BEFORE THE DISTRICT CONSUMER FORUM AT ADILABAD
Date of filing : 08.05.2008.
Date of disposal : 17.03.2009.

C.C.No.45/08
Between:-
Sukhdev Khaliya, S/o.Mishrilal,
Age:59 years, Occ:Tax Consultant,
Owner of Vehicle Car No.AP.01.J.3132,
R/o.Indiranagar, Nirmal, Dist.Adilabad.
…Complainant.

//AND//

The New India Assurance Company Ltd.,
Rep.by its Branch Manager,
Branch Office, Nirmal, Dist.Adilabad. …Opp.Party.




Counsel for Complainant : Mr. B.Praveen.


Counsel for Opposite Party : Mr. S.Raja Ram.

QUORUM:-
SRI.P.THIRUPATHI REDDY, M.A., L.L.B. : PRESIDENT.

SRI.C.RAMA REDDY, B.A., : MEMBER.

TUESDAY THE 17th DAY OF MARCH 2009.

-:ORDER:-

Order Pronounced by President:-

This complaint is filed under section 12 of C.P. Act 1986.
The brief facts of complaint are as follows:

1. The complainant is resident of Nirmal and owner of Hyundai Car bearing No.AP.01.J.3132 and the complainant got insured the above said vehicle with the Opp.Party vide Policy bearing No.610604/31/07/01/0000308 which was valid from 25-5-2007 to 24-5-2008. Unfortunately the vehicle of the complainant got damaged in a motor vehicle accident occurred on 15.12.2007 at 2100 hours on NH.No.7 at Narsampally X-Road. The vehicle of the complainant damaged badly. The complainant has informed the accident to the Opp.Party. In turn the Opp.Party sent the claim form and the complainant furnished the same to Opp.Party duly filled on 17.12.2007 claiming the vehicle damage. The Opp.Party asked the complainant to furnish the relevant documents pertaining to the damaged vehicle and police record. In turn the complainant has complied the same vide letter dt:12.01.2008. The Opp.Party has repudiated the claim of the complainant vide letter dt:13.03.2008 and subsequently on 17.03.2008 alleging that the driver of vehicle in question was not holding valid driving license on the date of accident. The above acts of the Opp.Party in avoiding the payment of policy amount to the complainant comes under the deficiency of service.
Hence the complainant prayed this Forum may kindly be pleased to allow the complaint as under:

• Direct the Opp.Party to pay a sum of Rs.1,00,000/- (Rupees One Lakh Only) to the complainant covered by the policy in question.
• Direct the Opp.Party to pay interest @ 18% per annum upon the awarded amount from the date of complaint till its realization.
• The costs of this complaint may be awarded to the complainant, in the interest of justice.

2. The Opp.Party contested the petition and filed counter. The contents of counter are as follows:
After the accident, the complainant sent a claim form and in the routine course an investigator was appointed. The Surveyor submitted his report dt:09.01.2008 assessing the damages to a tune of Rs.55,977.41 paisa. It is further revealed in the investigation that the vehicle driven by its driver namely D.Ganesh without effective driving license. It is revealed that the vehicle met with an accident on 15.12.2007. The driving license of the said driver expired on 12.09.2007. However the said driver after the date of accident got renewed the driving license with effect from 17.12.2007 to 16.12.2010. It is clear that after the expiry of 12.09.2007 there was no renewal even within 30 days of grace period allowed for renewal as per the M.V. Act and rules. It is submitted that the complainant is entering into a chance litigation and the claim of the complainant is vexatious, frivolous and liable to be dismissed in limini. The Opp.Party prayed to dismiss the complaint.
3. Both parties filed Proof Affidavits.
4. On behalf of complainant Ex.A1 to A11 are marked. No documents are filed on behalf of Opp.Parties.
5. Now the point for consideration is whether there are grounds to allow the petition?
6. Heard both sides. The Opp.Party repudiated the claim of the complainant only on the ground that the driver of the vehicle did not have effective driving license on the date of accident i.e., 15.12.2007. It appears the due date of the license expired on 12.09.2007 and the same was got renewed on 17.12.2007. In this connection we feel it reasonable to relied on

National Insurance Co.Ltd.

Vs.

Swaran Singh and others.

That the Parliament deliberately used two different expressions ‘effective license’ in section 3 and ‘duly licensed’ in sub-section (2) of Section 149 of the Act which are suggestive of the fact that a driver once licensed, unless he is disqualified, would continue to be a duly licensed person for the purpose of Chapter XI of the Act.

In the case of this nature The Supreme Court of India has, as early as in 2003, in the case of

United India Insurance Co.Ltd.,

Vs.

Loharu & Ors.

Categorically held that at the time of taking a job “if a driver produces a license which on the face of it looks genuine, the owner of the vehicle is not expected to find out whether the license has in fact been issued by a competent authority”. Relying on this verdict of the apex Court, the National Consumer Disputes Redressal Commission too has in National Insurance Co.Ltd., Vs.Harpal Singh, 2005 CTJ 974(CP), allowed the complaint of the truck owner whose truck met with an accident and the Insurance Company repudiated the claim. The ratio of such verdicts is that where the owner has satisfied himself that the driver has a license and is driving competently, there should then be no breach of Section 149(2)(ii) of the Motor Vehicles Act. Repudiation of insurance claims on this ground is not sustainable.

In view of the above case law, the objection raised by the Opp.Party is not tenable and we feel it is a fit case to grant compensation.

7. Coming to the point of compensation it appears the Surveyor after detailed inspection and enquiry assessed the loss and compensation is payable at Rs.55,977.41 ps. Perused documents filed by complainant. As seen from the claim of the complainant, he furnished payments receipts Ex.A9 to A11 one for Rs.75,000/- another for Rs.9,453/- total amount said to have spent by complainant is Rs.84,543/-. The amount of Rs.75,000/- sent by D.D.No.771880 dt:10.01.2008. Thus we feel it reasonable to pay compensation of Rs.85,000/-.

8. In the result the complaint is partly allowed. The Opp.Party is directed to make a payment of Rs.85,000/- (Rupees Eighty Five thousand Only) within the period of one month from the date of pronouncement of this order, failing which the above amount will carry interest @ 9% p.a. from the date of filing of complaint and the complainant shall be at liberty to proceed against them U/S.25/27 of Consumer Protection Act 1986.

Dictated to Steno, transcribed by her, corrected by us and pronounced in the Open Forum on the 17th day of March 2009.
Sd/- Sd/-
MEMBERPRESIDENT

Appendix of Evidence

Witnesses Examined

-None- -None-
Exhibits Marked


ON BEHALF OF COMPLAINANT ON BEHALF OF OPP. PARTY

Ex.A1: Xerox copy of Certificate of Registration.

Ex.A2: Xerox copy of Driving License.

Ex.A3: Xerox copy of F.I.R. Dt:16.12.2007.

Ex.A4: Xerox copy of Certificate of Insurance of Private
Car.

Ex.A5: Xerox copy of Terms & Conditions.

-Nil-

Ex.A6: Xerox copy of Motor Claim Form.

Ex.A7: Repudiation letter dt:13.03.2008.

Ex.A8: Letter from Opp.Party to complainant
dt:17.03.2008.

Ex.A9: Xerox copy of Receipt for Rs.75,000/-.

Ex.A10: Xerox copy of Receipt for Rs.9,543/-.
Dt:11.01.2008.

Ex.A11: Xerox copy of Invoice Cash/Credit.

Sd/- Sd/-
MEMBERPRESIDENT
//Certified True Copy//

//By Order//

ORDER SRI.K. VIJAYAKUMARAN, PRESIDENT.

Complainant filed this complaint for realization of insurance amount, compensation and costs etc.

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

Complainant’s husband was employed in gulf. While so he has joined a Group Janatha Personal Accident Policy sponsored by the opp.parties on 29.1.1999The policy save card issued under the above scheme bearing No.125536 was issued to the complainant’s husband. As per the condition in the policy in case policy holder died during the subsistence of the policy within 10 years in accident. the nominee will kept Rs.5,00,000/-. The complainant’s husband sustained injury in an accident in July 2004 at gulf. After that on 27.7.2004 he was brought home for further treatment attempted in the Thiruvananthapuram Medical College were he succumbed in the injury on 17.8.2004. The complainant is the regal heir and nominee as per the above policy and as such she is entitled to get Rs.5,00,000/- as per the conditions in the policy. The complainant produced the death certificate and claim form before the first opp.party But her claim was repudiated on 14.10.2004. Hence the complaint.

The Opp.parties filed a joint version contending, interalia, that the complaint is not maintainable either in law or on facts. There is no privity of contract between the complainant and opp.party and therefore there is no consumer relationship between the complainant and this opp.party. The opp.party has entered into a contract of Insurancef with M/s. Dollars India Card Ltd., Chennai and accordingly a mater policy bearing No.4771060000846 dt. 29.1.1999 was issued to the card holder from time to time under the Long Term Janata Personal Accident Policy. The cardholders of the Janata Personal Accident Policy were enrolled by the said Dollara India Card Ltd and the complainant’s husband was Sri. Reghunathan . It is a Group Personal Accident Policy and not an individual policy to respective cardholders. The period of policy was 10 years with death cover only. On the basis of the Agreement entered between Dollars India Card and as per the Master Policy the insurer has insured in the beneficiaries and issued individual Janatha Personal Accident Policy certificate. As per the policy certificate was issued the complainant the sum assured was Rs.5,00,000/- . For that a nominal sum of Rs.280/- was only received towards premium. The policy had validity from 29.1.1999 to 28.1.2009 as per the clause 5 of the condition of policy, the insured has every right to cancel the policy without assigning reason and in such case to refund the pro rata premium of the un expired portion of the risk. Due to the operational constrains and risk, the Regional Office of the opp.party asked all the branches to cancel the Janata Personal Accident Policy with effect from 1.5.2003 and to refund the pro-rata premium of the unexpired portion of the risk. Accordingly the Janata Personal Accident Policy was issued to the complainant’s husband was also cancelled and pro-rata premium for the unexpired period was refunded and the same was acknowledged by the complainant. The insurer has every right to cancel the policy by canceling the policy the complainant received this refunded premium without out protest or in objection. Now the complainant lhas approached the Hon’ble Forum alleging deficiency of service and unfair trade practice. For which the complainant has no right under condition number of the policy . This opp.party has rightly cancelled the policy and they have acted only in accordance with the conditions challenging the conditions of the policy is not at all a consumer dispute within the purview of Consumer Protection Act. The prayer of the complainant to disburse the insurance policy does not arise such policy is already cancelled. The policy was cancelled as early as 1.15.2003 whereas the subject risk here in case taken place on 17.8.2004. The complainant is not entitled to get the any benefits under the policy which was no longer in the existence as on the date of incident. There is no deficiency in service on the part of the opp.party The complaint is bad for non-jonder of necessary parties M/s. Dollars India Card Ltd is not made a party with whom only this opp.party has privity of contract. Hence the opp.parties prays to dismiss the complaint. With their costs.

Points that would arise for consideration are:
1.Whether there is deficiency in service on the part of the opp.parties
2.Reliefs and costs.
For the complainant PW.1 is examined Ext. P1 to P4 are marked.
For the opp.party DW.1 is examined. Ext. D1 to D5 are marked.

Points

There is no dispute that then there was a contract of Insurance between the 1st opp.party and the complainant’s husband Reghunathan. It was a Janatha Personal Accident Policy and the term of the policy was 10 years from 29.1.99 to 28.1.09. According to the 1st opp.party the contract of insurance was between opp.party 1 and M/s. Dollars India Card Ltd. and a Master policy bearing No.4771060000846 dt. 29.1.99 was issued to the card holders lwhich is not an individual policy but a giving Insurance Policy and that the complainant’s husband was a subscriber of the said policy. It is the further case of the 1st opp.party that the policy had certain conditions and under condition. NO.5 of the said policy the insurance company reserved their right to cancel the policy at any time without assigning any reason after paying the prorate premium for the unexpired portion of the risk and in exercise of that right they cancelled the above Janatha Personal Accident Policy with effect from 1.5.2003 and the policy in respect of the complainant’s husband was also cancelled.

The contention of the learned counsel for the complainant is that the 1st opp.party has no right to cancel the policy unilaterally without giving notice to the policy holders. It is further argued that copies of condition was not given to the policy holders nor they were informed about the conditions and as such unilateral cancellation of policy is unsustainable.

Now the question is whether or not the cancellation of the policy is valid . The definite contention of the 1st opp.party is that they have every right to cancel the Janatha Personal Accident Policy at any time invoking condition NO.V after giving notice to the policy holders and that they have given due notice to the policy holders and also given the prorate premium for the unexpired portion. Every policy will have terms and conditions and the policies are accompanied with conditions. It cannot be believed that in the p[olicy of the complainant’s husband the terms and condition were not annexed condition No.V of Ext. D1 policy is an follows: “ The company may at any time by notice in writing cancel this policy, provided that the company shall in that case return to the insured the then last paid premium less a pro-rata part thereof for the portion of the current insurance period which shall have expired ……” Ext. D3 series shows that the opp.party has send a notice under certificate of posting in the address of the insured furnished in the policy. A notice which is correctly addressed and properly stamped can be presumed to be delivered Ext.P4 also would establish that the notice and the cheque for prorate premium have been received by the insured. So in our view the cancellation of the policy by the 1st opp.party invoking condition V is valid and proper

Now the question is whether the complainant is entitled to get the policy amount after cancellation of the policy or not. Though the policy was cancelled with effect from 1.5.2003 the insured did not challenge the same during his life true. After one year land 3 months after the cancellation when the insured died the complainant lwho is the wife of the insured is challenging the cancellation and claiming the insurance amount when once the contract of insurance is cancelled the insured ceased to be a consumer of the 1st opp.party and the 1st opp.party is lno longer bound to entertain the claim. As argued by the learned counsel for 1st opp.party when the risk occurred on 17.81.2004 the policy was not subsisting and therefore the insured cannot be said to be a consumer and reliance can be drawn from the decision of National Commission reported in 2008 [1] CPJ 384. Therefore we hold that the complainant is not entitled to get the policy amount. There is no deficiency in service on the part of the opp.party. Point found accordingly.

In the result the complaint fails land the same is hereby dismissed. No costs.

ORDER Speaking through Smt.Meenakshi Kulkarni, Lady Member.

1. This complaint is filed on 29.12.2008 as per Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to the “Act”) against the Opposite Party (in short the OP) for awarding Rs.2,61,910=00 towards damage to the Drip Irrigation System, Rs.50,000=00 towards payment of Bank interest, Rs.20,000=00 for compensation and Rs.5,000=00 towards cost of litigation.

2. The facts of the case in nutshell as is narrated by the complainant are as follows: The complainant is a progressive farmer owning agricultural land at Nidagundi Village bearing Survey No.404. He took a Loan on Rs.5,00,000=00 from S.B.I. to install Drip Irrigation System in the said agricultural land. The said System was insured with OP by paying a huge premium through S.B.I. and the risk was covered under Drip Irrigation Policy bearing No.670906/47/07/98/00000195 which was valid from 06.06.2007 to 05.06.2008.


3. The complainant grew sugarcane in his land which was sent to Sugar Factory on 02.06.2008. Unfortunately, the very next day i.e. on 03.06.2008, at about 12.00 noon, an accidental fire to the husk was caught due to which entire pipes of Drip Irrigation System were burnt. The accidental fire spread to the entire field and the entire Irrigation System was burnt. The complainant reported about the incident to the Revenue Authorities i.e. Village Accountant who issued a Certificate on 04.06.2008 regarding the accidental fire and the damage to the entire Drip Irrigation System pertaining to the land of the complainant. The village in which the land is situated does not have fire brigade Office. So, the said matter was not reported to the fire brigade. But, the said incident was reported to the S.B.I., Nidagundi, because the said Irrigation System was installed by availing Loan from the Bank. The complainant also informed about the accident to the OP and the Survey was conducted on 05.06.2008.


