P. Jayarami Reddy, S/o P. Venkata Reddy,

aged 56 years, Hindu, cultivation, residing at

Madhavaram Village & Post, Thavanampalle

Mandal, Chittoor District.
… Complainant

1. The ICICI Lombard General Insurance

Company Limited, rep., by its Authorized

Signatory, office situated at Authorized

Signatory, Regd., office situated at

ICICI Bank Towers, Bandra Kuria Complex

Mumbai – 400051.


2. The ICICI Lombard General Insurance Company

Limited, rep., by its Authorized Signatory, Regd.,

Office situated at ICICI Bank Towers,

Bandra Kuria Complex, Mumbai – 400 051.


3. The ICICI Lombard General Insurance Company

Limited, rep., by its Authorized signatory,

Branch office situated at Gandhi Road, Chittoor


(Amended as per orders in I.A.No.118/08 dt.05.11.2008)


4. Aragonda Apollo Medical & Education Research

Foundation, Aragonda, Thavanampalle Mandal,

Chittoor District.

… Opposite Parties.

ORDER

This is a complaint filed by the complainant U/Sec. 12 of C.P.Act for recovery an amount of Rs. 15,000/- towards medical expenses under medical bills under Insurance Policy together with interest at 12% p.a. and compensation of Rs. 50,000/-.

The complainant submits that in the year 2008 he obtained Insurance policy under “Kutumba Arogya Yojana” scheme and the opposite parties issued policy in favour of the complainant/ policy holder. The complainant is at liberty to take treatment in any one of the Hospitals mentioned in the Book let supplied by the opposite parties. The 1st opposite party is having branch office at Chittoor. In the month of March-06, the complainant took treatment at C.M.C Hospital, Vellore for the injuries sustained by him in his left hand and spent Rs. 30,000/-. As per the terms of the policy the policy holder is entitled to receive a sum of Rs. 15,000/- towards medical expenses. The opposite parties have not choosen to send the amount of Rs. 15,000/- to the complainant towards medical expenses. Though the complainant approached the opposite parties at Chittoor on many occasions and requested them to clear the medical bills. Due to the acts of the opposite parties the complainant suffered both mentally and physically. He gave legal notice dt. 26.11.2007 to the opposite parties calling them to clear the amounts towards medical bills and pay compensation of Rs. 50,000/- towards mental agony. Inspite of notice the opposite parties have not settled the medical expenses due under the Insurance policy. Hence the complaint is filed for recovery of medical expenses of Rs. 15,000/- as per the terms and conditions of the Insurance policy together with interest at 12% p.a and the complaint may be allowed.

The 1st opposite party filed Written Version denying the allegations in the complaint. He has not stated any specific case except denying the allegations of the complaint. This opposite party submits that the allegation that the complainant obtained a policy under Kutumba Arogya Yojana scheme and the opposite parties have allotted UNIO, ICICI Insurance Policy valid from 15.12.2005 to 14.12.2006 that the policy holder is at liberty to take treatment in any one of the hospitals mentioned in a book No.1 supplied by the opposite parties in the name of members guide and book on indicative list of network hospitals in south are all not true and correct.

The allegation that the complainant took treatment in C.M.C Hospital, Vellore for injuries sustained by him in his left hand that the policy holder is entitled to receive a sum of Rs. 15,000/- towards medical expenses by producing complaint has not sent all the original bills relating to the treatment taken by the complainant by way of Registered Post with Acknowledgment Due on 05.10.2006, which was received by the opposite parties are all not true and correct. This opposite party is added only after filing the complaint and the question of sending the original bills by Registered Post with Acknowledgment Due to this opposite party does not arise.

This opposite party stated that the complainant issued notice to the ICICI Lombard Insurance health plan limited, Hyderabad and filed the present complaint as against the said company only and subsequently complainant added this respondent/ company as parties by way of amendment and in view of the same the question of deficiency of service on the part of the opposite parties does not arise and the complainant is not entitled for the relief as prayed for in the present complaint. The complaint may be dismissed.

The opposite parties 2 & 3 are remained exparte.

The 4th opposite party filed Written Version alleging that the complainant obtained Insurance policy of Kutumba Arogya Yojana scheme and the opposite party No.1 issued the policy Union I.C.I.C.I, which is valid from 15.12.2005 to 14.12.2006 and the complainant as policy holder is at liberty to take treatment in any one of the hospitals mentioned in the member guide book issued to him. This opposite party is not aware of the treatment taken by the complainant in C.M.C Hospital, Vellore. The 1st opposite party sent a cheque bearing 88007 dt. 26.10.2006 with a covering letter dt. 26.10.2006 to this opposite party. As the complainant has not taken treatment at Aragonda Apollo Hospital, the cheque was returned to the 1st opposite party on 06.11.2006. This opposite party is unnecessary party and there is no deficiency in service on the part of it. Hence the complaint may be dismissed.
The Points for consideration are :

1) Whether the opposite parties refused to pay the medical expenses of Rs. 15,000/- under Kutumba Arogya Yojana scheme Insurance policy? If so, whether there is any deficiency of service on their part ?

2) Whether the complainant is entitled to recover the medical expenses Rs. 15,000/- together with interest at 12% p.a ?

3) Whether the complainant is entitled to claim compensation of Rs. 50,000/- towards deficiency in service? And

4) To what relief?

The complainant filed Chief Affidavit of PW-1 and Ex.A1 to A7. The opposite parties filed Chief Affidavit of RW-1 & RW-2 and Ex.B1 to B8.

The complainant and Opposite parties 1 & 4 are filed their Written Arguments.

Point Nos. 1 to 3:-

The counsel for the complainant contends that the complainant in the year 2005 obtained a policy under “Kutumba Arogya Yojana” scheme valid for the period from 15.12.2005 to 14.12.2006. As per the policy, the policy holder is at liberty to take treatment in any one of the hospitals mentioned in the booklet namely “Members Guide Book”. The complainant had taken treatment in C.M.C. Hospital, Vellore for the injury sustained by him to his left hand from 29.03.2006 to 05.04.2006 as inpatient and later as outpatient for a period of 25 days and spent Rs.30,000/-. The policy holder as per the terms of the policy is entitled to receive a sum of Rs.15,000/- towards medical expenses. Therefore on 05.10.2006, the complainant has sent all the original bills relating to his treatment to the opposite parties and the same were received by the opposite parties. But the opposite parties have not settled the medical expenses.

The counsel for 1st opposite party argued that the complainant has issued notice to the ICICI Lambard Insurance Health Plan Limited, Hyderabad and filed the present complaint against the said company only and subsequently the complainant added the 1st opposite party by way of amendment. Before filing the complaint, the complainant never made any oral demand or issued legal notice to this opposite party. Therefore the question of deficiency in service on the part of opposite parties does not arise and the complainant is not entitled to any relief.

Now the point for consideration is

Whether there is deficiency in service on the part of 1st opposite

party?


Ex.B2 is the “GROUP HEALTH (FLOATER) INSURANCE POLICY” of

ICICI Lambard General Insurance Company and same is mentioned in preamble of the policy, and the policy was signed by the authorized signatory of Group Health Insurance Policy for and on behalf of the ICICI Lambard General Insurance Limited at Mumbai. The name of the insured is 4th opposite party i.e. Aragonda Apollo Medical and Education Research Foundation. The 4th opposite party contended in its written version that the complainant has obtained a policy under “Kutumba Arogya Yojana” scheme and the opposite party No.1 issued policy. Ex.A1 is the Cashless Health Card of Kutumba Arogya Yojana issued in the name of complainant by ICICI Lambard Health Insurance, Family Health Plan Limited.


It is evident from Ex.B2 that ICICI Lambord Health Insurance is floated by 1st opposite party, ICICI General Insurance Company Limited and opposite party No.4 is the insured and it is also evident from Ex.A1 that the complainant is beneficiary under the scheme and Family Health Plan Limited is branch of ICICI Lambord Health Insurance. Ex.A2 is the Member Guide Book issued by Family Health Plan Limited showing the Network Hospitals in which the policy holders can take treatment.

Pw.1 in his Affidavit stated that he has sent Medical Bills relating to his treatment at C.M.C. Hospital, Vellore to the opposite parties on 05.10.2006 and the same was received by the opposite parties but in spite of repeated approaches to the opposite party No.3, the opposite parties have not settled the claim. On 26.11.2007, the complainant issued legal notice under Ex.A5 calling upon the opposite parties to settle the medical bills and for payment of compensation of Rs.50,000/- and the opposite parties sent reply letter dated 07.12.2007 i.e. Ex.A6 stating that they have settled the amount for Rs.15,000/- and they sent D.D.No.88007 dated 26.10.2006 in favour of the opposite party No.4 as the Group Policy is taken by opposite party No.4.


