Atwal District Hoshiarpur was having a valid DL to drive LMV.MMV and HMV. The said license was valid from 27.4.2006 to 26.4.2009. The accident took place on 24.8.2008.
12.

The opposite party has produced on record the affidavit of Shambhu Prakash as Annexure A1, wherein he has deposed that he verified the DL No. 9771/90/Prof., Hazaribagh physically from the register of Driving Licence at DTO, Hazaribagh and found that in the year 1990-91, the last Driving Licence issued from DTO, Hazaribagh is 6559/90-91/Prof. The said affidavit filed by Shambhu Prakash – Annexure A1 loses its weight and has been rebutted by the report of DTO, Hazaribag dated 12.12.2008 – Ex. OP-6, wherein DL No. 9771/90/Prof., issued in the name of Youginder Singh has been verified. 12-A) It is proved that qua Ex. OP-6, the verification is with regard to DL No. 9771/90/Prof, it means that driving licence No. DL-6559/90-91/Prof. issued from DTO, Hazaribagh is not the last driving licence.

13.

The OP has raised the plea in the reply that at the time of accident , Sh. Joginder Singh son of Mehar Singh was the driver of the truck bearing registration no.PB07-M-5153, whose original license issued by Licensing Authority, Hajari Bagh was found fake, as such, the claim was rightly repudiated. The claim was not payable as per terms and conditions of the policy. Ld. Counsel for the OP made a reference to the reports Ex. R-5, R-6. it was argued that DTO, Hajari Bagh qua memo no. 844 dated 12.12.2008 had reported that license no. 9771/90/ in the name of Yonginder Singh had not been issued . Admittedly, the vehicle in question was being driven by Joginder Singh son of Mehar Singh at the time of accident, therefore, the OP cannot draw any advantage from the report Ex. OP-6 as it relates to Yonginder Singh.


The said report did not pertain to Joginder Singh son of Mehar Singh - the driver who was driving the vehicle at the time of accident. The verification report of D l of Sh Joginder Singh qua Ex.R-5 by DTO, Hoshiarpur makes it clear that said Joginder Singh was the holder of valid and effective DL to drive LMV,MMV and HMV valid from 27.4.2006 to 26.4.2009,therefore, it cannot be said that the original license of Joginder Singh was fake, consequently, it is held that the driver of the vehicle- Sh Joginder Singh son of Mehar Singh was holding a valid and effective DL at the time of accident, thus, the OP was not justified in repudiating the claim,which amounts to deficiency in service.
14.

No other point was argued or urged.
15.

Ld. Counsel for the complainant very fairly and squarely conceded that the compensation be awarded as per survey report , Ex.OP-3. The surveyor has assessed the loss to the tune of Rs.66095/- minus salvage value of Rs.1500/-.
16.

As a result of the above discussion, the complaint is accepted and the OP is directed to pay the claim amount of Rs.66095/- to the complainant subject to deposit of salvage by him, with interest @ 9% per annum from the date of filing the complaint i.e. 27.2.2009 till realization alongwith litigation expenses of Rs.1000/-, within one month from the receipt of copy of the order. It is made clear that in case the complainant does not deposit the salvage , the OP is at liberty to deduct the salvage value of Rs.1500/- from 66095/-, as assessed by the surveyor Copy of the order be sent to the parties free of cost. File be consigned to the record.

Rakesh Kumar Sharma, aged about 44 years, son of Gurdass Sharma, resident of B-12/274, Mohalla Jagatpura, Hoshiarpur.


......... Complainant

versus


1.

New India Assurance Company Ltd., Branch Office Nawanshahar, above UCO Bank, Nawanshahar, through its Branch Manager.
2.

The New India Assurance Company Ltd., Office near bus stand road, Hoshiarpur, through its Manager.
3.

The New India Assurance Company Ltd., Head Office, Building 87, Mahatma Gandhi Road, Fort, Mumbai-400001.


............. Opposite Parties





1.

The complainant namely Rakesh Kumar Sharma has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Stated briefly, the facts of the case are that the vehicle bearing registration No. PB-07-R-1585 was insured with OP No.1 for the period from 2.5.2007 to 1.5.2008. It is the case of the complainant that on 19.11.2007, the said vehicle was on way from Katcha Toba to Jagatpur (Hoshiarpur). That the driver of the vehicle to save a child applied brakes, with the result, it fell down in the drain/Nala and got badly damaged. The opposite parties were informed accordingly. The insurance company appointed the surveyor to visit the spot.
2.

It is further the case of the complainant that the vehicle was brought to Joginder Motors,the authorized Maruti Service Station, Tanda Bye Pass Road, Hoshiarpur, for repairs. That Sh. Pankaj Sood, surveyor assessed the damage/loss to the vehicle. It is further the case of the complainant that on the advice of OP No. 1, he got the vehicle repaired from Joginder Motors, and thereafter, submitted the claim alongwith requisite documents.
3.