4. In this incidental fire, the entire Drip Irrigation such as Ram, Start Nipple, Rubber Gromate, Plug, PVC Pipes, Ball Value, Flush Value, Fittings etc. were damaged. The cost of the said damage went to the tune of Rs.2,61,910=00. The said valuation was intimated to the OP and the details were furnished along with the evaluation report. The complainant also submitted all the bills and necessary documents to the OP for seeking the claim.


5. OP instead of settling the claim, after going through the documents and their own Survey Reports. Surprisingly has repudiated the claim vide letter dated: 20.11.2008 on a vague ground of not informing the accidental fire to the Police. The complainant was ignorant about the informing the incident to the police and the said matter is also not mentioned in the policy. The second reason assigned for repudiation was that the complainant did not remove the Drip Irrigation System after the harvest. The complainant had not planned to burn the husk after the removal of the sugarcane. Hence, there was no need to remove the Drip Irrigation System and no such condition was put in the policy. The complainant has suffered heavy loss due to the act of the OP and prays to award Rs.2,61,000=00 towards damages to Drip Irrigation System, Rs.50,000=00 towards Bank interest, Rs.20,000=00 for mental agony and Rs.5,000=00 towards cost of the litigation.


6. After receipt of the notice, in the objection OP totally denies the complaint as vexatious and frivolous. However, OP admits about the Policy issued to the complainant bearing No.670906/47/07/98/00000/195 which was valid from 06.06.2007 to 05.06.2008. The OP totally denies the cost of damage caused to the Drip Irrigation System was to the tune of Rs.2,61,910=00 and also other costs. OP also denies the reporting of incident to the Village Accountant and not having a fire brigade office in the said village.


7. The OP submits that it was only on the intimation by S.B.I. Nidagundi dated: 03.06.2008 which made them aware about the incidents. Depending upon this letter, Sri.D.J.Dhanshetty was appointed as Surveyor and Loss Assessor to carry-out the survey and assess the damages. He estimated the loss due to fire to Rs.1,73,974.50. The Surveyor has also suggested to deduct the Government Subsidy received by the complainant.


8. The OP also submits that the complainant was supposed to protect the Drip Irrigation System with utmost care and was also required to remove the PVC pipelines immediately after cutting of sugarcane. But, the complainant has failed to do so. In addition, the complainant has not informed about the said fire to the fire brigade office and to the police. Due to this, OP lost the opportunity of getting proper investigation done by the police and independent investigator. Hence, the claim of the complainant was repudiated on 20.11.2008 and was sent to State Bank of India, Nidagundi. The copy of the same was endorsed to the complainant. Hence, the repudiation of the claim of the complainant is legal, valid and proper. No cause of action has arisen to the complainant to file the said complaint and OP prays to dismiss the complaint with cost.


9. Both the parties have filed affidavit in lieu of evidence to prove their case. The complainant has filed written argument and OP has filed a Memo stating that his objection and affidavits can be adopted as written arguments. In the circumstances, the following points do arise for our consideration in deciding the case. They are: (i) Whether OP has rendered deficiency in service to the complainant thereby entitling him to the relief as is sought for? (ii) What Order?


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


11. We shall substantiate our findings on the following: R E A S O N S POINT NO.1: The complainant Counsel has submitted 6 documents in support of his case. They are marked as Exhibit C1 to C6. The advocate for OP has submitted 4 documents which are marked as Exhibit OP1 to OP4. Perused all the documents.

12. Exhibit C1 and OP4 are the repudiation letter dated: 20.11.2009 by the OP to the complainant. In this, the main grounds for repudiating the claim of the complainant are; (i) not reporting the incident of fire either to police or to fire brigade, (ii) non-removing the PVC pipelines after sugarcane cutting.

13. According to the OP, both of these amounts to the complainant are breach of Terms and Conditions of the Policy. Hence, the OP has repudiated the complaint.


14. As far as the contention No.1 of not informing the incident of fire to the police or to the fire brigade is concerned, the complainant has already stated in his complaint that there is no fire brigade office in the village where the agricultural land of the complainant is situated. Hence, the incident of accidental fire could not be reported to the fire brigade. The information to the police was according to complainant was unwarranted because the complainant has installed the Drip Irrigation in his field by availing the loan from the S.B.I. So, he informed about the accidental fire to the S.B.I., Nidagundi because it was through the S.B.I. that the insurance was taken against the said Drip Irrigation System. However, the complainant has reported about the accident to the Revenue Authorities i.e. Village Accountant. This he has quoted in Para No.4 in complaint and his affidavit at Page No.2. The complainant has produced Certificate issued by Village Accountant which is dated: 04.06.2008 (Exhibit C2). The Op also nowhere in his objection has challenged this submission of the complainant. So, we believe the fare submission of the complainant that there is no fire brigade office in the Nidagundi Village. As far as information to police is concerned, the complainant has stated that he has informed about the incident to the S.B.I. Nidagundi, because of loan facility availed by the complainant. In our view, non registration of the police case regarding the incident does not give rise to any adverse inference. To support this, we goby Ruling in I.L.R. 1996 KAR 161 in H.N. Nagarajan.J in Meenakshamma V/s Hanumanthappa, it is held in this case as hereunder: “(i) The claim is a summary civil proceeding wherein the claimant is required to rove the rash and negligent driving of the vehicle by independent evidence. Hence, non-registration of a police case regarding the accident does not give rise to any adverse inference that no such motor accident occurred” So, not informing about the accidental fire to the police station cannot be held a ground for repudiation of the valid claim of the complainant.


15. The second reason for repudiation of the complainant’s claim according to OP is, non removal of PVC pipes after sugarcane cutting. However, it can be seen from the Exhibits produced by the complainant before this Forum that the sugar cutting is done on 02.06.2008. Exhibit C4 is a Weight List issued by the Bilagi Sugar Ltd., Badagandi. This is a Slip issued against acceptance of sugarcane waiving 13.350 m.tone on 02.06.2008 at 3.24 AM. There is no dispute among the parties about the accidental fire occurring on 03.06.2008 at 12.00 noon. So, the reason given by the complainant that he did not had sufficient time to remove the Drip Irrigation System after cutting of sugarcane is proved with cogent and acceptable documentary evidences (para 9, Page 3 of complaint and affidavit). Hence, the repudiation of the valid claim of the complainant by the OP is a deficiency in service rendered by the OP to the complainant. This is also because there is no dispute between the parties about the valid insurance policy of the complainant at the time of the accidental fire. 16. Now next point that arises how much compensation complainant is entitled for? Exhibit OP3 is the Survey Report of independent Surveyor and Loss Assessor of OP. In this, the loss assessed by the OP’s Surveyor is Rs.1,73,974.50 and it is been admitted by the OP in his affidavit at Para No.7 that if at all OP was to pay the compensation the estimated loss would be Rs.1,73,974.50. With the observations for a deducting of Government Subsidy received by the complainant. However, the OP has nowhere stated as to how much subsidy the complainant has received or would be entitled to receive. The complainant is also silent in his complaint about the said point. When it is so, in our view, the complainant is entitled to Rs.1,73,974.50 towards the damages to his Drip Irrigation System installed in his agricultural land. For this, we rely upon Ruling Hon’ble National Consumer Disputes Redressal Commission, New Delhi in 2008 (4) CPR 83 (NC) (National Insurance Co. Ltd. through its Branch Manager & Anr. - Appellants V/s M/s Shree Shyam Cold Storage through its Director -Respondent). It is Held that IMPORTANT POINT Report of Surveyor appointed under the provisions of Insurance Act has to be given greater importance. The complainant is also entitled to Rs.10,000=00 towards mental agony and Rs.2,000=00 towards cost of litigation. With this, we answer to point No.1 in partly affirmative. 17. POINT NO.2: In the light of our affirmative finding on Point No.1 supra, we proceed to pass the following : O R D E R 1) The complaint of the complainant is partly allowed. 2) The OP is hereby ordered to pay Rs.1,73,974.50 (Rupees one lakh seventy three thousand nine hundred and seventy four rupees fifty paise) towards the vehicle damages within 2 months of passing of this Order, failing which complainant is entitled to interest at the rate of 12% per annum from the date of filing of this complaint, till its entire realization. 3) The OP is also ordered to pay Rs.10,000-00 (Rupees ten thousand) towards mental agony & Rs.2,000-00 (Rupees two thousand) towards the cost of this litigation to the complainant. There is no order as to interest on mental agony and cost of litigation of the complaint. 4) The free copy of this order shall be sent to both the parties. (This order is dictated to the Stenographer, transcripted corrected and then pronounced in the open Forum on this 19th day of March -2009) (Sri.Viswanatha Reddy, B.K.) President. ( Smt.Minakshi.R.Kulkarni ) , Lady Member ( Shri. S.G.Kulkarni ) Member.

ORDER Speaking through Smt.Meenakshi Kulkarni, Lady Member.

1. Aggrieved by the acts of the Opposite Party (in short the OP), this complaint is lodged by the complainant on 20.01.2009 under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to the “Act”) for awarding Rs.95,000=00 towards damage to his vehicle along with 12% interest, Rs.25,000=00 towards mental agony andRs.10,000=00 towards cost of litigation etc.


2. The facts of the case in nutshell as is narrated by the complainant are as follows: The complainant is the owner of the vehicle bearing No.KA-28/A-1678. The said vehicle was insured with OP under Insurance Policy bearing No.670906/31/07/01-00001588. Unfortunately on 17.02.2008, the said vehicle met with the accident and the same was intimated to the Manager of the OP. The spot inspection of the accident was conducted by independent loss and assessor one Mr. N.S.Pati. After the said inspection vehicle was taken to Bagalkot for repairs and damaged spare-parts were replaced with the prior intimation to the OP.


3. The complainant submitted all the bills along with the claim form to the OP to indemnify the loss. OP asked for clarification of some of the documents to settle the claim. The complainant obeyed the same. Inspite of this on 10.07.2008, OP repudiated the claim of the complainant on the false contention of driver not having the valid driving licence. So, the complainant issued a legal notice to the OP through an advocate on 21.10.2008 calling upon to pay Rs.95,000=00 along with 10% interest from the date of accident till its realization and has filed the said complaint.


4. The complainant prays Rs.95,000=00 towards repairs of damages caused to the vehicle along with 12% interest from 17.02.2008 till its realization. Rs.25,000=00 towards mental agony and Rs.10,000=00 towards cost of proceeding.



5. The OP after receipt of the notice in his Written Version claims that the complaint is totally false and not maintainable either in Law and facts of the case. Op admits that the vehicle bearing No.KA-28/A-1678 was insured under the goods carrying commercial vehicle (open) Policy-B Package bearing No.670906/07/01/0000 1588 for a period from 22.07.2007 to 21.07.2008. The OP received the claim intimation of the accident from the complainant on 19.02.2008 and immediately Mr. N.S.Patil was appointed to conduct the spot Survey who submitted his Report on 18.03.2008. After receipt of the Claim Form from the complainant and the estimate, OP appointed Sri.C.S.Kadlimatti for the final Survey who visited the Repairer’s workshop of M/s. G.N.Makandar Garage of Bagalkot who assessed the loss sustained by the vehicle. The Final Survey Report was submitted on 05.04.2008 and the loss was assessed at Rs.35,600=00 approximately. After the said Survey, Mr. A.R.Vaidya was appointed for re-inspection of the replaced price and repair works. He reported his findings on 23.04.2008 about the satisfactory repair works made to the vehicle and fixed the net liability to Rs.35,303.75 minus Rs.50=00 for expected salvage.



6. The accident of the vehicle dated: 18.02.2008 was not reported to the Police and no Crime was registered. It was noticed that the driver of the vehicle Mr. Suresh Japu Lamani was authorized to drive heavy transport vehicle and the said licence was renewed from 17.02.2005 to 16.02.2008. Thus the D.L. had expired prior to the date of the accident i.e. 18.02.2008. This is the clear breach of Terms and Conditions of the Policy issued. Hence, the complaint was repudiated vide letter dated: 08.07.2008. This repudiation is legal and valid. It is the duty of the Applicant to file the Application for renewal of D.L. prior to 30 days of the expiry date, for it’s automatic renewal. If the driver had made any such Application then also it would have been held to of possession of a valid licence. Because as per Section 15 (1), the renewal of D.L. takes effect immediately from the date of its expiry in case of the Application for the same is made prior to 30 days of his expiry. In the present case in our hand, as per the endorsement seen on D.L., the renewal was from 26.06.2008 to 25.06.2011. Therefore, the renewal was moved after the expiry on 30 days from 16.02.2008. Hence, it was held that the driver was not having valid driving licence. So, the claim was closed as NIL Claim as per the letter dated: 25.10.2008 after the fresh endorsement from the complainant was received on 16.10.2008. Hence, the complainant is not entitled to the claim as is sought for. The complaint be dismissed with compensatory cost of Rs.5,000=00. The complainant and OP have filed affidavit to support their arguments. In the circumstances, the following points do arise for our consideration in deciding the case. They are: (i) Whether OP has rendered deficiency in service to the complainant thereby entitling him to the relief as is sought for? (ii) What Order? 7. Our Findings to these points are as hereunder: i) Affirmative, ii) As per the operative portion of the Order here below.



8. We shall substantiate our findings on the following: R E A S O N S POINT NO.1: The learned counsels for both the parties have submitted the written arguments and also have filed supporting documents. The 9 documents filed in his case support by the complainant’s advocate are marked as Exhibit C1 to C9. The documents of the OP Counsel are 17 and are marked as Exhibit OP1 to OP17. Perused the documents.



9. There is no dispute as to the Insurance Policy issued against the complainant vehicle bearing No.KA-28/A-1678 and it is validity as on the date of the accident. Exhibit C5 and OP17 are the xerox copy of the Insurance Policy which supports the say of the complainant that the policy was valid as on the date of accident. The fact of the accident was informed to the OP on 18.02.2008 about 10 PM as per the Motor Claim Form which is Exhibit OP16. There is no second word by the OP towards happening of the accident to the vehicle of the complainant bearing No.KA-28/A-1678. The main contention of the OP-Counsel in non-settlement of the claim is, not having valid driving licence as on the date of the accident and not reporting about the accident to the police. To this, the complainant has given an explanation that since there was no third party involvement in the accident. So the same was not informed to the police. Secondly, about the driving licence, it can be seen from the xerox copy of the D.L. produced by OP which is Exhibit C4 and OP11. Perused the same. There are no two opinions about who was the driver of the vehicle at the time of the accident. It is accepted by the both the parties that the name of the driver at the time of accident is Suresh Japu Lamani and Exhibit OP11 and Exhibit OP4 is the xerox copy of the D.L. of the said driver. We perused the said Exhibits and it can be seen that the said driving licence was issued to Mr. Suresh Lamani on 14.09.1993 and was valid upto 2030 for L.M.V. The licence to drive to heavy motor vehicle was issued among 18.09.1988 and this was valid upto 17.09.2001. This was renewed again on 19.01.2002 and was valid upto 18.01.2005. The third time, the said licence was again renewed on 17.02.2005 and was valid upto 16.02.2008. This document is accepted by both the parties. By perusing the said document, it is the established fact that the said driver is authorized to drive L.M.V. upto the year 2013 and licenced drive L.M.V. was first time was issued in the year 1993 and heavy motor vehicle in the year 1998. It means, the driver has both the driving skill for more than 11 years approximately. The art of the driving cannot be stolen or forgotten once a person becomes efficient driver. The driver in question in our view is an expert driver because his driving both the vehicles from the year 1993 and the accident had taken place on 17.02.2008. So, he has a vast expert of driving for more than 15 years. The contention taken by the OP-Counsel that the driver was not having effective valid driving licence cannot be accepted. Because the said licence is renewed again from 26.06.2008 and which is valid upto 25.06.2011 and the said fact is accepted by the OP in Para No.9 in his affidavit and objections at Page No.2 at Para No.9. This means, the OP also accepts that the driver is an efficient and expert driver which is decided by the R.T.O. Office. Exhibit OP17is the Insurance Policy and in this in the column heading “persons or classes of persons entitled to drive”, it is clearly noted as follows: “Any persons including Insured provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence”.