The counsel for 4th opposite party contends that as the complainant had not undergone treatment at Aragonda Apollo Hospitals, the cheque of the complainant along with other cheques were returned to opposite party No.1 with covering letter dated 06.11.2006 under Ex.B6, but the complainant contended that though he issued remainder on 20.11.2007 under Ex.A7 stating that he had not received any cheque for Rs.15,000/-, the opposite party No.1 has not taken any step to send the cheque to the complainant or to the C.M.C. Hospital, Vellore where the complainant has taken treatment.

The 1st opposite party in his Additional written arguments filed on 15.05.2009 has submitted in para 3 that the complainant made correspondence only with ICICI Family Health Plan Limited and not with 1st opposite party but admitted that claim of the complainant was settled by 1st opposite party for an amount of Rs.15,000/- and cheque was sent to the 4th opposite party for Rs.15,000/-. The 1st opposite party admitted its liability. Now the 1st opposite party cannot absolve its liability under the pretext that the complainant made correspondence with Family Health Plan Limited under Ex.A2 the Kutumba Arogya Yojana Card, the Family Health Plan Limited is shown as its identified branch.

Though the complainant has taken treatment in hospital specified by the insurer and the Medical bills submitted in the year 2006, the matter was not settled till date. Under Ex.B6 opposite party No.4 returned the cheque to opposite party No.1 stating that the complainant was not treated in Aragonda Apollo Hospital and the cheque may be sent to the hospital where to complainant was treated. The said fact was not disputed. The opposite party No.1 ought to have redirected the said cheque to the CMC Hospital, Vellore where the complainant took treatment or to the complainant, failure to do so amounts deficiency in service on the part of opposite party No.1.


Further Ex.A6 Reply Letter dated 07.12.2007 sent by Family Health Plan Limited to the complainant shows that the opposite parties received the claim form along with documents settled the claim for an amount of Rs.15,000/- and sent a cheque for the said amount to the 4th opposite party. When 4th opposite party returned the said cheque to the 1st opposite party, the 1st opposite party retained the cheque with it without taking any further action. Therefore the complainant is entitled to Rs.15,000/- towards Medical Bills with interest.

Further the 1st opposite party filed additional written arguments on 03.06.2009 stating that the complaint is barred by limitation against the 1st opposite party, and argued that the complainant took treatment at C.M.C. Hospital, Vellore in the month of March, 2006 and the petition for impleadment of opposite parties allowed on 05.11.2008 i.e. beyond 2 years. As per the material till receipt of Reply notice dt.07.12.2007 i.e. Ex.A6 sent by 1st opposite party, the complainant has no knowledge of sending the cheque to the 4th opposite party. More over, in this case, the claim of the complainant is settled and it is not the case of the repudiation and the claim is retained by 1st opposite party without taking any further action (namely) sending it to the complainant. Therefore there is no question of limitation. However the complaint is filed on 20.02.2008 i.e. after receipt of the reply notice Ex.A6 dt.07.12.2007. The 1st opposite party was added on 19.09.2008. The limitation starts only after receipt of the notice Ex.A6 i.e. from 07.12.2007. Therefore the complaint is within the limitation against 1st opposite party.


The complainant claimed a sum of Rs.50,000/- towards mental agony. Though the complainant submitted his claim on 05.10.2007 till this date the opposite party No.1 did not send the cheque for Rs.15,000/- to the complainant. Further the opposite party unnecessarily retained the cheque with it from November, 2006 without taking any further action and raised unnecessary arguments that the opposite party No.1 is not aware of the claim and that the claim is barred by limitation. In fact the opposite party No.1 already settled the claim in October, 2006 and issued the cheque for Rs.15,000/- and send it to opposite party No.4. After the complainant filed this complaint, opposite party No.1 ought to have honestly given the cheque for Rs.15,000/- to the complainant, instead raised unnecessary defence of limitation. Therefore the opposite party No.1 without any reason prolonged the issuance of cheque to the complainant and also enquiry in this complaint and harassed the complainant. In these circumstances the complainant is entitled to claim compensation for mental agony and this Forum granted Rs.5,000/-

Point No.4 :-

In the result the complaint is allowed in part directing the 1st opposite party to reimburse the medical bills and pay Rs.15,000/- (Rupees fifteen thousand only) to the complainant with interest at 12% P.A. from the date of legal notice dated 26.11.2007 till the date of realization and pay Rs.5,000/- (Rupees five thousand only) towards compensation and Rs.1,500/- (Rupees one thousand five hundred only) towards cost of the complaint within 6 weeks.

Siddalingappa Kama

S/o Hanumantha Kama,

Aged about years,

Residing at No.3,

Govindappa Building,

Near DSFS Hostel, Kammasandra,

Electronic City Post,

Bangalore – 560 100.

…. Complainant.

V/s

ICICI Lombard GIC Ltd.,

Represented by its Manager,

Madiwala, Bangalore.

…. Opposite Party


-: ORDER:-

This complaint is filed claiming Rs.67,746/- from the Opposite Party on the following grounds:-

The complainant had purchased Hero-Honda Passion bearing No.KA-01-EE-9805 of 2007 manufacturing from Nidhi Motors. For Rs.48,565/-. He had got the said vehicle insured with Opposite Party for the period from 15/06/2007 to 14/06/2008 with declared value as Rs.40,746/-. On 12/09/2007 at about 11.30 p.m. he parked the vehicle in front of his house, but the same was found missing at 6.00 a.m. on 13/09/2007. He made all the efforts to trace the vehicle and also informed Nidhi Motors. On the advise of Nidhi motors he also filed a complaint with Hebbagodi police station and thereupon a case in crime No.371/2007 was registered on 15/09/2007.

The police filed ‘C' report on 03/10/2008 and the copy of the report was provided to him on 20/10/2008. Immediately thereafter he made claim with the Opposite Party on 28/10/2008. By the letter dated 30/01/2009, the Opposite Party informed that due to the delay in intimation, they are unable to honor the claim. The complainant had not caused any delay as he was awaiting the result of investigation by police on his complaint and only when police filed ‘C' report he made claim with the Opposite Party. As on the date of theft, the insurance policy was in force and as such the Opposite Party is liable to pay the insured amount in terms of the policy. The Opposite Party is intentionally avoiding payment of the insured amount on the lame reasons and the same amounts to deficiency in service. He also issued legal notice dated 21/02/2009, but the same is also of no avail. Hence the complaint.



2. The claim for Rs.67,746/- includes the insurance amount of Rs.40,746/-, traveling expenses of Rs.2,000/-, mental harassment Rs.10,000/- expenses of filing the case Rs.5,000/- and loss of pay Rs.10,000/-.


3. In the version the contention of the Opposite Party is as under:-

The Opposite Party had insured the vehicle belonging to the complainant for the period from 15/06/2007 to 14/06/2008, for the first time since it was a new vehicle. The policy issued is subject to various terms, conditions, exceptions and limitations and the legal liability of the insurer is governed by the provisions of the policy of insurance. The Opposite Party has no knowledge that the vehicle in question was stolen between 11.30 p.m. on 12/09/2007 and 6.00 a.m. on 13/09/2007 as the intimation about the alleged loss was given only on 28/10/2008 nearly one year and 42 days from the date of the alleged theft. Nidhi Motors – the authorized dealer of Hero-Honda has nothing to do with the theft of the vehicle or abut the settlement of the claim. The claim made by the complainant was registered as No.MOT 00927525 dated 25/10/2008 and immediately the claim form was issued and an investigator was appointed who submitted the report on 25/12/2008. On scrutiny of records and investigation report, they repudiated the claim as per the letter dated 30/01/2009 on the ground of delay in intimation to the insurer as per condition No.1 of the terms and conditions.

There is no delay or negligence in attending to the claim of the complainant. Though the complainant claims that he received the copy of “C" report on 20/10/2008 he informed Opposite Party about the theft of the vehicle only on 25/10/2008 and submitted the claim form on 28/10/2008 after the expiry of the insurance policy which expired on 14/06/2008. The complainant has failed to act with utmost good faith attracting condition No.1 of the terms and conditions of the policy. The explanation offered by the complainant regarding delay in intimating the Opposite Party about the theft clearly shows that the complainant has not stated true facts. On these grounds, the Opposite Party has prayed for dismissal of the complaint.