It is further the case of the complainant that on the unlucky day of 27.11.2007, another accident of the vehicle took place at Hargarh near Dagana Road, Hoshiarpur. The complainant informed the opposite parties with regard to the second accident. The opposite parties appointed the surveyor to visit the spot. The complainant got repaired the vehicle from Joginder Motors, Hoshiarpur on the instructions of the insurance company and thereafter, submitted the claim alongwith necessary documents.
4.

It is the allegation of the complainant that he was surprised to receive a letter dated 10.9.2008 from OP No. 1 to the effect that the driver was holding Scooter/Car licence and LPG Kit was fitted in the vehicle at the time of accident. That the OP No. 1 – New India Assurance Company Ltd., Branch Office, Nawanshahar with malafide and ulterior motive had closed the claim files of the complainant, hence this complaint.
5.

The opposite parties filed the reply. The preliminary objections vis-a-vis maintainability, non-joinder of necessary parties, jurisdiction and estoppel were raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that vehicle bearing registration No. PB-07-R-1585 was insured with the replying opposite parties from 2.5.2007 to 1.5.2008. It is denied that the complainant is the consumer of the replying opposite parties. It is replied that Sh. Pankaj Sood, surveyor assessed the loss as per his report dated 11.12.2007 to the tune of Rs. 14,029/-, subject to deposit of salvage, bills and cash memos. It is admitted that the insured vehicle met with an accident on 27.11.2007 with tractor trolley and intimation with regard to it was given. Sh. Jyoti Parkash, was deputed to assess the loss and as per his report dated 10.12.2007, the vehicle suffered damage to he tune of Rs. 7,777.33, subject to deposit of salvage, bills and cash memos.


It is further replied that the claim of the complainant was repudiated by the answering opposite parties vide letter dated 10.9.2008, as the driver of the vehicle was not having valid driving licence. The insured vehicle is a commercial vehicle and LTV licence is required to drive the same, whereas the driver was having DL to drive car and scooter only. The insured vehicle was also being run on LPG Kit and no extra premium was paid to cover the risk of LPG Kit, thus the claim was not payable. The claim was repudiated vide letter dated 10.9.2008 and its intimation was given to the complainant.
6.

In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-10, registration certificate – Mark C-11, insurance cover note – Mark C-12, quotation dated 21.11.2007 – Mark C-13, bill Mark C-14,bill of Rs. 3,929/- Mark C-15, and bill dated 18.12.07 – Mark C-16. The complainant also examined Sh. Mohinder Singh, ADM, New India Assurance Company as CW-1 and closed the evidence.
7.

In rebuttal, the opposite parties tendered in evidence copy of insurance policy – Ex. OP-1, repudiation letter – Ex. OP-2, RC – Ex. OP-3, survey report of Pankaj Sood – Ex. OP-4, survey report of Jyoti Parkash – Ex. OP-5, copy of DL of Avtar Singh – Mark OP-6, affidavit of Parvinder Singh – Ex. OP-7 and closed the evidence on behalf of the opposite parties.
8.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
9.

The case of the complainant is that the vehicle bearing registration No. PB-07-R-1585 was insured with OP No. 1 – New India Assurance Company Ltd., Nawanshahr for the period from 2.5.2007 to 1.5.2008. The said vehicle was on way from Katcha Toba to Jagatpur (Hoshiarpur) on 19.11.2007. That the driver of the vehicle to save a child applied brakes, with the result the vehicle fell down in the drain/nala and got badly damaged. It is further the case of the complainant that on 27.11.2007, another accident of the vehicle took place at Hargarh near Dagana Road, Hoshiarpur. The complainant informed the opposite parties with regard to the second accident and lodged the claim with the insurance company.


It is the grouse of the complainant that he was surprised to receive repudiation letter dated 10.9.2008 from OP No. 1 to the effect that the driver was holding Scooter/Car licence and LPG Kit was fitted in the vehicle at the time of accident. The opposite parties-insurance company admitted that the vehicle No. PB-07-R-1585 was insured from 2.5.2007 to 1.5.2008. It is also admitted that the said vehicle met with an accident on 27.11.2007 with tractor trolley. The claim of the complainant was repudiated as the driver of the vehicle was not having a valid driving licence. The insured vehicle is a commercial vehicle and LTV licence is required to drive the same, whereas, the driver was having DL to drive car and scooter only.
10.

Now, the only point which calls decision from this Court is whether the driver of the vehicle No. PB-07-R-1585 was holding a valid driving licence to drive the said vehicle on the date of accident. The answer to this is in the negative.
11.