10. In the present case in our hand, the licence of the driver at the time of the accident is renewed on 26.06.2008 though it had expired at the time of the accident i.e. on 17.02.2008. This shows that he was not disqualified from holding or obtaining such licence because it is been renewed by the licensing authority. As already discussed the above, the driver was an experts driver whose licence was renewed with the licensing authority. As such there is no ground to OP to repudiate the valid claim of the complainant. In our opinion, the excuse given by the OP in repudiating the claim of the complainant is lame and does not have sufficient ground. This is the deficiency in service rendered by the OP to the complainant.


11. Exhibit C3 is R.C. Book of the vehicle in question. In this, on column No.14, the unladen weight of the vehicle is written as 6014 KG. Hence, the said vehicle comes under the category of L.M.V. in view of the Ruling in 2008 Kant M.A.C. 311 (S.C.) Supreme Court, National Insurance Co. Ltd. V/s Annappa Irapa Nasaria and others. In this, it is held that: “Motor Vehicles Act, 1988, Sections 2 (21) (47), 3, 149(2) (a) (ii)- Central Motor Vehicles Rules, 1989 Rule 14-Liability of Insurer-Driver having licence to drive “light motor vehicle”, driving a van, a goods carriage-Tribunal held driver authroised to drive goods carriage as unladen weight of vehicle less than 7500 Kgs.- Finding not accepted by High Court-Held-A driver having valid licence to drive light motor vehicle authroised to drive a light goods vehicle as well-Insurer cannot be absolved from its liability”. Hence, the contention of the OP that driver doesn’t have valid D.L. is not accepted. Because the vehicle’s unladen weight is 6014 K.G. and the vehicles having unladen weight of less than 7500 KGs are L.M.V. and the driver was having valid D.L. of L.M.V. at the time of accident.


12. One contention of OP is not informing the accident to Police Station. But, it is decided in the reported case in I.L.R. 1996 KAR 161 in H.N. Nagarajan.J in Meenakshamma V/s Hanumanthappa, it is held in this case as hereunder: “(i) The claim is a summary civil proceeding wherein the claimant is required to rove the rash and negligent driving of the vehicle by independent evidence. Hence, non-registration of a police case regarding the accident does not give rise to any adverse inference that no such motor accident occurred” With these observations, it is clear that OP has rendered deficiency in service to the complainant by repudiating his valid claim.


13. Now we go further to decide as to how much compensation complainant entitled for, since the deficiency in service is proved beyond doubt. Exhibit OP1, 2 and 3 are the Spot Survey and Final Survey and Re-inspection Report produced by the OP himself. The OP has conducted the first Spot Survey then the final survey. Again vehicle was re-inspected about the repair work undertaken by the complainant. Exhibit OP4 is a Bill Check Report. In this, the loss to the vehicle is assessed at Rs.35,303.75 minus Rs.50=00 for its salvage. The Survey Report is an important document in settling the claim. Hence we goby the same and come to the conclusion that the complainant is entitled to Rs.35,253=75 rounded upto Rs.35,260=00 towards damge to the vehicle. The complainant has claimed Rs.25,000=00 towards mental agony and Rs.10,000=00 towards cost of litigation. But, in our opinion Rs.5,000=00 for mental agony and Rs.1,000=00 towards cost of litigation will meet ends of justice. With this, we answer to Point No.1 in partly affirmative.


14. POINT NO.2: In the light our affirmative finding on Point No.1 supra, we proceed to pass the following: O R D E R 1) The complaint of the complainant is allowed partly. 2) The OP is hereby ordered to pay Rs.35,260=00 (Rupees thirty five thousand two hundred and sixty) towards damaged vehicle within 2 months of passing of this Order, failing which complainant is entitled to interest at the rate of 12% per annum from the date of filing of this complaint i.e.20.01.2008, till its entire realization. 3) The OP is also ordered to pay Rs.5,000-00 (Rupees five thousand) towards mental agony & Rs.1,000-00 (Rupees one thousand) towards the cost of this litigation to the complainant. There is no order as to interest on mental agony and cost of litigation of the complaint. 4) The free copy of this order shall be sent to both the parties. (This order is dictated to the Stenographer, transcripted corrected and then pronounced in the open Forum on this 19th day of March -2009) (Sri.Viswantaha Reddy, B.K.) President. ( Smt.Minakshi.R.Kulkarni ) Lady Member ( Shri. S.G.Kulkarni ) Member.

ORDER

ORDER DELIVERED BY Sri. R.G.PATIL, PRESIDENT




1)This is a complaint praying to direct the OP to pay to the complainant Rs.28,800-00 with 8% interest, Rs.2,500-00 towards correspondence and mental tension, Rs.2,000-00 towards transportation charges and litigation expenses, and cost.

2)Brief facts of the complaint are that the complainant purchased cardiac Monitor Biosys BPM 730 Multi parameter equipment No. 173FG5095 on 17-10-2003 from the OP-2 for Rs.1,22,000-00. He was insuring the machine with the OP-1 since 2003 till 10-10-2007 and insured it from 11-10-2006 10-10 2007 by paying premium of Rs.10,105-00. The equipment was repaired by the OP-2 as per service report dated 8-8-05.The machine was out of order. It was not giving proper print. Hence he wrote to the OP-1 on 9-10-2007 to send a surveyor. It was sent for repairs on 29-10-2007 to Alpha Meditech Manglore. The repairs charge was Rs 28,800-00. The complainant submitted a claim with the OP-1 on 22-1-2008. The OP-1 on 12-5-2008 informed that the claim is not admissible since the damaged equipment is not covered under the policy and he repudiated the claim. The complainant in his letter dated 9-9-08 informed the OP-2 that the repaired and returned machine of model BPM700P Sl.No. 174FG5139 in 2005 does not match the original model BPM730 equipment No. 173FG5095 which was insured with the OP-1 and the OP-1 is refusing to settle the claim. The complainant requested the OP-2 to return the original model or to write to the OP-1 to settle the claim and informed the OP-1 that he has the only machine, which was exchanged by the OP-2 in 2005. He requested the OP-2 to settle the claim. The OP-2 also wrote to the OP-1 to settle the claim as the BPM 703 model and the BPM 700 model are having the same parameters. But the OP-1 on 6-10-08 repudiated the claim. The complainant was unaware of the replacement of the model by the OP-2 and was paying the premium amount sincerely and the OP-1 was receiving the amount. Hence the claimant is entitled for the claim amount. There is deficiency of service on the part of OPs and they are liable.

3)The OP-1 filed WS admitting the policy and further stating that the repairs were carried out by unauthorized party without permission and it is not liable for the costs of repairs. The claim of the complainant is not admissible since the damaged equipment is not covered under the relevant policy. The complainant if aggrieved may claim the amount from the OP-2. The repudiation by OP-1 is on valid grounds. There is no any malafide intention by the OP-1. He prays to dismiss the complaint.

4)The complainant and the OP have filed their affidavits. The complainant has got marked Ex.C-1 to C-7 and the OP Ex.R-1 to R-9.

5)The point that arises for our consideration is:
“Whether there is deficiency of service on the part of the OPs? If so with whom ?”


6)It is the contention of the counsel for the complainant that the insured had the only machine in his hospital that was insured with the OP. He did not know that the OP-2 had supplied a changed machine. He was insuring the machine since 2005 till 2007. The parameters of both the machines are the same. The rejection of the claim is the deficiency of service by the OP-1.

7)The counsel for the OP vehemently urged that without permission of the OP the repairs of the machine were carried out by unauthorized party. So the OP-1 is not liable for the costs of repairs. The claim of the complainant is not admissible since the damaged equipment is not covered under the relevant policy. The complainant has no insurable interest. The complainant if aggrieved may claim the amount from the OP-2. The repudiation by OP-1 is on valid grounds. There is no any malafide intention by the OP-1. There is no deficiency of service on the part of the OP-1 and he is not liable. He prays to dismiss the complaint.

8)We have gone through the pleadings, affidavits and documents submitted by the parties. It is a fact that the complainant purchased the machine from the OP-2 in 2005. It went out of order in 2005. The complainant sent it to OP-2 for repairs. The OP-2 instead of sending the original machine sent another machine. That machine went out of order in 2007. The complainant got it repaired by Alpha Meditech by spending Rs.28,800-00. The fact that the OP-2 gave a different machine is not known to the complainant as well as the OP-1.The policy is being issued since 2005 till 2007.The OP-1 repudiated the claim on the ground that the defective machine is not covered under the policy. It seems that the OP-1 issued the policy without inspecting the machine. The complainant has no knowledge of change of the machine. There is no intention of the complainant to suppress any fact. The OP-1 had to inspect the machine at the time of issuing the policy. The OP issued policy for the machine, which was present in the hospital. The machine was not defective while issuing the policy. Later the defects occurred and it was got repaired by the Alpha Meditech Manglore. There is nothing in the policy conditions to get the machine repaired by a particular center. Under the circumstances, the denial of claim by the OP-1 is unjustified and the OP-1 is liable.

9)The complainant has claimed Rs.28,800-00 towards repairs of the machine. The surveyor in his report has assessed the amount of repairs to Rs.24900-00. Showing the present cost of the machine of about Rs.1,35,000-00 he has assessed the loss to Rs.22,502 for the reason of under valuation. The OP has not produced any document to show that the present market value of the machine is Rs.1,35,000-00. He has deducted Rs.2500-00 towards policy excess, which is also unfair. Under the circumstances if we allow the complaint directing the OP to pay Rs.24,900-00 with interest @ 9% p.a. from 12-5-2008 till realization with cost of Rs.1,000-00 it will be justifiable. The complaint against OP-2 shall be dismissed.
We pass the following order.

ORDER

The complaint is allowed. The OP-1 is directed to pay to the complainant Rs.24,900-00 (Rs.Twenty four thousand nine hundred only) with interest @ 9% p.a. from 12-5-2008 till realization with cost of Rs.1,000-00. (Rs.One thousand only) The complaint against the OP-2 is dismissed.

Minor D. Vinulinga Raja,
Represented by his father and Complainant
Natural Guaradian,
Mr.V.S.R. Dharmalingam,
12, State Bank Colony,
Shastri Nagar,
Adyar, Chennai-20.

- Vs -

The New India Assurance Co. Ltd.,
Divisional Office 712500 Opposite party
Second Floor,
‘ B ‘ Block,
No.21, Pattullas Road,
Chennai-2.

Date of Complaint 30.03.2001

M/s. K.R. Krishnan & R. Mathivanan : Counsel for the complainant

Mr. K. Suryanarayanan : Counsel for the opposite party

O R D E R

THIRU. P. ROSIAH, PRESIDENT

Complaint filed under section 12 of the Consumer Protection Act, 1986.

1.The case of the complainant is briefly as follows:
The complainant had taken medi-claim policy with the Opposite party for the period from 01.02.2000 to 31.01.2001 covering all the family members including the complainant. He was hospitalized on 10.08.2000 for Slipped Upper Femoral Ephiphuysis in ApelloSpecialtyHospital at Chennai and underwent major surgery. He was discharged on 18.08.2000. The complainant’s father had incurred Rs.55,000/- as hospital expenses. The complainant made a claim with the Opposite party as per the policy. But. the opposite party repudiated the claim of the complainant on the ground of pre-existing disease. The reason given by ;the Opposite party for repudiating the claim is unacceptable. Hence, the complainant has filed this complaint claiming the expenses incurred in the hospital and compensation for mental agony.
2. The opposite party filed version and contended inter alia that on the basis of the claim form submitted by the complainant on 24.08.2000, the investigating agency was appointed to enquire into the matter. The investigating agency has reported the Opposite party that ;the complainant was already suffering from problem Slipped Upper Femoral Ephiphysis even in the year 1999. The complainant made a false claim knowing to be false with intention to enrich himself. Therefore, the opposite party repudiated the claim as per exclusion clause 4.1 of the mediclaim policy. There is no deficiency in service on the part of the opposite party.
3. Proof affidavits have been filed by both the complainant and the opposite party. Exhibits A1 to A4 were marked on the side of the complainant. Ex B1 was marked on the side of the opposite party.
4. The points that arise for consideration are;-
1) Whether there is any deficiency in service on the part of the
opposite parties?
2) To what relief the complainant is entitled to?
5. Point No.1: The complainant being a minor represented by his father had taken mediclaim policy with the Opposite party for the period from 01.02.2000 to 31.01.2001. This fact has been admitted by the Opposite party. Ex A1 is the copy of the mediclaim policy issued by the Opposite party. The complainant was admitted to the ApolloSpecialtyHospital on 10.08.2000 for Slipped Upper Femoral Ephiyphysis in ApolloSpecialtyHospital, Chennai and had undergone surgery. He was discharged on 18.08.2000. The complainant’s father had incurred Rs.55,000/- as hospital charges. He made a claim with the Opposite party. Ex A2 is the copy of the claim form. He opposite party after examining the claim made by the complainant repudiated the same on the ground that the insured had sustained injury in August 1999. Since the policy was covered from 01.02.2000 which includes the claims arising out of pre-existing injuries. The opposite party rejected the claim based on the report of the investigation agency appointed to enquire into the claim made by the complainant. Ex B1 is the investigating report. The report would go to show that the insured had fall in the sports stadium during August 1999 and therefore the claim is not genuine. The investigation is an exparte investigation and the report Ex B1 is not supported by any documents. Ex A3 which is the summary did not indicate that the insured had fallen in 1999. Hence it is evident that Ex B1 is not supported by any documentary evidence. The opposite party cannot repudiate the claim of the complainant based on the report of the investigator without any valid documentary proof. Hence, we are unable to accept the contention of the opposite party that the complainant had problem of Slipped Upper Femoral Ephipysis in the year 1999. Denying the medi-claim insurance amount amounts to deficiency in service. The point is answered accordingly.
6. Point No.2: In the result, the complaint is allowed. The opposite party is directed to pay the complainant a sum of Rs.55,000/- being the amount incurred by the complainant for hospitalization, if found correct after verifying the bills within two months from the date of receipt of copy of this order, failing which the amount shall carry interest at the 9% per annum till the date of payment. The opposite party is also further directed to pay a sum of Rs.20,000/- as compensation for mental agony and Rs.5000/-as cost of the complaint to the complainant within two months from the date of receipt of copy of this order, failing which the amount shall carry interest at the rate of 9% per annum till the date of payment.