4. In support of the respective contentions, both parties have filed affidavits. We have heard arguments on both side.


5. The points for consideration are:-

1. Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2. Whether the complainant entitled to the relief prayed for in the complaint?

6. Our findings are:-

Point No.1 : In the Affirmative

Point No.2 : As per final order,

for the following:-

-:REASONS:-

7. The fact that the complainant was the owner of Hero-Honda Passion bearing registration No.KA-07 EE-9805 and the said vehicle was insured with the Opposite Party for the period from 15/06/2007 to 14/06/2008 is admitted. From the copy of the FIR and the ‘C” report it is also seen that on 15/09/2007, the complainant gave complaint to policy alleging theft of the vehicle in question in the intervening night of 12/09/2007 & 13/09/2007. After investigation police filed “C" report on 03/10/2008 stating that in spite of all efforts, the accused as well as stolen property could not be traced. Thus, after investigation police submitted report that in spite of all efforts, the accused and the stolen property could not be traced. It is not the finding of the concerned policy that the complainant has given a false complaint.

Therefore we have no reason to disbelieve the contention of the complainant that during intervening night of 12/09/2007 & 13/09/2007 the vehicle which was parked in front of the house was stolen. The claim with regard to theft of a vehicle is also covered under the insurance policy. When the insurance policy was in force for the period from 15/06/2007 to 14/06/2008 it goes without saying that the theft of the vehicle during the intervening the night of 12/09/2007 & 13/09/2007 was within the period when the policy was in force. The only ground on which the Opposite Party repudiated the claim is the delay in intimating the loss of the vehicle namely the theft. No doubt the complainant intimated the insurance company about the theft of the vehicle on 25/10/2008 namely after police filed ‘C' report stating that in spite of efforts the accused as well as stolen property could not be traced, and more than one year had lapsed by the time complainant informed the insurance company about the theft of the vehicle on 25/10/2008. It may be that he wanted to make claim with insurance company only after the police investigated into the matter and hoping that the police may recover his vehicle.

But since police filed “C" report stating that the vehicle could not be traced, the complainant made claim with the insurance company. When the complainant had right to make claim under the insurance policy, it appears to us that the delay in giving intimation about the theft itself cannot be a ground for repudiating or denying the claim. The Opposite Party relies upon condition No.1 of the terms and conditions of the insurance policy to justify its action in repudiating the claim. The Opposite Party has also produced the copy of the terms and conditions governing the policy in respect of Two Wheeler. No doubt condition No.1 provides as under:-

“Notice shall be given in writing to the company immediately upon the occurrence of any accident or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution inquest or fatal injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or other criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the Company in securing the conviction of the offender”.



From the above condition it is seen that the insured is required to give immediate intimation in writing about the occurrence enabling the insured to make claim. But no period within which the intimation is to be given is not provided in the above condition. That being so when the fact that the vehicle belonging to the complainant was stolen is not denied in our opinion the delay in making claim itself could not have been made a ground to repudiate the claim.

Therefore in our opinion, the act of the Opposite Party in repudiating the claim of the complainant amounts to deficiency in service and therefore as per the terms of the policy, the complainant is entitled for the declared value of the vehicle. In the insurance policy the declared value of the vehicle is given as Rs.40,746/-. Therefore, the complainant is entitled to receive the said amount from the Opposite Party. However, having regard to the facts and circumstances of the case and having regard to the terms and conditions of the policy we hold that the complainant is not entitled to the other amounts claimed by him. In the result, we pass the following:-

-:ORDER:-

1. The complaint is allowed in part.

2. The Opposite Party is directed to pay Rs.40,746/- (Rupees Forty Thousand Seven Hundred and Forty Six Only) to the complainant towards the declared value of the vehicle. We direct both parties to bear their own costs. Compliance of this order shall be made within 08 (eight) weeks from the date of order.

Mr.Hasan Riyaz,

Aged about 28 years,

S/o K.Mayyadi,

R/at D.No.3-88, Pera House,

Near Mosque, Kenjar Post,

Mangalore Taluk. …….. COMPLAINANT



(Advocate: Sri.Vijay K.Suvarna)



VERSUS



1. The Authorized person

ICICI Lombard General Insurance

Company Ltd.,

Zenith House, Keshavarao,

Khadye Marg,

Opp: Race Course, Mahalaxmi,

Mumbai-400 034.

2. Authorized Person,

ICICI Lombard General Insurance

Company Limited,

TTK Healthcare Services Private Ltd.,

No.7, Jeevan Bhima Nagar Main Road,

H.A.L. 3rd Stage,

Bangalore-560 075. …. OPPOSITE PARTIES


The Complainant is having valid mediclaim policy issued by the Opposite Party bearing policy No.4034/FFN /02144127/00/000. It is submitted that on 27.8.2007 Complainant admitted to Colaco Hospital with the history of suffering from Typhoid and Urine Infection and discharged on 5.9.2007. It is submitted that, after the hospitalization he has intimated to the Opposite Party through fax No.022/23001167 and he has also given all particulars for filling up of his medi claim insurance i.e. Form No.7 on the date of admission and availed cash less facility.

But the Opposite Parties failed to consider the request of the Complainant and not provided cash less facility and thereafter issued a legal notice on 6.10.2007 despite of that the Opposite Parties not complied the same which amounts to deficiency in service. Therefore, the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to pay Rs.8,101/- medical expenses and also claimed 2,00,000/- as compensation and cost of the litigation expenses.

2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version admitted that the insurance policy was effective from 31.8.2006 to 30.8.2008. It is submitted that, on 5.9.2007 the Complainant sent pre-authorization request to TTK Healthcare Services Limited for seeking cashless facility of Rs.5,000/-. On 6.9.2007 the said TTK sought particulars but the Complainant did not respond and claim could not be processed and submitted that there is no deficiency in service and denied the expenses spent by the Complainant and prayed for dismissal of the complaint.

3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

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

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

(iii) What order?


4. In support of the complaint Sri Hasan Riyaz (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on them. Ex C1 to C33 were marked for the Complainant as listed in the annexure. One Sri.Dhruva Kumar, Area Legal Manager of Opposite Party No.2 filed counter affidavit and answered the interrogatories served on him. Ex R1 to R3 were marked for the Opposite Parties as listed in the annexure. Both the parties have filed written notes of arguments.

We have considered the oral/written arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative

Point No.(ii) & (iii): As per the final order.
REASONS

5. Points No. (i) to (iii):

The Complainant contended that, he had obtained individual medi claim policy as per policy No.4034/FFN/012/44/127/00/000 from Opposite Party No.1. Since he was suffering from Typhoid and Urine infection, he admitted as an inpatient from 27.8.2007 to 5.9.2007 at Colaco Hospital, Mangalore and spent Rs.15,000/- for medical and other incidental expenses. During the period of hospitalization the Complainant opted for cashless facility under the medi-claim policy and the same was intimated to Opposite Party in order to settle the claim by way of cashless settlement. The Opposite Party failed to comply the same and thereafter issued a legal notice even though the Opposite Parties not complied. Hence this complaint.

The Opposite Party on the contrary raised a contention that the benefit of cashless access to hospital is denied because the Complainant did not make available required documents despite repeated requests of the third party authorized administrator i.e. Opposite Party No.2 and hence the claim of the Complainant could not be reimbursed.

The only contention before the Fora is that the benefit of cashless facility was denied by the Opposite Parties.

It is admitted that, the Complainant had medi-claim policy and the same is valid the only contention taken by the Opposite Party is that the Complainant failed to submit the required document to reimburse the claim. On the other hand, the Complainant contended before the Fora that, when he admitted to the hospital as an inpatient through the hospital he has sent intimation through fax No.022/23001167 and submitted all particulars i.e. Form No.7 on the date of admission. But no material is available before the Fora to show that the Complainant sent fax by submitting Form No.7 on the date of admission but on the other hand the Ex.R1 i.e. a Form No.7 shows that the same has been sent on 4.9.2007 and not on the date of admission.

And the Ex.R2 i.e. the request for information/clarification sought by the Opposite Party reveals that the Opposite Party No.2 i.e. the 3rd party administrator sought for certain clarification i.e. Final diagnosis, discharge summary and some other documents from the hospital on 5.9.2007. In the present case, it is significant to note that the Complainant discharged on 5.9.2007 from the hospital and the intimation of cash less facility was sent by the Opposite Party on 4.9.2007 by submitting Form No.7 to the Opposite Party No.2. That means the intimation was sent just one day before the discharge.