The repudiation letter is Ex. C-7/Ex. OP-2 on the record. The claim has been repudiated on the ground that the driver of the ill-fated vehicle No. PB-07-R-1585 namely Avtar Singh was not holding and possessing a valid driving licence on the date of accident.
12.

The opposite parties have produced on record the driving licence of the driver, Sh. Avtar Singh, which is valid upto 9.1.2025 to drive Scooter/Car only.
13.

The copy of registration certificate of vehicle No. PB07-R-1585 is Ex. C-3/Mark C-11/Ex. OP-3 on the record, wherein under the Head “Vehicle Description”, “MARUTI OMNI TAXI” has been recorded. Likewise in the insurance policy – Ex. OP-1, it has been stated that the vehicle No. PB-07-R-1585 is a “Passenger Carrying Commercial Vehicle”.
14.

Now, it is established on record that the vehicle has been registered qua Ex. C-3/Mark C-11/Ex. OP-3 as “Maruti Omni Taxi”. The fact that the vehicle is a taxi is supported by the recitals contained in the insurance policy – Ex.OP-1, wherein it has been stated that policy No. 360801/31/07/01/00000594 – Ex. OP-1 relates to “Passengers Carrying Commercial Vehicle”. Now, it is proved on record that the vehicle in question is being used as Taxi for carrying passengers, thus the vehicle is being used as “commercial vehicle”.
15.

The law is settled that if a transport vehicle is being driven by a driver holding driving licence for driving scooter/car only, without there being any endorsement for driving transport vehicle, the insurance company cannot be ordered to pay compensation. Reliance placed on Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., 2000 ACJ 319 (SC) and 2008 ACJ 627(SC), New India Assurance Co. Ltd. Versus Prabhu Lal.
16.

Now, it is clear that if a vehicle is Light Motor Vehicle, but falls under the category of Transport Vehicle, the driving licence has to be duly endorsed under Section 3 of the Motor Vehicles Act. If it is not done, the person holding driving licence to ply Light Motor Vehicle cannot ply transport vehicle. Undisputably, licence of Avtar Singh did not have such an endorsement, therefore, the Insurance Company is not liable to pay any compensation to the complainant. Reliance placed on 2009(1)CLT 454,National Insurance Company Limited versus Sukhbir Singh and another.
17.

The distinction between a 'light motor vehicle' and a 'transport vehicle' is, therefore, evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct licence is required to be obtained. Reliance placed on Oriental Insurance Co. Ltd. v. Angad Kol and others, 2009 ACJ 1411.
18.

Now, it is proved on record that the driving licence of Sh. Avtar Singh, the driver of the ill-fated vehicle was valid for driving Scooter/Car only and it did not carry the endorsement of “LTV”, therefore, it is held that Sh. Avtar Singh, the driver was not possessing a valid and effective driving licence on the day, the vehicle No. PB-07-R-1585 met with an accident.

9.

As a result of the above discussion, it is held that the driver of the ill-fated vehicle on the dates of accident was not holding a valid driving licence to drive the vehicle No. PB-07-R-1585, therefore, the opposite parties-insurance company had a legal right to repudiate the claim, as per terms and conditions of the insurance policy – Ex. OP-1. It is further held that the complainant has failed to prove any deficiency on the part of the opposite party, with the result, the complaint is dismissed. However, no order as to costs. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Makhan Lal S/o Om Parkash R/o B-18/174, Ibrahim Basti, Nawanshahr Tehsil and Distt. Nawanshahr.

…Complainant.

Versus

The New India Assurance Company Ltd. Through its Branch Manager, above UCO Bank, Nawanshahr.

…Respondents


Makhan Lal (hereinafter called as complainant), has filed this complaint against the The New India Assurance Company Ltd. Through its Branch Manager, above UCO Bank, Nawanshahr (hereinafter called as Op respectively) for issuance of a direction to the Op to pay the insurance claim of Rs.1 Lac along with 35,000/- as compensation and Rs.7,500/- as litigation expenses.

2. The brief admitted facts of this complaint are that the complainant is running the business of sound shop under the name and style of “Sahib Sound Servie” at Nawanshahr. He had purchased the sound equipment with the loan obtained from the Punjab National Bank and got it insured from the Op on 17/10/2007. The insurance was valid till 16/10/2008. On the night of 08/09-01-2008 a theft was alleged to have taken place in the shop of the complainant regarding which Fir No.7 dated 09/01/2009 U/s 457/380 IPC had been got registered by Sumit Kumar neighbor of the complainant. An intimation was given by the complainant to the OP but no action was taken by it. Rather, the claim of the complainant had been repudiated by Op vide letter dated 13/02/2009. The Op was stated to be deficient in service. Hence this complainant.