R.Ramanathan,
S/o.K.Ramalingam,
56, Perumal Naidu Nagar, Vadepatti, Bo
Coimbatore 641 007. --- Complainant
Vs.
Anto Fernanbo,
Senior Divisional Manager,
New India Assurance Co.Ltd.,
435, D.B.Road, R.S.Puram
Coimbatore – 641002. --- Opposite Party

This case coming on for final hearing before us today in the presence of Sri.E.Rajendran,and Chris B.Ajay, Advocates for complainant and Sri.M.N.Manohar, Advocate for the opposite party and upon perusing the case records and hearing the arguments and the case having stood over to this day for consideration, this Forum passed the following:
ORDER
Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite party to pay a claim amount of Rs.44,170, compensation for causing mental agony and deficiency in service.

The case of the complaint are as follows:
1.The Complainant is a policy holder of Health Plus Medical Insurance Policy with New India Assurance Company. The policy No.is 720100/34/07/18/00001180.The complainant was admitted to the Coimbatore Kidney Centre for difficulty in breathing and cough from 10.1.08 to 16.1.08 and submitted a claim bill for Rs.44,170/-.The complainant approached several times in person and over phone but the opposite party refused to admit the claim of the complainant stating that the disease is a pre existing one. Hence this complaint.

The case of the Opposite party are as follows:
2. The complainant had taken a policy covering the risk period from 21.7.07 to 20.7.08. The policy excludes the diseases like Appendicular, Abscess, Cardiac ailments etc. While so the complainant, preferred a claim for his alleged treatment at Coimbatore Kidney Centre from 10.1.08 till 16.1.08 for the ailments of Diabetes Mellitus, IHD, CABG, Diabetic Nephropathy Pneumonia, Right upper lode and submitted a bill for Rs.44,170.34. When the opposite party sought for an investigation before finalization, it was revealed that the complainant got admitted into the hospital for difficulty in breathing and cough, but took treatment for the ailments which are already excluded under the policy. Therefore this opposite party rightly repudiated the claim.
3. The Hospital authorities had stated that the complainant, was first seen at the hospital on 20.1.03, had previous consultation at CABG Railway hospital, Chennai on 20.1.03, had breathlessness on 6.7.03, history of hypertension for 14 years, history of diabetes mellitus for 15 years, and hydrocele and hernia done. Since, the ailments now under gone were already pre-existing at the time of taking the policy this opposite party repudiated the claim as pre-existing disease. The complainant is not entitled for compensation towards mental agony and for deficiency in service.
4. The complainant and opposite party have filed Proof Affidavits along with Ex.A1 to A8 Ex.A1 to A8 was marked and Ex.B1 to B4 was marked .
The points for consideration are:

Whether the complainant had suffered damages as alleged if so
what relief the complainant is entitled to?
Issue No.1:-
5. Since there was no representation on behalf of the complainant, after giving sufficient opportunity the arguments of the opposite party heard. Both side documents perused. Orders passed on merit.
6. The complainant has filed his complaint seeking compensation for the alleged deficiency in service. This was denied by the opposite party.
7. The complainant has taken a policy covering the risk period from 21.7.07 to 20.7.08. The policy excludes certain disease. Ex.A2 is the copy of the policy. Ex.A3 is the bills. Ex.B1 to B4 reveals that the complainant got admitted for diffiulty in breathing and cough and took treatment for the ailment already excluded under the policy. In fact the complainant has not marked the discharged summary and purposely omitted to mark it before this Forum. Ex.B1 is a reply given by the Coimbatore Kidney Centre on 19.5.08. In that letter Hospital authorities had stated that the complainant, was first seen at the hospital on 20.1.03, had previous consultation at CABG Railway hospital, Chennai on 20.1.03, had breathlessness on 6.7.03, history of hypertension for 14 years, history of diabetes mellitus for 15 years. Ex.B2 will show that the complainant took treatment for the past so many years and the proposal form viz.Ex.B4 he has stated that he is fit and has got good health suppressing all the ailments. Hence the complainant has suppressed the material facts and obtained the policy the opposite party has rightly repudiated the claim which cannot be termed as deficiency in service. Hence the complainant is not entitled to get any amount based on insurance policy and not entitled to get any compensation. Hence this complaint is dismissed. No costs.

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

Consumer Case No.: 42 / 2006.
Date of filing : 14.09.2006.
Date of final order : 22.04.2009.
Present:
A) Sri Saurish Chakraborty President.

B) Smt.Swapna Kar Member.

C) Sri Swaraj Kumar Biswas Member.


Chandrani Chakraborty,
wife of Late Dulal Chakraborty,
Ashokepally, Raiganj, Uttar Dinajpur. Complainant.

versus

1. The New India Assurance Company Limited,
represented by the Divisional Manager,
Calcutta Division Unit – 511700,
4, Mangoe Lane (2nd Floor), Kolkata – 700001.

2. Golden Trust Financial Services,
16, R. N. Mukherjee Road, Kolkata – 700001.

3. The Manager,
Golden Trust Financial Services,
Malda Branch Office,
SBI Building, Malda.

4. The Manager,
Golden Trust Financial Services,
Raiganj Branch, Ukilpara, Uttar Dinajpur. Opposite Parties.

Judgment:

Date: 21.04.2009.

This case arises out of a petition of complaint filed Under Section 12 of the Consumer Protection Act, 1986 by the petitioner Smt. Chandrani Chakraborty on 14.09.2006 against the opposite parties, The New India Assurance Company Limited and others for an order to pay the sum assured of Rs.5,00,000.00 along with 10% interest per annum from the date of death of deceased and an award of Rs.1,00,000.00 as compensation and as litigation cost of Rs.5,000.00 and any other relief or relieves as the Forum deems fit and proper.

The complaint story in brief is that deceased Dulal Chakraborty obtained an insurance policy bearing No. 01106441 / 000100059162; amounting to Rs.5,00,000.00; covering the period from 15.12.2000 to 14.12.2015 under Group of Janata Personal Accident Insurance Policy. The complainant is one of the legal heirs (widow) of the said deceased policy holder.

Dulal Chakraborty was ran-over by a train at Farakka on 09.07.2005. After his death, the complainant being the widow having no source of income to maintain her family applied before the opposite parties to realize her claim by submitting all the necessary documents including the Claim Application. As she did not get any response from the opposite parties she sent several reminders and at last send one notice to the Insurer, The New India Assurance Company Limited Raiganj Consumers Forum (a N.G.O.) on 22.04.2006 but in vain. For the reason, as stated above the complainant has come before this Forum for getting the relief or relieves as per her prayer particularly against the opposite party No.1.

Opposite party No. 1 has contested the present complaint by filing one written version. The opposite party No. 1 particularly attacked the present complaint on certain legal grounds. But, its case has been narrated particularly in paragraph 9 of the written version. It is contended specifically that the opposite party No. 1 has not issued any Insurance Policy in the name of Late Dulal Chakraborty, but the Golden Trust Financial Services has issued the said policy under the Janata Personal Accident Policy scheme. It has further contended that there was a MOU between the opposite party No. 1 and the opposite party Nos. 3 and 4 regarding the terms and conditions of the policy. It has also referred a decision of Hon’ble High Court, Kolkata passed on 15.03.2006 in G. A. No. 312 of 2003 / in W.P. No. 2343 of 2002 (original side). It has been decided directing the opposite party No. 1 to dispose of the matter on merits as expeditiously as possible. According to the opposite party the accident faced by the deceased Dulal was a self inflicted one. So, it is concluded by the opposite party No. 1 finally that the complainant is not entitled to get any relief in this Forum.

On the other hand, opposite party No. 2, 3 and 4 contested the case by filing a written version. It has taken some legal objections and in fact admitted the insurance policy in favour of Dulal Chakraborty. It has further stated that they submitted claim papers to opposite party No. 1 and as per the provisions of Memorandum of understanding the settlement of the claim exclusively vested upon opposite party No. 1, that is the New India Assurance Company Limited and opposite party Nos. 2, 3 and 4 have no liability for the same. Hence the case merits dismissal as against these opposite parties.

To prove the case the complainant has filed an affidavit on evidence and also some documents. On the other hand no evidence and documents has been adduced by the opposite parties.

Decisions with reasons:

The affidavit-in-chief sworn by the complainant has gone in evidence, because no cross examination was conducted by the opposite party No. 1 over the contents of the affidavit. On perusal of the affidavit we do find the contents therein are in conformity with the facts stated in the petition of complaint. Further in support of her case complainant has filed a number of documents, which includes the Insurance Certificate issued by the opposite party No. 1 in favour of Late Dulal Chakraborty, post mortem report of the deceased, medical certificate of the deceased, first information of the accident and final report of the police. Beside these the complainant has also filed other documents like a letter, addressed to the President, Raiganj Consumers Forum on 9th March 2006, letter issued to the Divisional Manager of the opposite party No. 1 by Raiganj Consumers Forum on 02.06.2006, letter dated 30.05.2006 addressed to the Golden Trust Financial Services by the Divisional Manager of the Calcutta Divisional Office of the opposite party No. 1 and finally letter dated 19th September 2005 addressed to the complainant by the Regional Office of the opposite party No. 1. Now, taking the materials into consideration, we do find that the Insurance Certificate issued by the opposite party No. 1 in favour of Dulal Chakraborty since deceased. Here we also do find that the complainant has been the nominee of the said Insurance Policy, so, it is very difficult to accept the version of the opposite party No. 1 that no Insurance Certificate has been issued by it in favour of Dulal Chakraborty since deceased. The next contention of the opposite party No. 1 that there was a MOU in between the opposite party No. 1 and opposite party No. 2 Golden Trust Financial Services and as per the said MOU all the liabilities arising out of the Insurance Policy in question was to be shouldered by the opposite party No. 2. But it is very regrettable to say that the said MOU has not been produced by the opposite party No. 1 and all the opposite parties (2, 3 and 4) rather denied any such terms and conditions incorporated in the said MOU.

Next we find that it has been vehemently denied by the opposite party No. 1 that the deceased has faced the accident in the manner as stated by the complainant. According to the opposite party the accident was a self inflicted one. But Ld. Lawyer appearing for the opposite party No. 1 unfortunately has failed to explain, how the accident can be a self inflicted one. If we take this view of Ld. Lawyer we may question whether a self inflicted injury shall be an accidental or suicidal.

Be it noted here further that the Post Mortem Report, First Information Report and Investigation Report of the Police taking together has undoubtedly established that the victim Dulal Chakraborty has died due to a train accident.

Letter dated 9th March 2006 speaks of the requirement of the opposite party No. 1 for certain documents like Post Mortem Report, Final Police Report, Death Certificate, Documentary Proof from GTFS regarding the status of the claimant and lastly Attested Copy of the Certificate for the settlement of the claim of the petitioner. This letter has a reference to a writ application which was moved by GTFS before the Hon’ble High Court, Kolkata against the cancellation of the MOU between GTFS and the opposite party Insurer. But, this cancellation matter was stayed by the Hon’ble High Court. The matter was further taken up by the opposite party Insurer for reconsideration of the claim and that is why it has asked for the above stated documents from the President, Raiganj Consumers Forum.

Second letter of the opposite party Insurer dated 30.05.2006 addressed to M/S Golden Trust Financial Services has a reflection of the fact that the documents received by it from the Raiganj Consumers Forum ware sent to the Golden Trust Financial Services asking them to take necessary action as because the nominee of the deceased insured Dulal Chakraborty does not lodge any claim.

Both the letters referred above are the clear picture of the fact that the opposite party Insurer has been considering the claim matter put forward by the complainant.

Those letters referred above are the subsequent correspondence to the letter dated 9th September 2005 addressed to the complainant by the opposite party Insurer. Here we never find that the matter of claim has been dropped instantaneously, rather taken up for consideration. All these letters have established one fact that subsequent to the letter dated 19th March 2005 the opposite party Insurer has made some enquiry but, finally, as we find from the record, no information has been given to the complainant regarding the consideration of the payment of claim.

So, taking all these material into consideration we are of the view that the opposite party Insurer has not been acted in an open mind while dealing with the claim of the complainant. There is no any doubt to say that the complainant is the nominee of the deceased Dulal as per the Policy Deed. Even thereafter the claim has not been satisfied the reasons for non-payment of the claim given by the opposite party Insurer are not tenable at all.

So, in our view the complainant is entitled to get a relief as she prayed before this Forum.

Fees paid are correct.

Hence, ordered

That the Consumer Case No. 42/2006 is allowed on contest against the opposite party No.1 and dismissed on contest against the rest.

The complainant shall get an award of Rs.5,00,000.00 – sum assured in the policy in question. She also gets an order of litigation cost of Rs.1,000.00 against the opposite party Insurer.

The opposite party No. 1 shall pay the awarded sum of Rs.5,00,000.00 (rupees five lakhs) and the litigation cost of Rs.1,000.00 (rupees one thousand)within one month from the date of this order failing which an interest @ 6% will be levied upon the principal.

This case is finally disposed of.

Sh.Roshan Lal son of Sh. Mohan Lal aged 38 years resident of village Malhanu, Post Office Chunahan, Tehsil Sadar, District Mandi, H.P.

…Complainant


V/S

The New India Assurance Insurance Company Ltd Branch Office Hospital Road. Mandi,, District Mandi, H.P.

…..Opposite party

For the complainant Sh. Rahul Awsthi ,Advocate
vice Sh. R.P.Sharma Advocate
For the opposite party Sh. Sunder Goel, Advocate.


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

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 purchased a Swaraj Mazda goods carrier vehicle to earn his livelihood and registration No. HP-31B-0352 was allotted to it by the Registering and Licensing Authority Sundernagar. Said vehicle was insured with the opposite party with effect from 20-6-2007 to 19-6-2008. During the currency of the insurance policy, the vehicle met with an accident on 21-01-2008 per chance at Village Sanarli near Karsog as a result the vehicle got damaged badly. The opposite party was informed immediately. The complainant had submitted the claim with all relevant documents to the opposite party but the same was refused . The complainant had spent more than Rs.35,000/- for repairing the vehicle. The vehicle was off the road for about one month . The complainant had suffered due to non settlement of the claim which amounts to deficiency in service.With these averments , the complainant had sought a direction to the opposite party to pay Rs.35,000/- spent on repair and also to pay , Rs.55,000/- on account of deficiency in service.


2. The opposite party resisted the complaint by filing reply in which preliminary objections have been raised that the present complaint is no complaint , that the complaint is not maintainable in view of violation of driving clause envisaged under the terms and conditions of the insurance policy as the person driving the vehicle at the time of accident was not authorized to drive Medium Transport vehicle and the vehicle under reference is Medium goods vehicle and that the claim stood repudiated vide letter dated 17-6-2008 and was duly communicated to the complainant . On merits , it has been admitted that the vehicle of the complainant had sustained damages due to accident but the indemnity is refused in view of violation of the terms and conditions of the insurance policy because the driver was not found having authorized to drive the vehicle under reference. It has further been averred that the opposite party is only liable to pay the recommended damages determined by the surveyor and loss assessor subject to the terms and conditions of the insurance policy. The charge of deficiency in service levelled against it had been refuted. The opposite party had prayed for dismissal of the complaint .


3. The complainant had filed rejoinder reiterating the averments made in the complaint and controverting the averments made in the reply by the opposite parties.


4. We have heard the ld. counsel for the parties and have carefully gone through the entire record. From the perusal of the record it is ample clear that the only ground on which the claim of the complainant has been repudiated by the opposite party is that the driver of the vehicle was not having valid and effective driving license to drive the vehicle at the time of the accident .