However, in the present case, it could be seen that there is no negligence on the part of the Complainant because the Complainant being a medi-claim policy holder intimated the hospital and submitted the Form No.7 but while sending the Form No.7 there was a delay on the part of the hospital, however the same was sent just one day before the date of discharge. The Opposite Party on receipt of the intimation ought to have settled the claim after obtaining necessary documents from the hospital. The duty of the third party administrator is to process the genuine claim by obtaining necessary documents. But in the present case, no such attempt was made by the Opposite Party i.e., third party authorized administrator.

The Opposite Party No.2 instead of collecting the documents from the hospital or from the Complainant straight away denied the cashless facilities when the policy is valid and the Complainant is entitled for reimbursement it is not justified in denying the cashless facility which amounts to deficiency in service and the Opposite Parties cannot absolve from their liabilities. And we further noted that atleast the Opposite Parties ought to have reimbursed the medical claim even after discharge from the hospital. But no attempt or payment was made which amounts to deficiency in service.

In view of the above circumstances, we hereby direct the Opposite Parties to pay Rs.7,885/- to the Complainant towards medical bills and further Rs.3,000/- awarded as compensation for the inconvenience and harassment and Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

6. In the result, we pass the following:

ORDER

The complaint is allowed. The Opposite Parties are jointly and severally liable to pay Rs.7,885/- to the Complainant and further Rs.3,000/- awarded as compensation and Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

Shri. Sunil Chandrakant Kamble

R/at – 87, ‘C’ Magar Ali, Hadapsar,

PUNE – 28 … COMPLAINANTS



- : VERSUS : -


1. I.C.I.C.I. Lombard General

Insurance Co. Ltd.

Registered office - I.C.I.C.I.

Bank Towers, Bandra Kurla

Complex,

MUMBAI – 400 051



2. I.C.I.C.I. Lombard General

Insurance Co. Ltd.

Divisional Manager,

206 – 219, Sohrab Hall,

Sassoon Road, Opp Jahangir

Hospital, PUNE – 411 001 … OPPONENTS


** J U D G M E N T **

[2] The complainant had purchased a vehicle of Mahindra Scorpio and had duly insured the same with the opponents. The opponent no. 1 is the main branch and the opponent no. 2 is the Divisional office of the insurance company. The car was insured by paying premium. The cover was made available from 17/5/2006 to 16/5/2007.

[3] The complainant submits that he is physical handicapped person. Most of the time his brother drives the vehicle. On 9/3/2007, the complainant had gone to his native place at Tembhurni. All of a sudden the car gave dash to a standing tree. The report to the concerned Police Station was made.

The car was substantially damaged in the accident. It was taken to the authorized show room at Moledina Road, Pune. The said show room had estimated the repair cost of the Scorpio at Rs. 11,67,345.99. The said estimate together with the claim was submitted before the opponent company. It was not favorably considered by the opponents. The claim was repudiated by the opponent company by their letter dtd. 27/4/2007. The only reason given by the opponent for repudiating the claim was that the driver of the vehicle did not possess valid driving license.

[4] Despite this the complainant keeps on contacting the officers and the staff of the opponent no. 2. The complainant alleges that the negotiation for the compromise were going on between the parties. At the instance of the opponent no. 2, the complainant had filed the letter of indemnity and bond before the opponent no. 2. According to him the terms of compromise are mentioned in that bond and in the undertaking. Some of the features of the alleged compromise are to the following effect.

The complainant was to get an amount of Rs. 6,00,000/- towards

the insurance claim. In addition to that the entire loan borrowed

from the sister concern of the opponent namely I.C.I.C.I. bank

was to be discharge by the opponents. The cost of the parking

charges were also liable to be paid by the opponent. The complainant

was liable to give delivery of the car in favour of the opponent.

[5] The complainant submits that accordingly he had duly executed the indemnity bond and the necessary undertaking on the stamp paper and had submitted the same before the opponent no. 2 on 5/5/2007. The opponent no. 2, however, did not abide by the terms and the conditions of the compromise. The letters of demand were received by the complainant from the I.C.I.C.I. bank. So also the parking charges were demanded by the authorized garage of the opponent from Moledina Road. The complainant therefore contacted the officer of the opponent. The indemnity bond and the undertaking were called by the complainant. The car was also taken in possession by the complainant. The compromise was therefore rescinded.

[6] The complainant therefore submits that the failure to sanction the claim amounts to deficiency service. He had prayed an amount of Rs. 11,67,399.99 together with parking charges of Rs. 7,300/- from the opponents. The complainant also prays that he be awarded compensation towards mental stress and agony etc. and independent compensation at Rs. 20,000/- each. He had also prayed that an amount of Rs. 5000/- be awarded to him towards cost of the litigation. On all these amounts the complainant prays that past and future interest @ 16% be given to him.

[7] The opponents have filed their common written statement. They have disputed all the allegations in toto. According to them, the complaint involves complicated question of law and facts. Those questions cannot be decided in a summary trial before this Forum and as such this Forum is not competent to entertain the present complaint.

It is then pleaded that the complainant has failed to plead anything regarding the alleged deficiency in service. The claim was legally repudiated by the opponents. There is no question of deficiency. In absence of any cause of action, the Forum has no jurisdiction to try the complaint. There is breach of the terms and the conditions of the policy. The driver did not possess valid and effective driving license. He was holding valid license of Transport vehicle, which was lapsed or expired on the date of accident. That transport license was renewed by the driver on 26/3/2007. Thus the complainant has contravened the terms of the policy. As such he is not entitled to any compensation.

[8] With regard to the alleged compromise dtd. 5/5/2007 is concerned, it is impliedly pleaded that the same is figment of imagination of the complainant. The complainant had executed the bond and the undertaking voluntarily and on his own. There was no such instructions given to the complainant. There was no recourse, consultation or instructions from the opponents to execute such bond and the undertaking. For all these reasons therefore the opponents prays that the complaint be dismissed with exemplary costs.

[9] The complainant has filed his rejoinder to the written statement. It is not necessary to refer to all those aspects contained in the rejoinder.

[10] We have heard both learned Advocates, who have appeared on behalf of the parties. On behalf of the complainant a reference to section 7 and section 10 of the Motor Vehicle Act was made. It is pointed out that the repudiation of the claim is inherently illegal. The deficiency is writ large. As against that on behalf of the opponent, it is urged that the driver did not posses valid driving license. The policy was violated by the complainant. The price of the car is Rs. 7,76,554/-. As against that the estimate obtained by the complainant for the purpose of repair of the car is over Rs. 11,67,000/-.

[11] The main question that would arise for our determination is about the valid driving license or otherwise of the complainant’s driver. Indeed the question of jurisdiction and failure to plea the alleged deficiency is there. However, we shall deal with the same only at the later stage. At this stage, we may only observe that the failure to entertain and grant a lawful claim would amounts to deficiency in service. There is no question of party pleading the allegations of the deficiency.

Even in the absence of that pleading, if attendant circumstances show that the legal obligation had not been complied with by the insurance company that would amount to failure to perform the legal obligation and therefore the deficiency in service. Similarly with reference to the jurisdiction of the Forum is concerned, it may be observed that complicated question of law and facts have to be considered on the basis of the pleadings. Apparently the complaint as is pleaded does not show that there are any complicated question of law and facts. An elaborate trial in the manner anticipated by the opponent is therefore not necessary.

[12] Thus the main question is about the license of the complainant’s driver. Alongwith the reply the opponent has filed the zerox copy of the license. It shows that the driver had valid license to drive transport vehicle from 23/9/2003 to 22/9/2006. The license in respect of the transport vehicle was renewed by the complainant’s driver on 26/3/2007. Apparently on the date of accident i.e. 9/3/2007, the driver did not possess valid license for transport vehicle.

[13] The question is what is the nature of the vehicle namely ‘Scorpio’. The complainant has placed on record the form no. 23, which is certificate of the registration in respect of the said vehicle. The engine number and other particulars are given in that form. They prima-facie tally with the complainant’s car. In maker’s name ‘Scorpio’ is classified as light motor vehicle. The same is not classified as transport vehicle. Admittedly the certificate of Registration clearly shows that the car is light motor vehicle. The question would arise, if the driver possesses valid and effective driving license to drive ‘Scorpio’ – light motor vehicle. Again a reference to the license is necessary.