3. In the written version filed by the Op, the insurance obtained by the complainant, as well as giving of intimation of the alleged theft was not disputed. It was contended that after information of the alleged theft, the Op had deputed an independent government approved surveyor i.e. Arun Kumar & Company who visited the shop of the complainant and submitted a detailed report dated 04/02/2008, according to which the net loss suffered by the complainant was given as Rs.87,840/-. After applying the average clause as per terms and conditions of the insurance policy, the sum payable to the complainant was assessed as Rs.70,272/-. The complainant was alleged to be not entitled to this amount also, as there was no evidence to prove forcibly entry to the shop of the complainant.


The complainant according to Op was covered under the Shopkeepers Insurance Policy and Section 2 of the Policy clearly states that the policy Covered “Burglary and House Breaking” loss or damage to property by theft involving entry into or the exit from the premises forcible and violence or thereof, to the insured or any employee of the insured or member or the insured family. In this case intimation was given by the complainant at late stage and the visit of the investigator did not show any evidence of forcible entry into the shop of the complainant. Therefore, the claim of the complainant was rightly repudiated. A prayer for dismissal of the complaint was accordingly made.

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

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

6. From the written version filed by the Ops, it is abundantly clear that the fact about the theft in the shop of the complainant, as well as the loss of his sound equipment has not been disputed. The only contention raised by the Op is that forcible entry having not been established, the complainant is not entitled to the claim, as per terms and conditions of the policy. We find no substance in the contention of the Op because it is not disputed that theft had taken place in the shop of the complainant on the night intervening 8/9-01-2008. The investigator appointed by the Op had concluded that theft had taken place on the night of 08/09-01-2008. It is also in the report lodged by the complainant with the Op that the lock of his shop found broken. The in gradients of theft given in Section 379 of the Indian Penal Code are as under:-

(i) That the subject matter of theft is movable property.

(ii) That it was in possession of any person.

(iii) That the accused moved it.

(iv) That he did so without the consent of the person in possession intending to take it out of his possession.

(v) That he did so dishonestly.

7. It is not the case of the Op that the goods from the shop had been removed with consent of the complainant. Since the theft had taken place in the night, it was unjust on the part of the Op or the concerned officials of the Op to opine that forcibly entry in the shop was not established on the basis of papers available on the claim file. Thus, the repudiation of the claim of the complainant amounts to deficiency in service on the part of the Op towards the complainant.

8. As a consequence of the foregoing reasons, we are constrained to allow this complaint with a direction to the Op to sanction and disburse the claim of Rs.77,272/- as per report of Anil Kumar and company, copy of which is Ex. R-1.

9. The Op shall also pay a sum of Rs.5,000/- to the complainant towards compensation for mental as well as physical harassment.

10. The compliance of this order shall be made within one month from the receipt of copy of this order.

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

12. File be consigned to the record room.

Puran Devi Jain aged 73 years widow of Sh.Chain Lal Jain C/o Pardeep Traders, Kesar Ganj Mandi, Ludhiana & resident of H.No.3261, Street No.5, Gurdev Nagar, Ludhiana.



…..Complainant.

Versus



1- The New India Assurance Company Limited, above UCO Bank, Banga Road, Nawan Shahar, through its Branch Manager.

2- M/s Alankit Health Care Limited, Alankit House, 2E/21, Jhandewalan Extension, New Delhi, through its Director/Manager.

…..Opposite parties.




O R D E R


1- Complainant in this complaint u/s 12 of the Consumer Protection Act, 1986, alleging deficiency in service on part of opposite party, has sought compensation of Rs.50,000/-, for mental agony and harassment. Case of the complainant is that her son Sh. Sushil Kumar Jain for self and the complainant had been obtaining hospitalization and domiciliary benefit policies since 7 years from opposite party no.1. Such polices were taken continuously without any break. When previous policy w.e.f. 9.4.2005 to 8.4.2006 was near expiration, complainant requested opposite party no.1 for issuance of next policy, who agreed for the same, to continue the policy w.e.f 9.4.2006 to 8.4.2007.


Premium amount of Rs.11,386/- by way of cheque dated 8.4.2006 was paid to opposite party no.1 and then several requests were made to supply the policy. But opposite party simply sent a premium calculation worksheet, insuring complainant for Rs.1,50,000/- + bonus of Rs.50,000/-, mentioning commencement of policy on 9.4.2006 to midnight of 8.4.2007. It also acknowledges receipt of the premium and was promised issuance of cover note shortly.