5 Now the question which arises for determination before this Forum is as to whether the driver of the vehicle was holding a valid and effective driving license at the time of the accident or not. The perusal of the registration certificate Annexure O-1 shows that the vehicle is a medium goods vehicle having unladen weight of 2800 kilogram and laden weight of 8000 kilogram . It is not in dispute that driver of the vehicle at the time of the accident was Sh.Roshan Lal Kaushal. As per the driving license annexed by the opposite party itself as Annexure O-5 he was authorized to drive Light Motor vehicle
( Trans.) According to the opposite party since the vehicle was a Medium goods vehicle and the driver had been possessing a driving license authorizing him to drive light motor vehicle
( transport) therefore , the claim of the complainant had rightly been repudiated. At this juncture, we deem it proper to discuss the legal position attracted in a situation of this nature where the insurance claim has been repudiated by the insurer on the ground of having not a valid and effective driving license . In a case titled Anil Kumar Vs Oriental Insurance company 2008(1) CPC-126, decided by our own Hon’ble State Commission the complainant was owner of Swaraj Mazda vehicle and as per the registration certificate it was a medium goods vehicle . The driver of the vehicle was possessing driving license to drive light motor vehicle ( transport ). The Hon’ble State Commission has held that driver was duly licensed to drive the vehicle in question as there is no such category of the license to be issued to a driver authorizing him to drive a medium goods vehicle as per section 10 (2) of the Motor Vehicle Act,1988 ( For short : M.V. Act) . The relevant extract of the aforesaid judgment is reproduced as below:-

“6………………………………………………………….From the above definition coupled with Rule 3 of the Central Motor Vehicle Rules, framed under the Motor Vehicles Act, 1988, we find that there is no category of licence to be issued to a driver authorizing him to drive a medium goods vehicle as is the situation in the present case. In our opinion, and for determination of the present case, clauses (d) and (e) of sub section (2) of Section 10 extracted herein above, are relevant for adjudication of this case. Driver was authorized to drive L.M.V-NT as well as L.M.V-TRANS, therefore, he was authorized to drive a transport vehicle as per requirement of Section 10(2) of the Act supra. And as per Rule 3 of the Central Motor Vehicle Rules in the absence of any provision in that, behalf under Himachal Pradesh Motor Vehicle Rules, there is no category under the Act or the Rules for the grant of a driving, licence to the driver to drive a medium goods vehicle. Admittedly for driving a transport vehicle, endorsement is there as per Photostat copy of page 49 of the complaint file of the licence as Annexure R.5 relied upon and filed by the respondent itself.
------------------------------------------------------------------------------------------------------------------------------9.Licensing Authority has itself registered the vehicle to be a L.M.V. For driving such a transport vehicle, driver was duly authorized as is evident from Annexure R.5. Even the competent authority in law i.e. Under Motor Vehicles Act, 1988, has treated and registered the vehicle as L.M.V. And the driver being authorized to drive the same, the District Forum below did not deal with this aspect of the case at all. It seems to have been impressed by the fact that the vehicle in question was a medium goods vehicle and the driver was licensed to drive L.M.V.-TRANS. Thus, there is on the fault of the appellant keeping, in view the registration of the vehicle as L.M.V. by the competent authority under law.”



6 In the present case also , the complainant is owner of Swaraj Mazda vehicle and as per the photostat copy of the registration certificate it is a medium goods vehicle having unladen weight of 2800 kilogram. As per Annexure O-5, the driver was holding license to drive light motor vehicle (transport). Therefore as per requirement of section 10(2) of the M.V. Act , he was authorized to drive a transport vehicle . Since there is no category under the M.V.Act or the Rules for the grant of driving license to the driver to drive a medium goods vehicle , it cannot be said that the driver of the vehicle in question was not holding a valid and effective driving license because admittedly he was authorized to adrive Transport vehicle. Therefore , in view of the above decision of the Hon’ble State Commission, we have no hesitation to conclude that driver Sh. Roshan Lal Kaushal was holding valid and effective driving license to drive the vehicle involved in the accident and the claim of the complainant has been illegally repudiated by the opposite party which is deficiency in service on its part.


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 vehicle. The complainant in his complaint had claimed Rs.35,000/- but failed to adduce in evidence any repair bills or cash memo in support thereof .On the other hand the opposite party has placed on record Motor survey final report of Er. Vishal Kumar Gautam dated 24-2-2008 which shows that the estimated value of repair was Rs.24,227/- and he had recommended net amount payable in the sum of Rs.7514/-.The complainant had not specifically denied the assessment of the loss by Surveyor and Loss Assessor. Since the complainant had failed to even place on record any material or the bills of repair ,we are left with no other alternative except to accept the report of Surveyor and Loss Assessor , aforesaid .Moreover 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 Kiran 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 the loss suffered by the complainant with respect to the damage caused to the vehicle at Rs.7514/-.



8 The complainant had claimed Rs.50,000/- as compensation on account of harassment and mental tension, due to deficiency in service on the part of the opposite party. As discussed above the opposite party has been deficient in providing service to the complainant , therefore he is entitled to some reasonable compensation on this score . Hence , It would be in the interest of justice ,if we award a sum of Rs.5,000/- as compensation.

9 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.7514./- alongwith interest at the rate of 9% p.a. from the date of filing of the complaint till realization .The opposite party is further directed to pay Rs.5,000/- as compensation on account of harassment and Rs.2500/- as costs of litigation.

Vas Dev Singh aged 67 years son of Sh Harnam Singh resident of village Jain P.O.Bassi Kalan Tehsil and District Hoshiarpur.




complainant


vs.


The New India Assurance Company Limited, Nawanshehar through its Manager.


Opposite party
Complaint u/s 12 of the Consumer Protection Act, 1986.


Quorum: Sh.P.D.Goel,President,
Sh.A.S.Jauhar,Member.


Present; Sh B.K.Gupta, counsel for the complainant.
Sh Brij Thakur, counsel for the OP.
PER P.D.GOEL,PRESIDENT

1. The complainant namely Vas Dev 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 no.PB07-H-4651 was insured with the OP from 28.12.2006 to 27.12.2007.
2. It is the allegation of the complainant that on the intervening night of 22/23.6.2007, the said truck was stolen, as such, FIR no.134 dated 22/23.6.2007 u/s 379 IPC was got recorded in P.S, Model Town, Hoshiarpur. That the claim was lodged with the OP and all the requisite documents required for the settlement of the claim were supplied but the OP has failed to settle the claim. That legal notice dated 17.7.2008 was served upon the OP but of no avail, hence this complaint.
3. OP filed the reply Preliminary objections vis a vis maintainability, jurisdiction, locus standi and non joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant had sold the truck in question to Sh Karnail Singh son of Beli Ram r/o New Fatehgarh, Hoshiarpur prior to the alleged theft, thus, he is not the consumer of the OP. It is further replied that the truck in question was financed by Punjab Kashmir Finance Ltd. Jalandhar, as such, the financer is necessary party to the lis. However, it is admitted that the truck in question was insured with the OP on the alleged date of theft. It is further replied that FIR with regard to alleged theft was lodged by Sh Karnail Singh and the claim was also lodged by Sh Karnail Singh being the owner of the truck. The complainant failed to supply the non traceable report , as such, the claim has not been settled. The truck was also insured by Sh Karnail Singh and not by the complainant. That as per the certificate issued by the financier, dated 9.6.2008, Karnail Singh is the actual owner of the truck in question.
4. In order to prove the case, the complainant tendered in evidence affidavit of complainant Ex.C-X, FIR No.134 dated 22.6.2007 of Model Town, Hoshiarpur Ex.C-1, carbon copy of legal notice 17.10.2008 Ex. C-2, postal receipt Ex. C-3, AD Ex. C-4, reply to notice Ex.C-5, letter dated 23.9.2008 Ex.C-6, reply to notice dated 23.10.2008 Ex. C-7, translated copy of FIR Ex. C-8, letter dated 10.12.2008 Ex.C-9, untraced report Ex. C-10, letter dated 24.12.2008 Ex. C-11 and AD Ex. C-12 and closed the evidence.
5. In rebuttal, the opposite party tendered in evidence terms and conditions of the insurance policy Ex. R-1, copy of FIR no.134 of P.S Model Town, Hoshiarpur Ex. R-2, copy of RC Ex. R-3, copy of investigation report dated 25.6.2008 Ex. R-4, copy of letter dated 9.6.2008 Ex.R-5, copy of statement of Karnail Singh Ex. R-6, newspaper clipping Ex. R-7 and affidavit of Parvinder Singh Ex.OP-8 and closed the evidence.
6. The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
7. The grouse of the complainant is that on the intervening night of 22/23.6.2007, the truck bearing no. PB07-H-4651 was stolen,and thereafter, the claim was lodged with the OP. The OP has raised the defence that the complainant had sold the truck in question to Sh Karnail Singh son of Beli Ram r/o New Fatehgarh, Hoshiarpur prior to the alleged theft, thus, he is not the consumer of the OP.
8. Admittedly, the trunk bearing no.PB07-H-4651 was insured with the OP on the date of theft i.e. on the intervening night of 22/23.6.2007. That the FIR with regard to alleged theft was lodged by Sh Karnail Singh.
9. Now the point for consideration is whether Sh Karnail Singh son of Beli Ram r/o New Fatehgarh, Hoshiarpur was the actual owner of the truck bearing No. PB07-H-4651 ? The answer to this is in the negative.
10. Ex. R-3 is the copy of RC of truck No. PB07-H-4651, which is in the name of Vasdev Singh- complainant. The insurance policy is Ex. R-1,which is in the name of the insured- Vasdev Singh. Ld. Counsel for the OP- Sh Brij Thakur, during the course of arguments has not disputed that the RC and the Insurance Policy are in the name of the complainant. The law is settled that the person in whose name a vehicle stands registered, is its owner for the purpose of insurance of the said vehicle. Section 2(30) of the Motor Vehicle Act, 1898 defines “ registered owner” A person in whose name the vehicle is registered is its owner for the purpose of insurance. Therefore,the mere denial of the ownership of the vehicle is not sufficient to repudiate the claim by the Insurance Company. Reliance placed on 1993 CPC, 478, Shri Ram Murti of Hissar vs. The Oriental Insurance Co. Hissar and 1994(1) CPC,372,M/s Enfield India Ltd. vs. Mr. N.P.Singh.The untraceable report is Ex. C-10 on the record.
11. Ld. Counsel for the OP vehemently argued that prior to the alleged theft, the complainant had sold the truck in question to Sh Karnail Singh son of Beli Ram r/o New Fatehgarh, Hoshiarpur . Reference was invited to the copy of FIR dated 23.6.2007 Ex. R-2. It was submitted that FIR was recorded on the statement of Karnail Singh son of Beli Ram , wherein he has stated that on 22.6.2007, he parked his truck at 9.30 p.m and at about 6.00 a.m.. the said truck was found missing. It was submitted that the FIR contains the first version with regard to alleged incident of theft. The careful scrutiny of FIR makes it clear that the truck was parked at 9.30 p.m. by Karnail Singh on 22.6.2007, and thereafter, at 6.00 a.m. it was found missing. Reference was also made to the report of investigator, Ex. R-4, wherein under head “result” vide column C & L, the investigator had stated that the truck was parked and locked by Karnail Singh. The Financier had also certified that Karnail Singh son of Beli Ram is the owner of the truck no. PB-07-H-4651. Ld. Counsel for the OP further made a reference to the certificate issued by Punjab Kashmir Finance Ltd. dated 9.6.2008,Ex. R-5, wherein it has been certified that as per record, the actual owner of truck no. PB-07-H-4651 is Karnail Singh, whereas the vehicle is registered in the name of Vasdev Singh. Ex. R-6 is a statement of Karnail Singh, wherein he has stated that he had purchased truck bearing no. PB-07-H-4651 from Vasdev Singh son of Harnam Singh. That on 22.6.2007, the said truck was parked in the plot . That on 23.6.2007 at 6.00 a.m, the said vehicle was found missing. The matter was reported to the police, and thereafter, FIR no. 134 dated 23.6.2007 was recorded.
12. Now, it is established on record that the investigator in his report Ex.R-4 had reported that the registered owner of the truck is Vasdev Singh son of Beli Ram. Likewise the Punjab Kashmir Finance Ltd. had also issued a certificate dated 9.6.2008 Ex. R-5,wherein it has been certified that Vasdev Singh son of Beli ram is the registered owner. The RC Ex. R-3 and the insurance policy Ex.R-1 also prove on record that Vasdev Singh- complainant is the registered owner of the truck bearing no.PB07-H-4651.
13. Admittedly, the OP has neither produced Sh Karnail Singh as witness in the court nor has produced his affidavit on the record to prove that prior to the alleged theft, the truck bearing no.PB07-H-4651 was sold to him by the complainant, therefore, the statement of Karnail Singh, Ex. R-6 is not sufficient to prove that he was the owner of the truck in question, especially when the complainant has been recorded as registered owner of the truck in the RC and insurance policy Ex.R-3 and R-1 respectively. The fact that the FIR had been lodged by Karnail Singh with regard to the alleged theft is not sufficient to prove that said Karnail Singh is the owner of truck in question. More so, a person in whose name a vehicle stands registered, is its owner and Section 2(30) of the Motor Vehicle Act, 1898 also speaks that a person in whose name the vehicle is registered is its owner for the purpose of insurance, consequently, it is held that the complainant was the registered owner of the truck in question on the date of theft i.e. 22/23.6.2007.
14. It has already been held that the OP has failed to prove that Karnail Singh son of Beli Ram was the owner of the truck bearing no.PB07-H-4651, therefore, the ratio of the law laid down in recase M/s PHUL BUS SERVICE (Regd.)RAMPURA VS FINANCIAL COMMISSIONR & others. 1968, PLR, 323, is not attracted to the facts and circumstances of the present case.
15. The perusal of the insurance policy Ex. R-1 reveals that the vehicle was insured for Rs.3,50,000/- for the period from 28.12.2006 to 27.12.2007 and the theft took place on 22/23.6.2007 i.e. during the subsistence of the insurance policy. Since the insurance company itself has accepted the value of the vehicle at Rs.3,50,000/- on 28.12.2006, therefore, keeping in view the provisions contained in sections 146 and 196 of MVA,1898. It is held that since the insurance company is in dominant position,therefore, the OP cannot be allowed to act in an unreasonable manner. Thus, in the circumstances, the insurance company is bound by the value put on the vehicle while issuing the policy on 28.12.2006 , consequently, it is held that the insurance company is liable to pay Rs. 3,50,000/- to the complainant-insured. Reliance placed on 2008 SCCR 782, Dharmendra Goel vs. Oriental Insurance Co. Ltd.( Supreme Court).No other point was argued or urged .
16. As a result of the above discussion, it is held that the OP has illegally repudiated the claim of the complainant,which amounts to deficiency in service,with the result, the complaint is accepted and the OP is directed to pay the claim amount of Rs.3,50,000/- to the complainant with interest @ 9% per annum from the date of complaint i.e 8.1.2009 till realization alongwith litigation expenses of Rs.1000/- within one month from the receipt of copy of the order.

1. Amrik Singh aged about 46 years s/o Sh.Tarlok Singh r/o VPO Bhatnoora Lobana Tehsil and District Jalandhar (Punjab).
2. Kulbir Singh s/o Sampuran Singh r/o Gobind Nagar, Behind Govt. College, Urmar Tanda, Tehsil Dasuya District Hoshiarpur(Punjab).
   

Complainants


vs.

1. The New India Assurance Company Ltd. Bharat Nagar Chowk, Ludhiana 141001 through its Sr.Branch Manager.
2. The New India Assurance Company Ltd, 4th floor, Surya Tower,108, The Mall, Ludhiana-141001 through its Regional Manager.
3. The New India Assurance Company Ltd, Hoshiarpur through its Sr. Branch Manager.
4. Tata Finance Ltd.,3rd floor, SCO-123, Feroz Gandhi Market, Ludhiana through its Manager.

opposite parties

Complaint u/s 12 of the Consumer Protection Act, 1986.