It shows that the driver had valid non transport vehicle license with effect from 23/9/2003 to the year 2/9/2023. The same is classified as non transport vehicle and therefore the driver possesses license to drive light motor vehicle till 2/9/2023. Well, the certificate of the registration has categorically classified the vehicle as light motor vehicle and the driver holds valid license of such vehicle till 2/9/2023. We find that there is no substance in the contention of the opponent that the driver did not possess valid and effective driving license. Unfortunately what is mentioned in the license is non transport vehicle. The same is apparently synonymous to light motor vehicle. In the description of the driving license, it is provided that the driver can drive motor cycle and LMV (T). That ‘T’ indicates transport vehicle, for which the license is already expired on 22/9/2006. At the same time, on the date of accident, the driver possesses the license to drive LMV. We therefore find that the contention is raised by the opponent solely with the view to repudiate the claim of the complainant.

[14] With reference to the alleged contravention of the policy is concerned, the aforesaid solitary circumstance was brought to our notice. There is no other breach or contravention alleged by the opponent. We have seen that driver possesses valid and effective driving license to drive LMV. The vehicle is classified as LMV. In absence of any allegations regarding contravention of the policy, excepting one mention above, we find that there is no substance in the contention of the opponent that the policy is violated.

[15] The alleged compromise dtd. 5/5/2007 is totally an insignificant circumstance. That will not lead us anywhere for the purpose of adjudicating the complaint. Whether there was talk of compromise, which ended on complainant’s executing the bond and undertaking in favour of the opponent is the matter within the special knowledge of the parties. The same is not relevant for our purpose. The relevance is only to the extent that in the compromise claim was amicably settled at Rs. 6 lacs. In that undertaking and in the bond, there is no mention about the waiver of the claim regarding the banks dues and the parking charges. We can only read that the compromise to the aforesaid extent

[16] Normally one is hesitant to execute the bond and undertaking, unless there is some or other demand by the officer and the staff of the opponent. The complainant shall refrain himself from executing such documents and giving the custody thereof to the opponents. We cannot forget that in the complaint in para 7 in the concluding sentence, the complainant has pleaded that he had accordingly given the possession of the vehicle to the opponents. That plea had not been specifically denied by the opponents. The fact remains that relevancy of that compromise dtd. 5/5/2007 is only to the extent that the claim was amicably settled at Rs. 6 lacs only.

[17] This takes us to the quantum of the claim and compensation. Unfortunately although the claim was submitted before the opponent, the opponent did not appoint their investing officer, nor did they survey nature of the damage to the vehicle. It is only urged that the price of the car is Rs. 7.75 lacs. The complainant is claiming an amount of Rs. 11.75 lacs towards the claim. Indeed the claim is apparently exaggerated. Unfortunately on account of the failure on the part of the opponent to appoint Surveyor, the nature of the damage has not come on record with reasonable certainty. There are certain documents called by the complainant from the authorized service station of the opponent. But those documents will not give any clue to the exact loss or damages.

A reference can also be made to the spot panchanama drawn during the course of the investigation. In that panchanama the damage caused to the car of the complainant was estimated at Rs. 2,90,000/-. Again this would not be a decisive figure. The fact remains that although there was an opportunity on the part opponent to appoint surveyor/investigator to ascertain the quantum of damage and loss caused to the vehicle; that opportunity was not availed by the opponents. One has to therefore draw an approximate figure without there being any satisfactory evidence on record.

Having regard to all the facts and the circumstances of the case, we find that the loss claimed by the complainant is highly imaginary and improbable. For the repairs of the car worth Rs. 7.75 lacs, one is not expected to spend an amount of Rs. 11.75 lacs. Thus we find that the loss and damage to the car can be quantified at Rs. 4.50 lacs only. The complainant shall be entitled to recover past and future interest on the said amount of Rs. 4.50 lacs @ 9% p.a. with effect from 27/4/2007 till realization thereof. Besides that the complainant shall also entitled to the compensation for mental stress and agony at Rs. 5000/- and litigation cost of Rs. 1000/-. We therefore proceed to pass the following order.

** O R D E R **

1. The complaint is partly allowed.

2. The Opponents are jointly & severally directed

to pay to the Complainant, an amount of Rs.4,50,000/-, (Rs. Four Lac Fifty Thousand only) together with interest thereon @ 9% p.a. from 27/4/2007 till realization, within a period of two months from the date of receipt of this order.

3. The Opponents are further jointly & severally directed to pay to the Complainant, an amount of Rs. 5000/- (Rs. Five Thousand only) towards compensation for mental stress and agony and an amount of Rs. 1000/- (Rs. One Thousand only) towards litigation cost, within a period of two months from the date of receipt of this order.

Mr.Dattu Sitaram Chowdhari

Room No.4, Pawar Chawl

Near Bhandari Petrol Pump

Kasarwadi, Pune 411 034. …. …. Complainant



v/s.

1.I.C.I.C.I. Lombard General Insurance

Co. Ltd., Registered office ICICI Bank

Tower, Bandra Kurla Complex

Mumbai 400 051.

Through its Manager.

2.ICICI Lombard General Insurance

Company Ltd., Branch Office

Bhandarkar Road,

Pune 411 004.

Through its Manager. …. …. Opponents


1. Complainant has filed this complaint under sec.11 of the Consumer Protection Act, 1986 against the Opponent. Brief facts of the complaint are as follows-

2 (APDF/74/08)

2. That complainant himself is the owner of the vehicle - Maruti Van bearing registration no.MH 14 AV 5477, Chassis No.MABEV 11500 819522, Engine No. F 8BIN 3725585, Model 2007. He purchased the said vehicle for his own use and for the use of other members of his family. Vehicle was insured with the opponent No.2 vide policy no.3001/51342339/00/000 commencing from 5/3/2007 upto and including 4/3/2008 and paid the entire amount towards insurance of the vehicle to the office of opponent no.1. It is the case of the complainant that on 26/8/2007 at about 8.25 p.m. the above vehicle, on account of mechanical defect/s was parked near Ujwal General Stores, 273, Narayan Peth, Pune 30. He went to bring usual mechanic, however, not found. On reaching the spot with mechanic on 27/8/2007 at about 10 a.m., he was shocked to notice that driver side door and also the back side door was considerably pressed, head lamp on the rear side of right side was broken and also the covering thereof. It was due to the unknown person who had given dash to the abovesaid vehicle.

Complaint was lodged at Vishrambag Police station. Panchanama was drawn on 27/8/2007 (copy annexed to the complaint at page 8) estimating damage to Rs.35,000/-. According to the complainant he spent Rs.54,000/- towards repairs. Opponent vide letter dt.4/10/2007 intimated the complainant about disallowing his claim on the ground of user of vehicle for business purpose. Hence, filed this complaint claiming for Rs.54,000/- towards repairs, Rs.50,000/- towards mental torture and Rs.10,000/- towards autorickshaw fare and phone calls, in all Rs.1,14,000/- from the opponent. Complainant has prayed for cost of Rs.5,000/-. Complaint is filed within limitation and this Forum has jurisdiction to try the complaint.



3 (APDF/74/08)

3. Alongwith complaint complainant filed list of documents including Panchanama dt.27/8/2007, Claim Form dt.28/8/2007, Service Estimate dt.28/8/2007, Invoice of Wonder Cars Private Limited dt.29/9/2007, Copy of letter regarding rejection of claim dt.4/10/2007 and notice sent through Advocate dt.19/10/2007.

4. Opponents filed written version contending interalia that complaint is false, misleading and concocted. Opponent has admitted about issuance of insurance policy for vehicle Maruti Van bearing registration no.MH 14 AV 5477 for the period 5/3/2007 to 4/3/2008. According to the opponents vehicle of the complainant met with an accident on 26/8/2007. Accordingly complainant filed claim form. Opponents appointed Insurance Surveyor M/s. Charter House Detective Services for investigating the claim of the complainant who observed that the mileage of the said insured vehicle was 29158 km from March 2007 (i.e. from purchase of vehicle) upto 26/8/2007 (date of accident) and insured used the insured vehicle for commercial purpose and the same being run on Pune Municipal Corporation to Bhosari route on fare paying passenger basis, and as per the police records insured vehicle sustained damage to the extent of Rs.30,000/- to Rs.35,000/-.