Thereafter, complainant suddenly suffered breathlessness and fever, due to which on 22.1.2006, was admitted in CMC & Hospital, Ludhiana. Was diagnosed having AC Exacerbation of COPD, Eventration of Diaphram, Type-II DM and hypertension. Subsequently, discharged on 26.12.2006. Spent Rs.5 lacs on treatment. Claim with necessary documents, bills, vouchers was raised with opposite party. But opposite party vide letter dated 8.2.2008, intimated complainant that there was a gap in renewal of the policy and policy commenced from 7.7.2006. Hence, repudiated the same. This repudiation stands assailed to be wrong, null, void and illegal. Because claimed that for renewal of previous policy, cheque dated 8.4.2006 was paid, covering risk from 9.4.2006 to 8.4.2007. There was no gap or break and false plea has been taken by opposite party, which amounts to deficiency in service.

2- Opposite party no.1 contested the complainant, on ground that this Fora has no jurisdiction, there is no deficiency in service on their part. It is averred that immediately on receipt of claim from the complainant, it was duly entertained, registered and referred to M/s Alankit Health Care Limited, who after adopting proper procedure for settlement of the claim, repudiated it vide letter dated 8.2.2008. Because claim of the complainant was not admissible under exclusion clause 4.1 of the policy. The disease for which complainant took treatment, was pre existing when the cover incepted for the first time. So, accused complainant of suppressing material facts. Because her earlier policy had already lapsed.


Complainant made requests on 4.7.2006 for renewal of the policy. On request of the complainant, premium calculation worksheet on 6.7.2006 was sent. Thereafter, son of the complainant issued cheque of Rs.11,386/- to employee of opposite party no.1, which was back dated. The premium due was from 7.7.2006 to 6.7.2007. The cheque was issued on 6.7.2006, but son of the complainant intentionally put date 8.4.2006 on the cheque with ulterior motive, to take unfair and illegal advantage of the date of the cheque. So, for such reasons, allegations of the complainant have been denied that policy was renewed in continuation and on expiry of previous insurance policy. It was a new policy and she suppressed pre-existing disease while purchasing the policy. Repudiation is valid and legal.

3- Opposite party no.2 did not contest the complaint and as such, is being proceeded exparte.

4- Both parties in support of their claims adduced evidence and stood heard through their respective counsels.

5- Sole question which in our view, shall settle the dispute, is whether policy under which claim was lodged by the complainant, was in continuation of her previous policy or it was taken after gap of three months, on expiry of previous policy, so taken to be a fresh one. Second point is whether repudiation of the claim was justified, on ground that complainant suppressed pre-existing disease when purchased the policy.

6- It is established on the record that first hospitalization and domiciliary policy of the complainant commenced on 9.4.2004 to 8.4.2005, as apparent from policy Ex.C1. On expiry of this policy Ex.C1, complainant got it renewed vide policy Ex.C2 valid from 9.4.2005 to 8.4.2006. Then comes the disputed policy Ex.R3 valid from 7.7.2006 to 8.7.2007. Grouse of the complainant against his policy Ex.R3 is that when he on expiry of previous policy Ex.C2 on 8.4.2006, applied for renewal and issuance of fresh policy by paying cheque of Rs.11,386/- dated 8.4.2006(Ex.C3) to opposite party, but they deliberately and intentionally failed to provide policy and subsequently issued policy effective from 7.7.2006, instead of 9.4.2006 to 8.4.2007.

7- It was in such scenario argued on behalf of opposite party that complainant approached in July, 2006, for the policy, but committed fraud by paying premium through cheque dated 8.4.2006. As such, policy was taken in July, commencing from 7.7.2006. Whereas, on behalf of complainant, contrary contended that had applied immediately for renewal of the policy on expiry of earlier policy Ex.C2 on 8.4.2006 and had requested for renewal of the policy w.e.f. 9.4.2006, by paying cheque dated 8.4.2006 Ex.C3.

8- If material brought on the record is looked into, we have no hesitation to agree with averments and contention of the complainant. Because premium calculation worksheet for individual mediclaim Ex.C4, though contains reference date 4.7.2006, but it mentions policy period from 9.4.2006 to midnight 8.4.2007. It provides hint to us that complainant actually had prayed for issuance of policy w.e.f. 9.4.2006. But opposite party delayed the matter. Under this calculation worksheet, total family discount of Rs.1148/- was given against the insurance premium of Rs.11,480/-. Then premium of Rs.11386/- was demanded from the complainant.

9- Now question is qua affect of giving family discount of Rs.1148/- in the calculation sheet Ex.C4 dated 4.7.2006 and mentioning policy period from 9.4.2006 to midnight 8.4.2007.