Quorum: Sh.P.D.Goel,President,
Sh.A.S.Jauhar,Member.
Mrs.Vandna Choudhary, Member.


Present; Sh D.S.Sandhu, counsel for the complainant.
Sh V.K.Gupta, counsel for OP No.1 to 3.
Sh Lokesh Puri, counsel for OP No.4.



PER P.D.GOEL,PRESIDENT

1. The complainants have 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 complainant No.1 purchased mini bus bearing registration no.PB-08-AN-5833 alongwith documents from complainant No.2- Kulbir Singh son of Sampuran Singh r/o Gobind Nagar,Urmur Tanda Tehsil Dasuya District Hoshiarpur on 24.1.2005. The said vehicle was hypothecated with OP No.4- Tata Finance Ltd.. That said Kulbir Singh and Amrik Singh jointly applied for the transfer of ownership of the said vehicle alongwith right of regular stage carriage permit no.442/Mini/Jal in favour of complainant No.1 to the Secretary, Regional Transport Authority, Jalandhar.
2. That complainant No.1 got insured the said vehicle from OP No.1 for the period from 6.1.2004 to 5.1.2005, 5.1.2005 to 4.1.2006 and 12.5.2006 to 5.1.2007. It is the case of the complainants that the said bus met with an accident on 21.10.2005 at about 4.15 p.m. in the area of village Nandachaur P.S.Bullowal Tehsil and District Hoshiarpur. The mini bus got damaged in the said accident. That FIR No.174 dated 21.10.2005 u/s 279, 337, 304-A and 338 IPC was registered at P.S.Hariana District Hoshiarpur on the statement of one Balvir Singh s/o Jagat Singh r/o VPO Bhatnoora P.S.Bhogpur District Jalandhar, who was travelling in the said bus at the time of accident.
3. It is the allegation of the complainant No.1 that he spent Rs.1,25,000/- on the repair of the said bus. The complainant No.1 made a request to OP No.1 to settle the claim but of no avail . It is further the allegation of the complainant No.1 that he is entitled for the damages for the period the vehicle remained off the road due to non settlement of the claim by OP No.1, hence this complaint.
4. OPs Nos.1,2 & 3 filed the joint reply. Preliminary objections vis-a-vis maintainability, jurisdiction, cause of action, non joinder of necessary parties, limitation and that the alleged driver Gurjit Singh was not in possession of a valid DL were raised. On merits, the claim put forth by the complainants has been denied. It is replied that Amrik Singh was the registered owner of the said vehicle, per registration certificate. On 1,3.2004. Amrik Singh sold the said mini bus to Kulbir Singh and the same was transferred in his favour on 18.1.2005. The route permit on 20.1.2005 was in the name of Kulbir Singh. Since Kulbir Singh purchased the said vehicle from Amrik Singh, therefore, he became its owner on 18.1.2005, as such, the claim of Amrik Singh that Kulbir Singh sold the said vehicle to him is false and not tenable. That after the alleged accident, Kulbir Singh and Amrik Singh prepared the false documents with intention to get false claim from the replying OPs. However, it is admitted that the said bus was insured with the replying OPs from 5.1.2005 to 4.1.2006 in the name of Amrik Singh but the said vehicle was sold by him to Kulbir Singh and RC was also transferred in the name of Kulbir Singh on 18.1.2005 but no information to this effect was given to the replying OPs , as such, the complaint is not maintainable.
5. It is further replied that on receipt of information, M.L.Mehta & Co. was appointed to assess the loss . The loss to the said vehicle was assessed at Rs.81,148.56p but the claim was repudiated as Amrik Singh- complainant was not the registered owner of the said bus at the time of alleged accident.
6. OP No.4 filed a separate reply. The various preliminary objections were raised. However, it is admitted that the vehicle in question was under hypothecation agreement with the replying OP. The replying OP has issued NOC due to premature settlement of the account on 5.1.2007, as such, the replying OP was not a necessary party to the lis.
   
   The OP No.1 is under legal obligation to compensate the complainant.
7. In order to prove the case, the complainants tendered in evidence the copy of RC Ex. C-1, affidavit with regard to transfer of vehicle Mark C-2, affidavit of Kulbir Singh Mark C-3, copy of form no.32 Mark C-4, application dated 22.2.2005 Mark C-5, copy of permit Mark C-6, insurance policy Ex.C-7, insurance policy from 6.1.2004 to 5.1.2005 Mark C-8, from 5.1.2005 to 4.1.2006 Mark C-9, from 12.5.2006 to 5.1.2007 Mark C-10, the schedule of payment Ex.C-11, sumulated pre matured termination dated 30.9.2006 Ex.C-12 copy of FIR Mark C-13, bill dated 25.1.2006 Ex.C-14, dated 25.2.2006 Ex.C-15, dated 29.1.2007 Ex. C-16, dated 25.1.2006 Ex. C-17 and affidavit of complainant Ex. C-18, affidavit of Kulbir Singh Ex. C-19, copy of RC Mark C-20, copy of joint application for transfer of vehicle Mark C-21, copy of affidavit of Kulbir Singh Mark C-22 and copy of general power of attorney Mark C-23 and closed the evidence.
8. In rebuttal, the opposite parties Nos.1,2, & 3 tendered in evidence affidavit of Parvinder Singh Ex. R-1,Ex.OP-2, affidavit of M.L.Mehta Ex. R-2, report of surveyor Mark-A, letter dated 12.2.2006 Ex. R-3 and insurance policy Ex. R-4 and closed the evidence. The OP No.4 tendered in evidence affidavit of Johnson Andrews Ex. OP-1 and closed the evidence.
9. The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.

1. The point which calls decision from this Forum is whether the complainants are entitled to get the claim i.e. insured value of the vehicle in question? Admittedly, the vehicle in question had been insured and that the cover note is not disputed. The present complaint has been filed jointly by complainants i.e. by the original owner and also by the purchaser of the vehicle. The law is settled that the claim raised by the original owner -insured is a valid claim. Reliance placed on United India Insurance Co. Ltd.and another vs. Manjit Singh 2007(2)CLT,166,.
2. The OPs Nos.1,2,3 have raised the preliminary objection that the driver of vehicle no. PB08-AN-5833 was not holding a valid and effective driving licence at the time of accident. The Insurance Company has examined Mrs.Amarjit Kaur , clerk of office of DTO, Hoshiarpur as RW-1 on 7.2.2008, who had stated on oath that entry no 12593/REN dated 17.2.2004 stands in the name of Gurjit Singh son of Iqbal Singh r/o VPO Talwara District Hoshiarpur . She has further stated that old license no.was 7468/R/96-97. She has also stated that entry of renewal bearing no.7468/R/96-97 is not in the register as these pages are missing but she has brought the applications from which the entries are made in the renewal register and as per application, Sr. No.7468 dated 6.2.1997 had been entered in the name of Swaran Singh son of Manjit Singh r/o ward no.7, Garhshanker District Hoshiarpur which bears old no.7339/RDL dated 4.1.1994 valid upto 3.1.1997.
3. The statement made by Smt Amarjit Kaur as RW-1 makes it clear that entry no 12593/REN dated 17.2.2004 was made in the name of Gurjit Singh son of Iqbal Singh r/o VPO Talwara District Hoshiarpur on the basis of old license no. 7468/R/96-97. As per application, referred to above, Sr. No.7468 dated 6.2.1997 relates to Swaran Singh son of Manjit Singh r/o ward no.7, Garhshanker District Hoshiarpur. This witness has also clarified that entry of renewal bearing no.7468/R/96-97 is not in the renewal register as these papers are missing but she has brought the applications, from which, the entries are made in the renewal register.
4. Now it is established on record that though the relevant pages of the renewal register with regard to entry no. 7468 /R/96-97 are missing but the application, from which, the entry is made in the renewal register proves that said entry of Sr No.7468 dated 6.2.1997 is in the name of Swaran Singh son of Manjit Singh r/o ward no.7, Garhshanker District Hoshiarpur. The said statement made by Smt Amarjit Kaur goes unrebutted, as such, it is held that the entry no 12593/REN dated 17.2.2004 qua Mark-A in the name of Gurjit Singh son of Iqbal Singh r/o VPO Talwara District Hoshiarpur is not a genuine entry as the entry of old no 7468/R/96-97 on the application is in the name of Gurjit Singh son of Iqbal Singh r/o VPO Talwara District Hoshiarpur, therefore, it can legitimately be concluded that the renewal of license of Gurjit Singh vide entry no. 12593/REN dated 17.2.2004 had not been made on the basis of old entry no. 7468/R/96-97, which is in the name of Swaran Singh.
5. The law is settled that where the license of the driver is found fake,the Insurance Company had a legal right to repudiate the claim. Reliance placed on 2008(1)ACJ,I, United India Insu.Co. vs. Davinder Singh.
6. It will not be out of place to state that no Licensing Authority has the power to renew a license on the basis of old license, which is not in the name of the person, who had applied for the renewal of the license. In this case, the license of Gurjit Singh was renewed vide no. 12593/REN dated 17.2.2004 on the basis of old license no.7468/R/96-97, which is in the name of Swaran Singh, therefore, the said renewal cannot transform a valid renewal of the license in favour of Gurjit Singh as the old entry no.7468/R/96-97 on the basis of which the said renewal was made is in the name of Swaran Singh s/o Manjit Singh.
7. As a result of the above discussion, it is held that the driver of the vehicle bearing no. PB08-AN-5833 was not holding a valid and effective driving license at the time of accident, therefore, the complainants are not entitled to get any claim from the OP,with the result, the complaint is dismissed. No order as to costs.

PER P.D.GOEL,PRESIDENT

1. The complainant namely Tarlok 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 complainant purchased Lancer Car bearing registration no. HR-06-H-3721 from one Sukhwinder Singh son of Gurdial Singh r/o village and post office Moron Tehsil Philour District Jalandhar. It is the case of the complainant that he signed proposal form and made the payment of premium amount of Rs.14,883/- to the OP-The New India Assurance Co. Ltd,.
2. It is the allegation of the complainant that the OP with malafide intention issued policy no. 361603/31/05/01/00007758 in the name of previous owner- Sukhwinder Singh . That on the unlucky day of 3.1.2007, the said car met with an accident .The complainant lodged the claim with the OP alongwith necessary documents. The OP deputed the surveyor, who assessed the loss to the vehicle to the tune of Rs.2 lac only.
3. It is further the allegation of the complainant that he received letter dated 5.3.2007 that the insurance policy was in the name of previous owner, as such, he had no insurable interest .The complainant approached the OP with the request to settle the claim but of no avail. It is further the allegation of the complainant that OP had illegally repudiated the claim, hence this complaint.
4. OP filed the reply Preliminary objections vis a vis maintainability, jurisdiction, non joinder of necessary parties and resjudicata were raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that policy no. 361603/31/05/01/00007758 was the renewal of old policy valid from 28.3.2006 to 27.3.2007. It is denied that the complainant got the car insured from the OP on payment of premium. That as per record, Sukhwinder Singh had got the car insured and the complainant has got no concern with it. It is replied that the claim was lodged by Sukhwinder Singh and not by the complainant. That the OP deputed the surveyor to assess the loss. The surveyor assessed the loss to the tune of Rs. 2 lac.
5. It is further replied that the claim was repudiated vide letter dated 5.3.2007 as the registered owner of the vehicle is Tarlok Singh but the insurance is still in the name of Sukhwinder Singh. The vehicle was transferred in the name of the complainant on 31.7.2006. However, the insurance policy was not transferred in his name, hence the claim is not payable. It is further replied that Simarjit Singh, the driver of the vehicle was not having a valid DL at the time of accident, hence, the claim is not payable on this count also.
6. In order to prove the case, the complainant tendered in evidence affidavit Ex.C-1, special power of attorney in favour of Amar Singh Ex.C-2, copy of order dated 24.6.2008 Mark C-3, repudiation letter Mark C-4, insurance policy Mark C-5 and closed the evidence.
7. In rebuttal, the opposite party tendered in evidence insurance policy Ex. R-1, survey report dated 15.1.2007 Ex.R-2, repudiation letter Ex.R-3, claim form Ex.R-4, copy of DL Mark R-5, claim intimation letter Mark R-6, copy of RC Mark R-7 and affidavit of Parvinder Singh Ex.R-8 and the evidence of the OP was closed by the order of the Forum on 3.3.2009.
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. That the complainant purchased Lancer Car bearing registration no. HR-06-H-3721 from one Sukhwinder Singh son of Gurdial Singh. It is the grouse of the complainant that the OP with malafide intention issued insurance policy in the name of previous owner- Sukhwinder Singh, though the payment of premium amount of Rs.14,883/- was made by him. That the said car met with an accident .The complainant lodged the claim with the OP. It is the allegation of the complainant that the OP wrote a letter dated 5.3.2007 that the insurance policy was in the name of previous owner, as such, he had no insurable interest .It is further the allegation of the complainant that OP had illegally repudiated the claim. The OP has admitted that policy no. 361603/31/05/01/00007758 was issued. . It is denied that the complainant got the car insured from the OP on payment of premium. That as per record, Sukhwinder Singh had got the car insured and the complainant has got no concern with it. The claim was repudiated vide letter dated 5.3.2007 as the registered owner of the vehicle is Tarlok Singh but the insurance is still in the name of Sukhwinder Singh. The vehicle was transferred in the name of the complainant on 31.7.2006. However, the insurance policy was not transferred in his name, hence the claim is not payable. The Insurance Company has also raised the plea that Simarjit Singh, the driver of the vehicle was not having a valid DL at the time of accident.
10. Now the point which calls decision from this Court is whether the OP-Insurance Company was justified to repudiate the claim in question? The answer to this is in the negative.
11. The OP has admitted that complainant- Tarlok Singh was the registered owner of the vehicle. However , the Insurance Company had repudiated the claim qua Ex.R-3 on the ground that the insurance policy Ex.R-1 is in the name of Sukhwinder Singh and has not been transferred in the name of the complainant.
12. The law is settled that on transfer of a vehicle, the benefit under the insurance policy in force will automatically accrue to the new owner . It is an admitted fact that on the date of accident i.e. on 3.1.2007, the insurance policy was in subsistence i.e. w.e.f. 28.3.2006 to 27.3.2007. It is an admitted fact that the vehicle in question had been transferred in the name of the complainant but the insurance policy had not been transferred in his name.
13. This being so, the Insurance Company has no legal right to repudiate the claim on the ground that the insurance policy had not been transferred in the name of new owner- complainant on the date of accident. Reliance placed on Shri Narayan Singh vs. New India Assurance Co. Ltd., revision petition no.556 of 2002 decided on 22.5.2007 by the Hon'ble National Commission, New Delhi. Faced with this type of situation, , the OP was not legally competent to repudiate the claim of the complainant on the ground that the insurance policy on the date of accident had not been transferred in his name.
14. The Insurance Company has also raised the plea that Simarjit Singh, the driver of the vehicle was not having a valid DL at the time of accident. The record of the case was perused. There is nothing on the record to prove that Simarjit Singh, the driver of the vehicle was not having a valid DL at the time of accident, More so, the learned counsel for the OP during the course of arguments had also conceded that the OP has not produced any evidence to prove that the driver at the time of accident was not holding a valid driving licence . thus, it is held that the OP has failed to prove that the driver of the vehicle was not having a valid DL at the time of accident,
15. The report of the surveyor is Ex.R-2 qua which he has assessed the loss to the tune of Rs.2 lac. The complainant has not produced any evidence to rebut the report of the surveyor, as such, the report is to be accepted as the surveyor is an expert and also an independent person to assess the damage caused to the vehicle of the complainant , thus, we are of the opinion that the claim of the complainant can be allowed on the basis of the survey report Ex.R-2.
16. As a result of the above discussion, it is held that the OP was not justified in repudiating the claim of the complainant, which amounts to deficiency in service, with the result, the complaint is accepted and the OP is directed to pay the claim amount of Rs.two lac to the complainant with interest @ 9% per annum from the date of complaint i.e. 7.8.2008 till realization alongwith litigation expenses of Rs.1000/- within one month from the receipt of copy of the order.