Opponents contended that complainant was working with 'Gati' courier was earning Rs.15,500/- p.m. and purchased the said Maruti Omni in March 2007 from Wonder Cars and his son looks after the operation of the said car. Complainant's vehicle run 29158 kms within about 5 months time from the date of purchase. M/s. Sai services - authorised dealer of Maruti Car is located very close at Jangli Maharaj Road, Deccan Gymkhana to the alleged spot of damaged to the vehicle at Shaniwar Peth. There was no need for the

4 (APDF/74/08)

complainant to leave the vehicle unattended at Shaniwar Peth from 26/8/2007 to 27/8/2007. From the statement of complainant dt.7/9/2007, panchanama dt.27/8/2007 and Surveyor's report dt.17/9/2007 it was revealed that Complainant used the insured vehicle for commercial purpose, which is in breach of terms and conditions of the insurance policy. With complete application of mind claim of the complainant was repudiated on 4/10/2007. According to the opponents complicated questions of law and fact are involved in the present case hence this Forum has no jurisdiction to try the case under summary procedure. Though the complainant has claimed Rs.54,000/- towards repairs, from the invoice of Wonder Cars Private Ltd. dt.29/9/2007 filed by the complainant, complainant actually incurred Rs.24,948/- towards repairs of the insured vehicle. According to the panchanama vehicle sustained damage to the extent of Rs.30,000/- to Rs.35,000/-. Lastly it is contended that there is no deficiency in service on the part of the opponents and prayed for dismissal of the complaint with cost. Written statement is supported with an affidavit of Mr.Nilesh Ramchandani of the opponent.



5. Alongwith written statement opponent produced list of documents-

1. Surveyor's Report dt.17/9/2007

2. Statement of complainant dt.7/9/2007

3. Statement of complainant's son dt.7/9/2007.

Copy of Insurance Policy Cover Note is also produced on record.

6. Complainant filed rejoinder thereby denied the contentions of the opponent in the written statement. Complainant filed written argument. Opponent also filed written argument.

5 (APDF/74/08)

7. Affidavit of Mr.Prasad Kasture, Investigator has been filed on record who was appointed by the ICICI Lombard General Insurance Co. Ltd. to investigate the claim of the complainant. He has opined in para 5 of his affidavit that -

"That from the investigation I am of the opinion the vehicle of Shri. Dattu Sitaram Choudhari met with an accident on 26/8/2007 due to some unknown vehicle. The insured run the vehicle on Pune Municipal Corporation to Bhosari route on fare paying passenger basis. Hence, the said vehicle is used by the insured for commercial purpose."

8. Opponents produced list of authorities-

1] III 2007 CPJ 317 (NC)

2] IV (2007) CPJ 196 (NC)

3] III (2008) CPJ 93 (NC)

3] IV 2008 CPJ 122 NC.



9. Heard Shri.Kasbekar, Advocate for the complainant and Smt.Joshi, Advocate for the opponents. Perused record and proceedings.

10. Following points arise for my consideration and my findings thereon are as under-

Points Findings

1.Whether Opponent prove that this Forum has

no jurisdiction to try the case? … …. No.

2.Whether opponent prove that the insured vehicle

was used for commercial purpose? … … No.

6 (APDF/74/08)

3.Whether the complainant is entitled to

Rs.1,14,000/- as prayed for? …Complainant is entitled

to Rs.24,948/- with interest @ 9% p.a. from 26/8/2007 till realisation.

4.Whether the complainant is entitled to cost? …Complainant is entitled

to Rs.1,000/-towards costs.

5.What order? … As per final order.

11. Reasons-

As to the Point No.1-

Opponents have taken a contention in written statement that this Forum has no jurisdiction to try and entertain this complaint as it involves complicated question of law and facts which require full fledged trial by the Civil Court. According to the section 3 of the Consumer Protection Act, 1986, provisions of this Act are in addition to and not in derogation of the provisions of any other laws for the time being in force. Hence, we are of the opinion that this Forum has jurisdiction to try and entertain the present case. Hence, we answer point no.1 accordingly in affirmative.

As to the Point Nos.2 and 3-

After receipt of claim opponents appointed M/s.Charter House Detective Services for investigation of the claim who submitted its report on 17/9/2007. We have no reason to disbelieve the Surveyor's report.

7 (APDF/74/08)

We have carefully gone through the documents produced on record. According to the opponents and the surveyor appointed by the opponents, the insured vehicle was used for commercial purpose as the insured vehicle was being run on PMC to Bhosari route on fare paying passenger basis. But in support of this contention no evidence is produced on record by the opponents. In the Panchanama recorded on 27/8/2007 nowhere it has been stated that any damage is caused to any human-being. Hence, we have no reason to disbelieve contention of the complainant that the insured vehicle as purchased by him for his personal use and for the use of his family members.

We have perused the bill invoice of Wonder Cars Private Ltd. dt.29/9/2007 filed by the complainant vide which complainant had to spend Rs.24,948/- towards repairs of the insured vehicle. Complainant has not produced any bill showing that he had to spend Rs.54,000/- towards repairs of the insured vehicle. Hence, we are of the opinion that complainant is entitled to get Rs.24,948/- with interest @ 9% p.a. from 26/8/2007 till realisation towards repairs of the insured vehicle from the opponents.

It is settled principle of law that when interest is allowed, no separate compensation needs to be awarded. (See the decisions in Skipper Bhavan v/s. Skipper Scales (Pvt.) Ltd. 1 (1995) CPJ 210 (NC) ; M/s.Ketan Consultants Pvt. Ltd. v/s. Sanjiv Bansod & Anr. I (2000) CPJ 24 (NC).

For the reasons discussed above we pass the following order-

ORDER

1.Complaint is partly allowed.

2.Opponents jointly and severally are directed to pay Rs. Rs.24,948/- (Rs.Twenty Four Thousand Nine Hundred Forty Eight only) to the

8 (APDF/74/08)

complainant alongwith interest @ 9% p.a. from 26/8/2007 till realisation of entire amount to the complainant.

3.Opponent jointly and severally are directed to pay Rs.1,000/- (Rs.One Thousand only) towards costs to the complainant.

Mr. Prazere Andrade

H. No.149/1, Aframento Vaddo,

Verem, Reismagos,

Bardez Goa 403 114 …………………….Complainant



V



SBI Card Collection Centre,

Citicentre Bldg, 2nd Floor,

Panjim Goa. .......………...…..Opposite Party


S.B.I. Cards & Payment Services Pvt. Ltd.,

P.O. Bag No.28, G.P.O.,

New Delhi 110 001. …………………Opposite Party -2

O R D E R


1. The case of the Complainant is that he was issued a SBI Card in December 2004 by the Opposite Party which was valid for a period of 2 years. It is his case that during these two years he did not do any single transaction. This fact stands disputed by the Opposite Party.


2. According to the Complainant even though he had requested the Opposite Party to cancel the card he was forced to pay yearly fees which he did. It is his case that in February 2007 he received a bill showing the following transactions:

a. 5/1/2007 - Rajan Auto Care, Delhi Rs.12,906.85

b. 9/1/2007 - Rajan Auto Care Delhi Rs. 8,068.75

which according to him are false.


3. The case of the Opposite Party is simply one of denial holding the complainant responsible for the transactions that took place on the credit card. We have gone through all the documents and other evidence that has been led before us and we make the following

OBSERVATIONS


1. The Opposite Party has remained silent throughout on the fact that the Visa Card of the Complainant which has been produced by him before us was never signed by him and therefore could never have been made use of as there was no scope for the verification of his signature.


2. The Opposite Party has not brought on record any bills of claim from Rajan Auto Care, Delhi which would be mandatory for them to prove that a transaction had infact taken place on the respective dates.

3. The Complainant has produced evidence before this Court that he was in Goa at his work place on the 2 days that the transactions are alleged to have taken place. The Opposite Party has not disputed his presence in Goa during these days.


4. Considering all arguments that have been forwarded before us we are of the opinion that there has been a deficiency in service on the part of the Opposite Party and hence we pass the following:


ORDER

1. Opposite Party is directed to reverse back the charges of Rs.20,793.60 (Rupees twenty thousand seven hundred ninety three and paise sixty only) to the Complainant and to stop any interest that is being charged by the Opposite Party.

2. Cost of Rs.5,000/- granted to the Complainant for mental torture, harassment and towards legal expenses.

Shri Mahesh Ramakant Nerurker,

R/o. T-4, B-2, Nalanda Apartments,

Aquem-Baixo, Rawanfond,

Margao Goa ….. Complainant



V/s.