10- Such like matter came for consideration before the Hon’ble National Commission in Oriental Insurance Company Vs Parkash Devi II(2008) CPJ-267(NC). In that case also, family discount in premium was given. Insurer acknowledged renewal of policy without break having condoned delay. In para no.7 of the judgment, the Hon’ble National Commission observed as under:-

“It is a very clear-cut condition that family discount in premium will be given, provided there is a renewal of insurance policy without break. In this case, family discount in premium has been given because the insurance company acknowledged the fact of renewal of the insurance policy without break, i.e. having condoned the delay. Moreover, similar family discount was also given when the policy was renewed during the previous year but when the policy was taken for the first time, such discount was not given”.



11- So, it is apparent that family discount in premium is given, in case of renewal of policy without break. So, opposite party in the instant case, had renewed the policy without break, when provided family discount to the complainant in that policy. Subsequently, issued policy effective from 7.7.2006 to 6.7.2007(Ex.R3). In fact, this policy Ex.R3 was in continuation of previous policy Ex.C2, which lapsed on 8.4.2006. It ought to have been renewed by opposite party on 9.4.2006, but mentioned to have issued on 7.7.2006. Despite the fact that policy period was mentioned as commencing from 9.4.2006 to 8.4.2007 in Ex.C4 calculation sheet.

12- In these circumstances, we take it proved to the hilt that the policy Ex.R3, under which claim was lodged by the complainant, was in continuation of her previous policy Ex.C2.

13- Repudiation of the claim is based upon letter Ex.C19 of M/s Alankit Health Care Limited, 3rd Party Administrator of the opposite party, on the ground that the policy incepted for the first time and the disease was covered under the exclusion clause 4.1 of the policy. But on face of the letter, repudiation was wrong. Because this policy Ex.R3 had not commenced for the first time. Rather, it was in continuation of previous policy Ex.C2. So, arises no question that disease was pre-existing, so as to attract condition no.4.1 of the policy.

14- Even otherwise, there is no proof that disease, as concluded pre-exiting, was so. Medical record of treatment of the complainant such as Ex.C5 shows that complainant was not suffering since long with the ailment for which, took treatment. From where, opposite party concluded her ailment to be pre- existing, there is no proof on the record.

15- In view of aforesaid aspects, it is apparent that opposite party wrongly repudiated the claim, which on their part, would amount to deficiency in services towards its consumer. Hence, complaint deserves to be allowed.

16- Complainant has placed on the record, invoices Ex.C6 of CMC & Hospital, Ludhiana, for paying Rs.2,52,409/-/- qua treatment. The policy Ex.R3 taken by her was for Rs.1,50,000/- with Rs.52,500/- amount of bonus. Though complainant in complaint, claimed bonus of Rs.50,000/- only.

17- In view of these aspects, complaint allowed and opposite party no.1 ordered to pay Rs.1,50,000/- + Rs.50,000/- bonus to the complainant, alongwith compensation of Rs.5000/-and litigation cost Rs.2000/-, within 45 days of receipt of copy of the order, failing which, shall be liable to the amount with 9% interest p.a. from the date of complaint till payment. Copy of order be provided to the parties free of charge. File be completed and consigned to record room.

Gullapudi Ranga Narayana Rao, s/o.Ramakrishna, age: 40

years, occu: Owner of Toyota Qualis bearing No.AP-20-V-

1358, r/o.Bandarugudem village of Manuguru mandal,

Khammam District.

…Complainant

and



1. The New India Assurance Company Ltd., rep. by its Regional Manager, Regional office, Pvan paradise, Dwaraka naar, Visakhapatnam-530016.



2. The New India Assurance Company Ltd., rep. by its

Senior Branch Manager, I floor, Shukur complex,

R.R.Appa Rao street, Vijayawada-520001.



…Opposite parties.





O R D ER






1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The brief facts of the complaint are that the complainant is the owner of Toyota Qualis bearing No.AP-20-V-1358 and got insured the said vehicle with opposite party No.1 on 19-4-2004 till 18-4-2005 vide policy No.620702/31/04/00027 and paid necessary premiums. Unfortunately the said vehicle met with an accident on 8-7-2004 at Tippanapalli village of Chandrugonda mandal, Khammam District, vehicle was totally damaged, but the driver and the passengers, who are in the vehicle, were escaped and they are safe, but their vehicle was totally damaged.


Immediately message was sent to the opposite party, intimating the accident, to which the opposite parties deputed their official surveyor, who has taken necessary photograph of the scene of offence and estimated the damage, after that the vehicle was taken to Radha Madhav Automobiles, Vijayawada, where the necessary repairs have been effected and the said automobiles charged an amount of Rs.2,65,446/- towards the charges for repairs and also spare parts.


The complainant sent the necessary bills in original to the opposite parties by registered post requesting the opposite parties to pay him the said damages. Even after repeated requests, the request of the complainant was not conceded, hence, the complainant got issued a legal notice dt.7-3-2005 to which the opposite party sent reply notice on 12-4-2005, in which the complainant was asked to receive Rs.1,12,500/- by signing the claim loss voucher and then only they will issue a cheque for the said amount.