A.B. Motors Pvt. Ltd. 658, Industrial Area A, G.T. Road, Sherpur Bye pass Ludhiana through Sh. Jasbir Singh son of Sh. Gurcharan Singh employee of the complainant duly authorised vide resolution.
(Complainant)
Vs.

1. The New India Assurance Company Limited D.O. No.12122,22; Mittal Chambers 2nd Floor, Naraiman Point, Mumbai, through its Chairman.

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

3. The New India Assurance Co. Ltd. D.O. No.121222,22, Mittal Chambers 2nd Floor, Nariman Point, Mumbai, through its Divisional Manager.

4. Ford Credit Kotak Mahindera Ltd. 36-38-A, Nariman, 227, Nariman point, Mumbai having its Regional office at S.C.O. 122, Feroze Gandhi Market, Ludhiana through its Manager/M.D. Etc.
(Opposite parties)

Complaint under section 12 of the Consumer Protection Act, 1986.
….
Quorum:
Sh. T.N. Vaidya, President.
Sh. Rajesh Kumar, Member.

Present:
Sh. Harvinderpal Singh Advocate for the complainant.
Sh. V.K. Gupta Advocate for opposite parties no.1 to 3
Sh. P.S. Gumber Advocate for OP No.4.

O R D E R
T.N. VAIDYA, PRESIDENT:


1. Complainant company dealing in sale of cars, had insured their stocks under floaters stock policy with opposite party vide policy no. 121500/46/02/00030 dated 10.6.2002 valid upto 9.6.2003. Policy covered risk against burglary, theft, fire, allied perils, accidental damage, house breaking and robbery etc. Car bearing engine number MAJ BXX NRTA 2A4 48596,diesel model, under the policy was also covered. Car was hypothecated with the opposite party no.4. The said car was stolen from Jalandhar on 25.1.2003, qua which FIR was registered. This happened when on 25.1.2003 two persons came to buy the car from showroom of the complainant and asked for test dive. Employee of the complainant Sh. Sushant Rishi gave trial of the car and after reaching, parked this outside the office. They requested Sh. Sushant Rishi to give trial of petrol model of the same car, as such, Sh. Sushant Rishi locked the car and came to the main gate for collecting the other car. In the mean time those persons opened the car and started driving the same towards Jalandhar City, inspite of the fact that the original keys of the vehicle were with Sh. Sushant Rishi. Matter was reported to the police, who after investigation, filed untraceable report. Claim of theft was lodged with the opposite party who delayed the matter for long time. This act of the opposite party is claimed to be deficiency in service by filing the present complaint under section 12 of the Consumer Protection Act, 1986 and sought direction against the opposite party to pay qua price of the stolen vehicle amounting to Rs. 6,96,000/- along with compensation of Rs.1,00,000/-.


2. Opposite parties no.1 to 3 in their reply averred that there is no deficiency in service on their part. They have rightly filed the claim as No Claim. Claim so lodged under the insurance policy was got investigated through investigator. Said investigator revealed grave negligence on the part of officials of the complainant. They had not adopted proper procedure before providing the car to unidentified persons for test drive. Had they adopted proper procedure, happening could have been prohibited. They acted negligently in keeping the stock vehicles outside the show room. Complainant was also guilty in not using the Demo car for test drive; by not keeping the keys of the vehicle in proper custody; not making entry of drive test vehicle in relevant register; not getting temporary registration number of stock vehicle before giving test drive. All these acts of negligence disentitle the complainant from claim. Hence, it was rightfully and legally filed as No Claim. Further pleaded that same vehicle was transferred to Jalandhar Branch on 22.1.2003 against gate pass no.1197. Complainant through manufacturer of the car had intimated theft from the premises of the dealer at Bhagat Ford, Ludhiana. hence, there was misrepresentation of facts by the complainant. Had the car was stolen from Ludhiana branch of the complainant, then FIR would have been lodged at Ludhiana. So, they are guilty of misrepresenting the facts


3. Opposite party no.4 in separate reply have made submissions that allegations of the complainant are matter of record.


4. To prove their respective versions, parties led their evidence by way of affidavits and documents.


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



6. In this case story is that two customers went to the show room of the complainant and sought a test drive of diesel vehicle. After having test drive, vehicle was parked and locked outside the show room of the complainant by its employee Sh. Sushant Rishi. He then went inside the gate of the show room to bring out petrol driven vehicle as requested by the customers, to have its test drive. In the mean time, when he came back, those persons opened the door and drove away the car towards Jalandhar city. Regarding this episode FIR Ex.C.5 dated 25.1.2003 was lodged. As per complainant, police was unable to trace the vehicle and filed untraced report, which complainant sent to opposite party vide its letter Ex.C.10 dated 15.7.2003.


7. After complainant lodged the claim with the opposite party, they engaged Sh. D.S. Chadha Investigator, who wrote letter Ex.C.7 dated 15.4.2003 to Branch Manager of the complainant at Jalandhar. Clarification was sought on 10 points. This letter was answered by the complainant vide Ex.C.8 dated 1.7.2003.


8. It was conveyed to the surveyor that the stolen car was a stock car and not Demo car and the stolen car was not earmarked for Demo. This car which was not meant for Demo was given for test drive on request of the customers. They were not recording kilometer reading in respect of the stock cars. Car was parked outside the show room where security guard is deputed around the clock. Lest key of the car got misplaced, other keys of the stolen car were kept in one ring in custody of security staff.


9. At this stage, we would prefer to refer admission of the complainant contained in para 4 of the complaint. It is stated in middle of the para that Sh. Sushant Rishi gave trial of the diesel car to the customer and after reaching back, they parked the same outside the office. Then customer requested to give trial of the petrol model of the vehicle. Sh. Sushant Rishi locked the car and came to the main gate for collecting the other car and in the mean time those persons opened the car and started driving the car towards Jalandhar City despite that original keys of the vehicle were with Sh. Sushant Rishi. This admission in para 4 of complaint of the complainant appears to us in conflict with their letter Ex.C.8 addressed to the surveyor and investigator of the opposite party. In para no.6 of the letter, it is mentioned that the car was parked outside the show room where security guard is deputed around the clock. If it was so, it was not possible for those customers to commit the theft of the car in the presence of the security guard. Had Mr. Sushant Rishi locked the car as claimed, then it would not have bee possible for those two customers to open and drive the car with the intention to commit theft. These are certain questions creating doubt in the mind qua authenticity of the allegations.


10. Hence, we feel that the matter is of complex nature, requiring recording of elaborate evidence in detail by providing chance to both the parties to cross-examine witness of each other. Adoption of such course is not feasible in summary enquiry like this. Also in order to go to depth and bottom of the case, we feel that matter should be investigated thoroughly, whether employee of the complainant contributed by their negligent act or conduct in commission of theft of the car or that colloborated with the thieves. In these circumstances we refrain to decide the complaint and relegate the complainant to get the matter decided by way of detailed enquiry by filing a civil suit in the court of competent jurisdiction.

Vijay Kumar S/o Sh. Babu Ram R/o Village Bangi Kalan, Tehsil Talwandi Sabo, District Bathinda. ... Complainant
Versus

1. New India Assurance Co. Ltd., Regd. Office New India Assurance Building, 87 Mahatma Gandhi Road, Fort, Bombay 400 001, through its Chairman.
2. New India Assurance Co. Ltd, Divisional Office, Hissar Road, New Bus Stand, Sirsa (Haryana) through its Divisional Manager
3. New India Assurance Co. Ltd., Divisional Office, The Mall, Bathinda, through its Divisional Manager

... Opposite parties


Complaint under Section 12 of the Consumer Protection

1. Act, 1986.
   

QUORUM


Sh. Pritam Singh Dhanoa, President
Dr.Phulinder Preet, Member
Sh. Amarjeet Paul, Member

Present : Sh. S.N. Baghla, Advocate, counsel for the complainant
Sh. J.D. Nayyar, Advocate, counsel for the opposite parties.

O R D E R


SH. PRITAM SINGH DHANOA, PRESIDENT

1. Sh. Vijay Kumar son of Sh. Babu Ram a resident of Village Bangi Kalan, Tehsil Talwandi Sabo, District Bathinda, has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (In short called the 'Act') against New India Assurance Company Limited through its Chairman and Divisional Managers Sirsa and Bathinda, for giving them direction to pay a sum of Rs. 1,50,000/- on account of Insurance claim alongwith interest at the rate of 18 percent per annum, compensation in the sum of Rs. 1,00,000/- for mental and physical harassment and any other additional or alternative relief, as deemed fit by this Forum.
2. Briefly stated the case of the complainant is that he secured comprehensive Insurance policy from the office of opposite party No. 2, vide Cover Note No.0022474 dated 18-10-1998 valid upto 17-10-1999 for his Car/Jeep, manufactured by Mahindra & Mahindra Marshal 750 D1 make, bearing Engine and Chassis No. DW-216995, purchased in the year 1998. He also paid premium in the sum of Rs. 11,784/-. The registration number of the Jeep of the complainant was subsequently allotted HR-23A/5412. On 14-11-1998, the complainant had gone to pay obeisance at Mata Vashno Devi Temple. At about 3.00 P.M. when the vehicle of the complainant was near Pangoli Chowk on Pathankot Shahpur Road, it met with an accident with Car bearing Registration No. PB-03B/0076, in which he and other occupants of the car sustained injuries. There was no negligence on the part of the driver of the complainant. At the instance of driver of complainant, DDR No. 10 was registered on 15-11-1998 in Police Station Shahpur Kandi, District Gurdaspur. He also conveyed intimation about the accident to opposite party No. 2, who deputed Sh. H R Atri, their surveyor & loss assessor to assess the damages caused to his vehicle on 15-11-1998, who after conducting thorough investigation and verification of driving licence of the driver of the complainant, submitted his report dated 17-11-1998. The complainant also deposited in the office of opposite party No. 2 bills issued to him after repair of the vehicle and details of amount spent for transportation from the place of accident and for purchase of its parts. He spent approximately Rs. 1,50,000/- for the said purpose and completed the requisite formalities required for payment of claim, but opposite party No. 2, refused to accede to his request and repudiated his claim vide letter dated 10-01-2000, on the plea that driving licence of the driver Paramjit Singh was not valid although the same was duly verified by their surveyor before submission of his report and it was valid and effective . The police official also stated in DDR No. 10 that there was no negligence on his part, so far taking place of accident, as such, repudiation of his claim by opposite party No. 2, is illegal and arbitrary and there is deficiency in service on their part as they have adopted unfair trade practice in repudiation of claim because of which complainant has been subjected to mental and physical harassment. Hence, this complaint.
3. On being put to notice, opposite parties filed reply admitting that complainant has secured comprehensive Insurance policy from opposite party No. 2 for the period 18-10-1998 to 17-10-1999 for his Jeep make Mahindra & Mahindra Marshal 750 D1, bearing Engine & Chassis No. DW-216995, Registration No. HR-23A/5412 vide Cover Note No. 0022474 dated 18-10-1998 and paid premium in the sum of Rs. 11,784/-. The factum of taking place of accident is also admitted but it is denied that driver of the complainant was not at fault and negligent in driving the vehicle. It is also admitted that he did not possess valid and effective driving licence. Supply of intimation about the accident and report submitted by the surveyor of the opposite parties Sh. H R Atri, after spot inspection and assessment of loss, is also not denied. It is submitted that the Jeep of the complainant involved in the accident has capacity to carry 10 passengers including driver and comes in the definition of Light Motor Vehicle (Omni Bus). The factum of registration of DDR in Police station concerned, is stated to be matter of record. It is submitted that complainant does not fall within the ambit of definition of consumer and his claim has rightly been repudiated by the opposite parties. Rest of the averments made in the complaint have been denied and prayer has been made for dismissal of the same with compensatory costs.
4. On being called by this Forum, to do so, learned counsel for the complainant furnished his affidavit Ex. C-1 and copies of documents Ex. C-2 to Ex. C-9 before he closed his evidence. On the other hand, learned counsel for the opposite parties furnished affidavit of Sh. Vinay Batra, Ex. R-1, and copies of documents Ex. R-2 to Ex. R-16, before he closed their evidence.
5. We have heard, learned counsel for the parties and perused the oral and documentary evidence adduced on record by them, carefully, with their kind assistance.
6. Learned counsel for the complainant Sh. S N Baghla, Advocate, has submitted that vehicle of the complainant at the time of accident was driven by his driver who possesses effective and valid driving licence, as evident from copy thereof and report submitted by the surveyor appointed by the opposite parties. As such, repudiation of claim by the opposite parties on that ground cannot be justified especially when they have alleged that there was negligence and carelessness in driving of his vehicle by driver of complainant. Learned counsel has further submitted that burden to prove that accident took place due to some commission or omission of driver of the vehicle of the complainant was upon the opposite parties, but their surveyor has reported that the amount is legally payable and they have not furnished his affidavit or the affidavit of any other person employed in the office of Licensing authority to prove that driver of the complainant did not possess valid driving licence. In support of his contention, he placed reliance upon 1998 (2) CPR 288 The New India Assurance Co. Ltd., Vs. Surinder Pal, wherein it was held by the Hon'ble State Commission of Himachal Pradesh that burden is of Insurance company to prove that driving licence supplied by the driver of the vehicle, involved in the accident, is not genuine. He also placed reliance upon 2005(2) CPJ 69 (NC) Prithvi Raj Vs. Oriental Insurance Co. Ltd., wherein it was held that if no willful negligence or omission on the part of the insured is proved, Insurance company is liable to settle the claim on the basis of loss assessed by the surveyor.
7. Learned counsel has drawn our attention to the contents of DDR tendered in evidence and has argued that even if this Forum comes to the conclusion that driver of the vehicle of the complainant was not authorised to drive his vehicle, the complainant is entitled to 75 percent of the amount allowed by the surveyor of the Insurance company after assessing the loss treating the same as non-standard claim as per guidelines contained in Clause '10' of the Procedural Manual of Motor Claims of Insurance Company. In support of his contentions, he placed reliance on 2001 (II) CPJ 53 (NC) National Insurance Company Limited Vs. Munni Lal Yadav, wherein claim preferred by the owner of the Jeep was repudiated by the Insurance company on the ground that driver at the time of accident was not possessing valid driving licence. The complaint was allowed by the District Forum but in appeal, the Hon'ble State Commission followed Clause '10' of Procedural Manual of Motor Claims of Insurance Company regrading payment of non-standard claims The Hon'ble State Commission was fully conscious of the guidelines for settling the claim where any of the terms of policy have not been adhered to. It was further held that those guidelines provides for settlement of such claims as non-standard and the percentages are duly indicated therein in case of own damage and third party claims. He also placed reliance on 2003(1) CPJ 204 (NC) Oriental Insurance Company Limited Vs. Ramdhan Aggarwal, wherein driver of the insured was not possessing valid driving licence. His claim was dismissed by Consumer Forum, but appeal was accepted by the Hon'ble State Commission directing the opposite party to pay 75 percent of loss assessed by the surveyor alongwith interest at the rate of 9 percent per annum on non-standard basis. It was held by the Hon'ble National Commission that no interference is warranted in revision. Learned counsel has further relied upon 2005(3)CPR 124 (NC) New India Assurance Company Limited Vs. Surinder Singh Khurana , wherein it was held that even if there is violation of provision of Motor Vehicles Act, it could be termed to be breach of warranty and claim is to be settled on non-standard basis. Learned counsel has urged that repudiation of claim against proposition of law laid down in the authorities and provisions quoted therein, amounts to deficiency in service and complainant is entitled to seek compensation for mental and physical harassment alongwith interest at the rate of 18 percent per annum and amount incurred in filing of the complaint.
8. On the other hand, Sh. J D Nayyar, Advocate, learned counsel for the opposite parties has submitted that as per report of concerned District Transport Officer, tendered in evidence , the driver of the vehicle of the complainant was entitled to drive only scooter, car and motorcycle but not a Jeep. Learned counsel has argued that complainant has allowed a person, not competent, to drive his vehicle, as such he is not entitled to payment of claim. Learned counsel has argued that Light Motor Vehicle and motor car had been defined in sub section 21 & 26 of Section 2 of Motor Vehicle Act, 1988, as such, until a person who is not specifically entitled to drive Light Motor Vehicle as defined in sub section 21, he cannot drive the same. Learned counsel has argued that as the driver of the complainant did not possess any licence to drive Light Motor Vehicle, as such claim has been rightly repudiated because of which there is no deficiency in service and complaint deserves to be dismissed with compensatory costs. In support of his contentions, he placed reliance upon 2008 (4) CPR 144 (SC) New India Assurance Co. Ltd., Vs. Prabhu Lal wherein it has been held that driver of the vehicle involved in the accident was holding Light Motor Vehicle licence without endorsement to drive Transport vehicle on account of which it was held that Insurance company was not liable to pay compensation.
9. For the sake of repetition, we feel that there is no necessity to repeat the admitted facts. The parties are at issue regarding entitlement of driver of the complainant to drive his vehicle and extent of compensation payable as per report submitted by the surveyor of the opposite parties. In order to adjudicate the matter in controversy, we think it proper to refer to Clause '10' of the Procedural Manual of Motor Claims applicable in case of own damage and third party claims, which reads as under :-
   “(10) Non-Standard Claims :
   Following types of claims shall be considered as non-standard and shall be settled as indicated below after recording the reasons :
   Sl.No. Description Percentage of settlement
   1. Under declaration of Deduct 3 years' difference in licensed carrying premium from the amount of
   capacity claim or deduct 25% of
   claim amount, whichever is
   higher
   