1. The Branch Manager,

ICICI Lombard General Insurance Co. Ltd.,

1st Floor, Kamat Towers,

Patto, Panaji Goa.



2. The Managing Director,

ICICI Lombard General Insurance Co. Ltd.,

2nd Floor, Zenith House,

Keshavrao Khadeye Marg.,

Mahalaxmi, Mumbai 400 034. ….. Opposite Parties


O R D E R

I. It is alleged in the complaint that the Complainant sent a proposal to the O.Ps somewhere in the first week of April, 2007 under Family Health Care Policy named ICCI Lombard Health Care Policy bearing Policy Certificate No.4034/fpt/02319533/00/000, which policy is a self proposal policy and the same was accepted by the O.Ps on 16.04.2007. It is submitted that the policy covers a maximum risk of an amount of Rs. 2,00,000/- and valid for a period of three consecutive years i.e. from 22.06.2007 to midnight of 21.06.2008 and the same policy is to be renewable by the Complainant till 21.06.2009.



II. It is alleged in the complaint that the Complainant received an Identity Card bearing No. BLC-IL-000-05-43535-A of the O.Ps of the ICICI Lombard Health Care Policy bearing Policy Certificate No. 4034/fpt/02319533/00/000. It is further alleged that the Complainant under provisions of the above policy agreed to pay to the O.Ps an amount of Rs. 11,742/- and that the same consolidated premium amount of the ICICI Lombard Health Care Policy is to be paid by the Complainant to the O.Ps within three financial years i.e. an amount of Rs. 4,545.81 to be paid in the year 2007-2008, an amount of Rs. 5,862.97 to be paid in the year 2008-2009 and the remaining amount of Rs. 1,333.22 to be paid in 2009-2010. It is alleged that the Complainant is having Credit Card facility by name “Miracle Card” bearing No. 4443 4100 4793 4003 with Centurion Bank of Punjab Ltd., Margao Branch having its regional office in Goa at Shanta Durga Niwas, M.G. Road, Panaji Goa.



III. It is also alleged in the complaint that since the Centurion Bank of Punjab Ltd. was taken over by ICICI Bank, the premium amount in respect of the said ICICI Lombard Health Care Policy of the Complainant has been deducted at source from the amount available under the said Miracle Cash and Credit Card bearing No.4443 4100 4793 4003. The said ICICI Lombard Health Care Insurance have deducted an amount of Rs.1,044.28 from 22.03.2008 till 03.04.2008 inclusive of the amount towards ancillary charges.


IV. The case of the Complainant is that the he had a Cardiac attack and as a result he was initially admitted on 06.03.2008 in ICCU-8 in the Hospital named “The Grace Intensive Cardiac Care Centre & General Hospital”, Margao Goa under the consulting Doctor Cardiologist named Dr. Antonio Rodrigues and as a result an expenditure of an amount of Rs. 1,880/- incurred to the Complainant in the same hospital. The Complainant further submits that on the same day i.e. on 06.03.2008, he was shifted to nearby hospital named “Apollo Victor Hospitals,” Margao Goa under the consulting doctor named Shri Uday Khanolkar and thereafter the Complainant has undergone through a procedure of Coronary Angiography to cure the Coronary Artery Disease and Double Vessel Disease of the Complainant in the same hospital and as such it was diagnosed that the Complainant is suffering from Ischemic Heart Disease, Evolved Inferior Wall Myocardial Infault, Transient Complete Heart Block,, etc. and as a result an additional expenditure of an amount of Rs.76,796/- incurred to the Complainant in the same hospital.


V. It is alleged in the complaint that the Complainant has sent the claim application on 24.03.2008 alongwith the required copies of the documents to the O.P. for the reimbursement of the total amount of Rs. 78,676/- as against the said policy but the O.Ps have utterly failed to do the needful. Hence the Complainant issued a legal notice dated 19.04.2008 to the O.Ps by Regd. A/D. and though the said notice was received by them the O.Ps have not complied with the requirement of the said legal notice.

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



(a) By Judgment and order of this Hon’ble Court the O.Ps be directed to pay to the Complainant a sum of Rs. 78,676/- together with existing bank interest thereon per annum chargeable from the day of cause of action till the complete payments and realization of the said amount.

(b) The O.Ps be directed to pay the sum of Rs. 20,000/- being the compensatory amount towards damages, hardships and mental and physical agony sustained to the Complainant.

(c) Cost of this complaint be allowed.

(d) Such other reliefs be granted to the Complainant as this Hon’ble Court deems fit and proper.



On receiving the notice from this Forum, the O.Ps appeared before this Forum through their Advocate on 30.07.2008 and filed their Written Version on 12.08.2008 inter-alia objecting the case of the Complainant on the following amongst other grounds:



1. The O.Ps alleged that the complaint is not maintainable at law and the Complainant is not approached this Forum with clean hands.


2. The O.Ps admitted the contents of para nos. 1, 2, 3 and 4 of the complaint. The O.Ps did not admit the contents of para nos. 5, 6, 7, 8, 9 and 10 of the complaint. The O.Ps submitted that TTK Healthcare Services Pvt. Ltd. vide their letter dated 19.04.2008 informed the Complainant that the claim was rejected under Exclusion Clause No.3.1 “Claims arising on account of or in connection with any pre-existing illness shall be excluded from the scope of cover under policy”, and therefore the claim was not admissible as per the terms and conditions of the policy since the Complainant had availed treatment for Ischemic Heart Disease, Double Vessel Disease diagnosed in 2000, pre-existing to the policy inception.


3. The O.Ps denied that Complainant is entitled for the amount that he has claimed in the complaint since there is no cause of action in favour of the Complainant to file the present complaint and hence the O.Ps prayed that the complaint be dismissed with costs.



The Complainant filed his Affidavit-in-evidence on 07.11.2008 inter-alia confirming his allegations made in the complaint. Though enough opportunities were given to the O.P., they have failed to file their Affidavit-in-evidence. The Complainant has filed his Written Arguments on 27.04.2009.



On perusal of the complaint, the pleadings of the parties, Affidavitory evidence of the Complainant and the written arguments of the Complainants, we do hereby proceed to make the observations and record our findings in respect of the cause of action of the present case as would contain hereinafter:



1) It is observed that the Complainant has submitted documentary evidence in favour of his claim, contents of which are gone through by this Forum.



2) It is noted that despite several opportunities, the O.Ps did not file their Affidavit-in-evidence although they have filed their written version. Hence we are duty bound to observe that in the absence of the Affidavitory evidence, the O.Ps deemed to have been admitted the case of the Complainant.



3) We have gone through the contents of the said ICICI Lombard Health Care Policy Part-I as well as Part-II together with the payment receipts of Rs. 500/- paid by the Complainant to the concerned doctor and also the receipt bearing No. 2595 issued by the said Hospital. The Complainant has also enclosed to the complaint other receipts issued by the various departments from the O.Ps from time to time including medical reports of Dr. Uday Khanolkar dated 06.03.2008 in Apollo Victor Hospital Procedure treatment and payment issued by the said doctor. The Complainant has enclosed the relevant receipts issued by different authorities of the O.Ps for the various payments made on different dates towards the medical charges/treatment received by the Complainant from time to time.



4) Since the O.Ps have failed to honour their commitments under their policy, Advocate Subhash K. Kanekar issued a legal notice to the O.P. dated 19.04.2008 inter-alia giving the details of the case of the Complainant and requiring the O.Ps to pay to the Complainant the amount of Rs. 78,676/- within the time stipulated in the said notice. However, surprisingly the O.Ps have not bothered to comply with the said notice nor reply the same.



5) The written version filed by the O.Ps does not say anything new or different. The O.Ps has mechanically denied the contents of the relevant paragraphs of the complaint without substantiating the same. The fact of the matter is that the O.Ps have admitted para nos. 1, 2 3 and 4 of the complaint as being substantially correct.



6) In our considered opinion the Complainant has succeeded in proving his claim as coming under specific terms and conditions stipulated in the said policy. Since the claim referred by the Complainant is within the scope of the policy, the O.Ps were not certainly justified in rejecting the same on any grounds whatsoever. In our opinion the Complainant was right in raising the claim also for the damages on account of the hardships and mental and physical agony suffered by the Complainant.