But the complainant insisted the opposite parties that he is entitled for Rs.2,65,446/- to which he incurred the expenditure, but the said amount was restricted to Rs.1,12,500/-. Therefore, the complainant refused to receive the said claim voucher, to preserve his right to agitate the same before this forum and declined to sign the claim loss voucher. Hence, the complaint to direct opposite parties to pay an amount of Rs.2,65,446/- with interest at 24% P.A. and Rs.90,000/- towards compensation for mental agony and suffering.

2. The complainant filed affidavit, reiterating the contents of the complaint.

3. On receipt of the notice, the opposite parties No.1 and 2 filed counter. In the counter, it is not disputed regarding the insuring of the vehicle with opposite party No.1 and also issuing of policy and also not disputed regarding the occurrence of the accident and damage to the vehicle.

4. The opposite parties further submitted that after due assessment of loss, they sent voucher for Rs.1,12,500/- to the complainant, but the same was refused and demanding Rs.2,65,446/- towards damages including repair charges of the engine. As per the report of the surveyor and also letter of complainant, it is clear that at the time of accident, the engine of the vehicle was not damaged, that after placement of the vehicle from the place of accident to Radha Madhav Auto Mobiles for repairs, it was observed that 1, 2 and 3 connecting rods are bend and cylinder block No.1 bore is slightly damaged as its bottom end pertaining to the engine of the vehicle. The complainant did not submit the estimation of the bill of engine repair at the time of the furnishing the estimation of bill of damage of the vehicle. That after submitting the estimation of bill of repairs, the complainant further submitted the supplementary estimates about the repair of engine of vehicle. As per the condition No.4 of private car policy, the extension further damages (supplementary estimation) is entirely at the insured own risk, in view of the above said condition, the opposite parties are not liable to pay damages.


The opposite parties referred the above said matter for the second opinion to simax surveyors, Chennai, who opined that at the time of accident, the engine of the vehicle was not damaged, if the engine was damaged, the engine cannot run for 150 K.Ms from the place of accident to Radha Madhav Automobiles, the vehicle was moved on its own power to the lift post, because the engine was in good condition. After shifting of the vehicle, the engine started giving trouble. I the light of the above observations of simax surveyors, the opposite parties are not liable and prayed to dismiss the complaint.

5. On behalf of the complainant, Exs.A.1 t A.5 are marked.

6. On behalf of the opposite parties, R.Ws.1 and 2 are examined. R.W.1 is surveyor and loss assessor and R.W.2 is the Senior Assistant of opposite parties and Exs.B.1 to B.6 are marked. (Exs.B.4 to B.6 are marked subject to objection).

7. Heard both sides. Perused the oral and documentary evidence. Upon which the point that arose for consideration is,

1. Whether the engine of the vehicle caused damaged in

the accident?

2. Whether the complainant is entitled to the amount

claimed in the complaint?

3. To what relief?

Point No.1to 3:



8. The case of the complainant is that the vehicle insured with opposite party, met with an accident on 8-7-2004 at Tippanapalli village of Chandrugonda mandal and in the said accident, the vehicle was totally damaged. When the accident was reported to the opposite parties, they sent their spot surveyor who estimated the damage of the vehicle, he estimated the damage at Rs.1,12,500/-. After that the vehicle was taken to Radha Madhav Automobiles, Vijayawada, where the necessary repairs have been effected and the said automobiles charged an amount of Rs.2,65,446/- towards the charges for repairs and also spare parts and submitted the original bills to opposite parties.


But the opposite parties restricted the damage to Rs.1,12,500/- and sent a letter to receive the said amount by signing the claim loss voucher and then only they would issue a cheuqe for Rs.1,12,500/-, though the complainant insisted the opposite parties that he is entitled for Rs.2,65,446/-, but the claim of complainant is restricted to Rs.1,12,500/-, he refused to receive and filed the present complaint.

9. It is an undisputed fact that the complainant is the owner of the quails vehicle and had taken policy with the opposite parties, for the period from 19-4-2004 to 18-4-2005. It is an undisputed fact that the said vehicle met with an accident on 8-7-2004. As on the date of accident, the policy was in force. It is also not an undisputed fact that immediately after the accident, the opposite party deputed the surveyor, who estimated the damage caused to the vehicle at Rs.1,12,500/-, but the complainant refused to receive the said amount, demanded to pay Rs.2,65,446/- including the repair charges of the engine. The dispute arose regarding the damage caused to the engine of the vehicle.