   2. Overloading of vehicles Pay claims not exceeding 75% beyond licensed carrying of admissible claim.
   Capacity
   3. Any other breach of warranty/ Pay upto 75% of admissible
   condition of policy including claim.”
   limitation as to use.

1. The bare reading of the above said provision reveals that in case of breach of any condition of the policies including limitation to use 75 percent of the admissible claim is to be declared. Since it is proved by the facts borne on record and no evidence has been led to the contrary by the opposite parties, therefore, it cannot be held that accident has taken place due to some omission or commission on the part of the driver of the vehicle of the complainant, as such, even if, he has not specifically granted licence to drive Light Motor Vehicle, the complainant is entitled to payment of amount on non-standard basis as has been held in the authorities relied upon by the learned counsel for the complainant and cited above.
2. The complainant has not clearly declared in his complaint or in his affidavit whether his vehicle, damaged in the accident, is a car or a Jeep. As per report of District Transport Officer concerned Ex. R-22, tendered in evidence by the opposite parties, Sh. Paramjit Singh, driver of the complainant had been issued driving licence to drive scooter, car or tractor and the same was valid from 06-09-1995 to 02-04-2014. He has even withheld the licence of the driver and also registration certificate of his vehicle. Therefore, adverse inference has to be drawn against him to the effect that he has intentionally withheld these documents having considerable bearing outcome of the complainant. Unladen weight of the vehicle of the complainant could be assessed from the registration certificate of his vehicle, but he has withheld the same. In the copy of DDR No. 10 registered at Police Station Shahpur, at the instance of the driver of the complainant, the vehicle of the complainant has been termed as a Jeep, which in our opinion falls within the definition of “Light Motor Vehicle” as defined in Sub Section 21 of Section 2 of Motor Vehicle Act, 1988. As such, we are unable to accept the plea of the complainant that his vehicle comes in the definition of car as defined in sub section 26 of Section 2 of the said Act. However, as mentioned in the copy of DDR No. 10 Ex. C-4, a scooterist came in front of a Maruti car coming from opposite direction and in order to avoid the accident, the person driving the said car, struck against the vehicle of the complainant which went out of control before it struck against an Ecquplutus tree. Even the surveyor of the Insurance company in his report Ex. C-8, has reported at page 2 that looking into the position of the vehicle at the spot, cause of accident narrated by the driver of the complainant can be believed and damages sustained by the vehicle is accidental in nature and conforms to the cause as told by him.
3. We have carefully gone through, the ratio judgements, relied upon by the learned counsel for opposite parties, but have come to the conclusion, that facts and circumstances thereof, were quite distinguishable from those of the case in hand. In the said case vehicle in question a Tata 709 was registered as a truck goods carrier and was described as public carrier unlike the case in hand in which the driver of the complainant did possess legal and valid driving licence and was carrying passengers therein. Therefore, the ratio judgement delivered by the Apex Court in the above said case does not advance the case of the opposite parties and repudiation of claim by the opposite parties was not justified.
4. The complainant has declared Insured's Declared Value of his vehicle in Cover Note Ex. C-2 as Rs. 3,62,000/- and the surveyor of the Insurance company has assessed the loss to the vehicle of the complainant as Rs. 94,068 and 75 percent amount comes to Rs. 70,551/-. He has assessed the cost of salvage value of parts which were replaced as Rs. 750/-.The net amount payable to the complainant for damages caused to his vehicle comes to Rs. 69,801/-. He is also entitled to payment of interest at the rate of 9 percent per annum from the date of repudiation i.e. 10-01-2000 till the date of actual payment. It is well settled that interest and compensation cannot be simultaneously awarded to the consumer. As such, we are not inclined to make payment to the complainant on account of compensation for mental and physical harassment in addition to interest at the above said rate. However, the complainant is entitled for a sum of Rs. 1,000/- on account of expenditure incurred by him for filing of instant complaint.
5. In the light of our above discussion, we accept the complaint and direct the opposite parties to pay a sum of Rs. 69,801/- to the complainant alongwith interest at the rate of 9 percent per annum from the date of repudiation of claim i.e. 10-01-2000 till the date of actual payment and a sum of Rs. 1,000/- on account of costs of filing of instant complaint, within a period of two months from the date of receipt of copy of this order.

CONSUMER COMPLAINT No. 06 / 2009

Settipalli Chennamma, W/o S. Raghuramudu,
Hindu, Milch Business, aged about 25 years,
Residing at S.C. colony, Bojjavaripalli Village,
Proddatur Mandal, Kadapa distrct. ….. Complainant.

Vs.

The Branch Managar, New India Assurance Co. Ltd.,
Branch Office – 511204, D.no. 8/83, 1st floor,
Gandhi road, Proddatur – 516 361. ….. Respondent.

This complaint coming on this day for final hearing on 29-4-2009 in the presence of Sri J. Pullaiah, Advocate for complainant and Sri D.V.S. Prasad, Advocate for respondent and upon perusing the material papers on record, the Forum made the following:-
O R D E R


(Per Sri S. Abdul Khader Basha, Member),

1. Complaint filed under section 12 of the Consumer Protection Act 1986.

2. The brief facts of the complaint are as follows:- The complainant being a Milk vender purchased the Milk produced animal for Rs. 35,000/- on 13-3-2008 at Tamilnadu state and spent Rs. 3,000/- towards transport charges. She applied for Chief Minister’s Pasukranthi Pathakam and the District Collector, Kadapa sanctioned Rs. 20,000/- through ING Vysya Bank for purchasing the said animal. The SC Corporation, Kadapa granted a sum of Rs. 15,000/- towards subsidy amount. The complainant and other villagers insured the said animal under the policy of the respondent company through ING Vysya Bank vise unit No. 1611204 and policy No. 61120/47/07/01/00000340 with identification No. 1995 for a sum of Rs. 25,000/- validity period from 25-3-2008 to 24-3-2011. The complainant spent Rs. 5,000/- towards purchase of Dana to the Animal and the said animal was giving 8 liters Milk per day. The complainant was selling the Milk @ Rs. 20/- per liter. On 19-8-2008 suddenly the said animal fell down on the ground. By seeing the same by husband of the complainant met Dr. Somasekhar, Animal Husbandry, Proddatur, who visited the house of the complainant and examined the animal and found the animal dead. The complainant informed the same to the Sarpanch of Bojjavaripalli and to the respondent and on the same day panchanama was conducted by the respondent company subordinates at that time the complainant came to know that the deceased animal has lost its tag and they measured the body of the deceased animal and found the measurements are correct. The complainant approached the respondent several times and requested for grant of insurance amount but the respondent postponing the matter day by day for that the complainant spent a lot of money towards her bus fares and her expenses and several demands made by the complainant. The respondent issued a letter dt. 29-10-2008 stating that the tag has not been submitted, as per conditions of the policy “No tag - No claim” hence, repudiated. The respondent intentionally not granted insurance policy amount with malifide intention to evade the insurance policy amount to the complainant and gave false reply notice and harassed the complainant financially as well as mentally. During hot hot arguments between the complainant and Manager of the insurance company, the Manager challenged the complainant that he will not pay the insurance amount towards deceased animal. The complainant insured her milch produced animal by purchasing insurance policy from the respondent company and the same is in force. But the respondent did not pay the insurance amount because of his negligence. The complainant suffered a lot and sustained a loss of Rs. 80,000/- due to the negligence of the respondent. The complainant furnished the claim particulars as follows.
Cost of the Milch Produce anile
Rs. 35,000/-
Transport charges
Rs. 3,000/-
Loss of Milk from 19-8-2008 to 26-11-2008 total 99 days per day 8 liters 99X8=792 liters 792 X 20 = 15,840/-
Rs. 15,840/-
Expenses for approaching the respondent
Rs. 3,160/-
Office damages
Rs. 18,000/-
Total
Rs. 80,000/-

Therefore, the complainant filed this complaint requesting this forum to direct the respondent to pay compensation of Rs. 80,000/- towards insurance amount along with expenses and damage incurred by her due to the trouble caused by the respondent and to grant cost of the complaint and such other relief as this forum deems fit in the interest of justice.

3. The respondent filed a counter denying all the allegations and stated that the complaint is bad for non-joinder of ING Vysya Bank as necessary party in whose favour the insurance policy issued by the respondent and the financier Bank had paid the premium directly to the respondent, not individually or directly to the complainant. If at all there is any grievance in the settlement of the claim it is the Finance Bank that has to file the complaint but not by the complainant directly. The Financier bank is a necessary party to this complaint as there is still outstanding loan dues by the complainant and the complaint is liable to be dismissed in limine. The insured product under the said policy is various mitch cows belonging to various beneficiaries and to have the identity of the cows, issued under the policy, a tag with Sl.No. which will be impressed to the ear of the cow and in the said process, the complainant’s cow was allotted tag No. 1995, which is also mentioned in the insurance policy. As per conditions incorporated in the insurance policy “Tag should be surrendered at the time of claim, otherwise it will be treated as no claim”. In the event of death of animal claim shall not be entertained unless the ear tag, it is surrendered to the company. In the event of loss of ear tag. It is the responsibility of the insured to give immediate notice to the company and get the animal re-tagged. As per conditions, the complainant has not surrendered the ear tag No. 1995 to the respondent, on that the respondent has rightly repudiated the claim of the complainant. The complainant never approached the respondent at any point of time and that there is no need for the Manager to challenge the complainant as alleged. The animal bearing tag No. 1995 was insured for a value of Rs. 25,000/- under the said policy and the respondent is not concern with all the heads that the complainant claimed in the complaint. There is no deficiency of service on the part of the respondent in not settling the claim of the complainant. The death of the animal took place on 19-8-2008 and the respondent repudiated the claim on 29-10-2008 and that the respondent has not taken much time for intimation. The respondent requested this forum to dismiss the complaint with costs in the interest of justice.

4. On the basis of the above pleadings the following points are settled for determination.
i.Whether the complainant is entitled to the relief as prayed for?
ii.To what relief?


5. On behalf of the complainant Ex. A1 to A9 were marked. Oral arguments were heard both sides.

6. Point No. 1 Ex. A1 is the Xerox copy of insurance policy No. 61120/47/07/01/00000340. Ex. A2 is the Xerox copy of proceedings of the Dist. Collector, dt. 27-6-2008. Ex. A3 is the Xerox copy of statement showing the list of beneficiaries. Ex. A4 is the Xerox copy of list of beneficiaries identified in Gramasaba for Chief Minister’s Pasukranti patakam. Ex. A5 is the Xerox copy of letter dt. 25-9-2008 of Sarpanch, Upparapalli addressed to the respondent. Ex. A6 is the Xerox copy of letter dt. 29-10-2008 issued by the respondent in favour of the complainant. Ex. A7 is the Xerox copy of description of animal issued by Veterinary Assistant Surgeon, Buddayapalli and Ex. A8 is the Xerox copy of letter of veterinary Assistant Surgeon, Buddayapalli addressed to the respondent. Ex. A9 is the Xerox copy of letter from Branch Head, ING Vysya Bank addressed to the respondent, dt. 10-10-2008.

7. As could be seen from the documentary evidence on record it is a fact that the complainant purchased the animal in question for Rs. 35,000/- on a loan of Rs. 20,000/- granted by the District Collector under Chief Minister’s pasukranti scheme and Rs. 15,000/- as subsidy from the SC Corporation, Kadapa. This animal along with the animals of other beneficiaries were insured the said animals of the complainant for a sum of Rs. 25,000/- vide Ex. A1 which has identification No. 1995. The only point which is vital in this case is solitary condition exists in Ex. A1 that the Tag should be surrendered at the time of claim, otherwise it will be treated as no claim. The complainant failed to produce the Tag No. 1995 of her animal along with her claim to the complainant and she failed to substantiate the reason for not producing the ear tag of the animal before the respondent for settlement of the claim. As per Ex. A8 the Veterinary Asst. Surgeon stated that the animal died on 19-8-2008 at 11.00 a.m and he conducted the post mortem of the animal and autopsy findings are recorded. So he requested the respondent to consider the claim in favour of the complainant and further mentioned that the tag is not available. In this letter the said doctor has not mentioned the tag No. and neither this doctor nor the complainant produced the post mortem certificate and autopsy findings recorded by the doctor before this forum. Ex. A7 is the printed proforma issued by the respondent company which is called Veterinary certificate and the Veterinary Asst. Surgeon, filled up all the columns with his own hands even he mentioned the tag No. of the animal though it was not available at the time of conducting autopsy. Ex. A7 is not the post mortem certificate but it is a proforma supplied by the respondent company which is filled up by Veterinary doctor, who alleged to have conducted autopsy on the dead body of the animal in question. At any point of time she has not convinced this forum in support of her complaint and there are no merits in the complaint. The complainant also failed to add the name of the Financier which is necessary party and the complaint is bad for non-joinder of necessary party in this case. In view of the above circumstances the complainant deserves no consideration in her favour.