So far as the damage of the body of the vehicle is concerned, the opposite parties have offered an amount of Rs.1,12,500/-, but the complainant refused to receive the said amount and intimated the same to the opposite parties by way of Ex.A.3, Legal notice, though the amount offered by the opposite parties is confined to the repairs caused to the body only, but not to the engine. On this aspect of the case, the complainant refers to Ex.A.2, bill issued, dt.14-9-2004 issued by Radha Madhav Automobiles, Vijayawada, estimating the amount of Rs.2,65,446/-, towards repair charges and also refers to Ex.A.3, legal notice got issued by the complainant to the opposite party demanding to pay the amount covered under Ex.A.2, spent towards repair charges. Ex.A.4 is the reply notice.

10. On the other hand the case of the opposite parties is that on the intimation and occurrence of the accident, they appointed a surveyor, R.W.1, to estimate the damage to the body of the vehicle and accordingly offered an amount of Rs.1,12,500/- and sent a claim loss voucher, but the complainant refused to receive the same, demanding Rs.2,65,446/-. It is the case of the opposite parties that within 24 hours of the accident, the vehicle was brought to the garage for repair. In fact no accident was caused to the engine of the vehicle. The alleged damage to the engine, it said to have caused after placing of the vehicle from the place of the accident to Radha Madhav Automobiles for repairs. It is the reason that the complainant did not submit the estimation of the bill of the engine at the time of submitting the original bill for estimation of damage. Therefore, supplementary estimation about the repair of the engine is violated as per the condition No.4 of the private car policy.


The opposite parties got examined the surveyor who conducted survey on 17-7-2004. He has taken other three surveyors, and checked the accident vehicle and asked the in-charge of the garage, Durgaprasad, to bring out the vehicle from the cellar to the open place for taking photographs and observed that the vehicle of the engine was in working condition and none of the vehicle repairers expressed any doubt on the functioning of the engine of the vehicle and also the estimation submitted by the complainant did not speak any damages to the engine.

11. During the course of cross-examination, R.W.1 admitted that the engine of the vehicle was dismantled in his presence and the said vehicle was brought to the garage within 24 hours of the accident. He further admitted that he was present at the time when the dismantle took place and the said dismantling was ordered by the mechanics since there is some damage to the inner parts of the engine. He further admits that he was present throughout the dismantle process and also admits that he found damage in the internal parts of the engine of the vehicle and according to him, the major parts i.e., connecting rods, engine block, and other bearing etc., were damaged.


These parts are to be replaced and also further admits that once major parts of the engine caused damage minor parts in around of the major parts also need to be replaced and he estimated the loss caused to the engine more than at Rs.1,00,000/-. Apart from R.W.1, the opposite parties got examined R.W.2, who stated that he does not have any personal knowledge regarding the accident and also admits that he did not visit the place of accident and did not verify where the damage caused to the vehicle. On the basis of record, he is filing his chief-affidavit. Exs.B.4 to B.6 are marked subject to objection.

12. As seen from the above record, the opposite parties have admitted all the aspects of the case of the complainant except the damage caused to the engine of the vehicle. The opposite parties place reliance to the evidence of R.W.1, who is the official surveyor, estimated the loss to the vehicle caused in the accident, but his estimation is confined to the loss caused to the body of the vehicle only. But in his evidence, he has clearly admitted that the dismantle of the vehicle took place in his presence and he further admitted that before reopening he could not visualize the damage caused inside the engine of the vehicle and that will be detected only by the mechanics, once opened the engine.


In this case dismantle of the engine of the vehicle has been ordered by the mechanics, as there was some damage to the internal parts of the engine. In his cross-examination, R.W.1 has clearly admitted that there are four major parts of the engine said to have been damaged and he has mentioned the names of the major parts which need to be replaced and he also estimated the loss caused for replacement is to be Rs.2,65,446/-.


The opposite parties cannot disown their own evidence tendered by their own witness. Ex.A.2 is the cash receipt issued by Radha Madhav Automobiles, which is a relevant and important piece of document. On the basis of this document, a positive inference can be drawn as regards the damage caused to the vehicle including the engine. This document is out come of investigation made by mechanics of the said garage. Therefore, this document can safely believed to estimate the actual damage caused to the vehicle including the engine. According to this document an amount of Rs.2,65,446/- is said to have paid by the complainant towards repair charges of the vehicle. This document cannot be brushed aside easily without valid substance. In view of the above facts and circumstances of the case, the complaint is fit to be allowed.

13. In the result, the complaint is allowed, directing the opposite parties to pay an amount of Rs.2,65,446/- (Rupees two lakhs, sixty five thousand, four hundred and forty six only) together with interest at 9% P.A. from the date of filing of complaint, till the date of deposit. They are further directed to pay an amount of Rs.2,000/- (Rupees two thousand only) towards costs of the litigation. There is no order as to the compensation.