7) In our opinion we find no reason as to why we disbelieve the case of the Complainant when all relevant documents are submitted by him. As stated earlier the written version filed by the O.Ps by itself cannot take place of the proof in the absence of the Affidavit-in-evidence which the O.Ps miserably has failed to file. We also hold that the present claim does not attract the Exclusion Clause of the said policy.


8) Hence we are of the considered opinion that the Complainant has succeeded in proving his entitlement to the reliefs as claimed in the complaint and that the facts stated in the complaint and the Affidavit-in-evidence of the Complainant clearly indicate the ‘deficiency-in-service’ on the part of the O.Ps within the meaning of the Consumer Protection Act, 1986. Hence this complaint is bound to succeed in terms of its prayer together with our directions as to compensation and costs.

We therefore pass the following Order:

O R D E R

It is hereby Ordered that the Complaint dated 14.05.2005 filed by the Complainant herein against the O.Ps herein is allowed in terms of the prayer. Accordingly the O.Ps herein are hereby directed to pay to the Complainant a sum of Rs. 78,676/- (Rupees seventy eight thousand six hundred seventy six only) together with interest at the rate of 12% per annum from the date of the acceptance of the said policy till actual payment. The O.Ps are also further directed to pay to the Complainant the amount of Rs. 20,000/- (Rupees twenty thousand only) by way of compensation towards hardship and mental and physical agony suffered
by the Complainant together with the cost of Rs. 5000/- (Rupees five thousand only). The aforesaid amount shall be paid within 30 days from the date of this Order.

Bhupinder Pal Thakur son of Sh. Paras Ram resident of village Bhutti Colony , Post Office Shamshi , Tehsil and District Kullu, H.P.



…Complainant



V/S



1. ICICI Lombard General Insurance Company ltd Shimla , ICICI Bank Retail Asset Moon International Complex Chhota, Shimla, H.P.

2. I.C.I.C.I Lombard General Insurance Company Ltd Quite Office 10 Sector 40B Chandigarh.

3. I.C.I.C.I Lombard General Insurance Company Ltd Chauta Bajar , Mandi, District Mandi, H.P.

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 parties . Brief facts of the complaint as set up by the complainant are that he is registered owner of Hundai Santro Car bearing registration No. H.P.34-A 6801, chassis No.16796, engine No.46205 and model 2005 .

The said vehicle was insured with the opposite parties with effect from 21-10-2006 to 20-10-2007 vide policy No.3001/50738169/000 after paying premium of Rs.7309/-. During the month of February 2007, aforesaid vehicle met with an accident . The complainant got the requisite formalities completed and made a representation to the opposite parties to release the claimed amount as per the survey done . Upon this , the opposite party vide claim relief No.289714 issued a cheque bearing no.616191 dated 28-02-2007 amounting to Rs.8,369/- through Blue Dot courier service but till date the cheque had not been received by him. The complainant averred that he had informed the opposite party about non receipt of the aforesaid cheque , but of no avail .

The complainant even visited Chandigarh office of the opposite parties and he was assured that he will be issued cheque but till date nothing had been done . The complainant also served the opposite parties with legal notice but neither the same was responded nor his grievance was redressed On these averments , the complainant had sought a direction to the opposite parties to pay the claim amount of Rs.8369/- alongwith interest at the rate of 18% per annum from the date of issuance of the cheque i.e. 28-2-2007 till payment. A sum of 1.50,000/- has been claimed on account of mental agony , harassment and hardship , apart from costs of the litigation.

2. The opposite parties resisted the complaint and filed reply wherein preliminary objections have been taken that the complainant is not properly instituted and constituted as the company being an artificial juridical person can sue and can be sued in its name hence the complaint in the present form is not maintainable , that the Forum at Mandi had got the jurisdiction to try and entertain the present complaint, that the complaint is bad for non joinder of necessary party, that no cause of action arose in favour of the complainant and against the opposite parties as they have performed their part of service by mailing cheque No.616191 to the complainant through Blue Dot courier service and the Blue Dot courier company is a necessary party. On merits . the opposite parties have denied the contents of the complaint in totality except that they have mailed the cheque No.616191 to the complainant through Blue Dot courier services . It has been pleaded that the complainant is not entitled to any relief and had sought dismissal of the complaint .

3. In the rejoinder ,the complainant has reiterated his stand taken in the complaint and controverted the contentions of the opposite party.

4. We have heard the ld. counsel for the parties and have carefully gone through the record.

5. The ld. counsel for the complainant had argued that the complainant is entitled to get Rs.8,369/ from the opposite parties as insurance claim apart from compensation and costs of litigation.

6. On the other hand, the ld. counsel for the opposite parties had argued that since they have mailed the cheque No.616191 in the sum of Rs.8,369/- in favour of the complainant through Blue Dot Courier service , they are not liable to pay the amount as claimed by the complainant..

7 Therefore, the matter has to be scrutinized and examined with respect to the aforesaid contentions of the ld. counsel for the parties.

8. From the perusal of the complaint, reply and accompanying documents, the sole question which arises for determination by this Forum is as to whether the complainant had received the cheque No.616191 dated 28-2-2007 in the sum of Rs..8,369/- allegedly sent through Blue Dot Courier Service or not .Be it stated that that there is no dispute with regard to the amount of insurance claim settled by the opposite parties which according to them is Rs. 8369/-. The stand of the opposite parties is that they have sent cheque No.616191 to the complainant and they have performed their part of service, therefore on this ground they prayed for dismissal of the complaint. Therefore the onus was upon the opposite parties to prove and establish that the cheque No.616191, as alleged , in the reply had been sent to the complainant through courier service .

However. no evidence has been adduced by the opposite parties to prove that cheque in the sum of Rs.8369/- had been sent to the complainant and he had received the cheque .The opposite parties have failed to tender the copy of the cheque , or courier receipt . The opposite parties should have filed the courier receipt to let this Forum know that on which date the cheque was dispatched . On the other hand , the complainant had denied that he had ever received the cheque in question. The complainant had filed an affidavit in support of the allegations made in the complaint . Not only this he had also served the opposite party with legal notice No doubt ,the opposite parties had also filed affidavit of Sh Ravinder Dhule , Manager Legal ICICI Lombard General Insurance Chandigarh but in his affidavit he had never deposed that on which date the cheque was dispatched and this fact had deliberately been concealed.

It was the duty of the opposite parties to place on record the receipt of the courier to prove that the cheque had been delivered to the complainant but the same had not been done . Hence an adverse inference has to be drawn against the opposite parties for concealing the material facts regarding dispatch of cheque. From the above discussion , it is quite apparent that the opposite parties have failed to prove and establish that the cheque in the sum Rs.8369/- was sent to the complainant and the same was received by him which certainly amounts to deficiency in service on the part of the opposite parties. The complainant had to run from pillar to post to get his claim and he had suffered harassment due to the act of the opposite parties . Therefore, opposite parties are liable to pay Rs.2000/- on this score.

9 In the light of above discussion, the complaint is allowed and the opposite parties are directed to pay Rs. 8369/- to the complainant with interest at the rate of 9% per annum from the date of filing of the complaint till payment and also to pay Rs.2000/- on account of compensation. Apart from this , the opposite parties are also directed to pay Rs.1500/- as costs of litigation.

Tony Jain, aged 47 years, son of Sh. Jagdish Chander Jain, resident of B-894, Industrial Area-A, Link Road, Ludhiana.
…..Complainant.
Versus

1- M/s General Motors India Pvt. Ltd., 6th Floor, Tower-A, Global Business Park, Mehrauli-Gurgaon Road, Gurgaon, through its Authorized Dealer M/s Padam Motors, Dhandari Khurd, GT Road, Ludhiana.

2- M/s Padam Motors, Dhandari Khurd, G.T. Road, Ludhiana, through Manager.

3- M/s ICICI Lombard Insurance Company Limited, 3rd Floor, Kunal Tower, Mall Road, Ludhiana.

….Opposite parties.

O R D E R

1- This complaint is instituted by the complainant, to direct opposite parties no.1 & 2, to give him defect free new Chevrolet Optra car and Rs.9 lacs compensation. Case of the complainant, briefly spelled, is that purchased Chevrolet Optra car bearing chassis no.MA-6NF-19DT-7HL-03348, engine no.Z205114141079K, vide invoice no.R00632 dated 14.1.2008 for Rs.9,14,000/-, bearing temporary registration no.PB-03L-4335.

The same was got insured with opposite party, by paying insurance premium of Rs.30,000/-. On 20.2.2008, while driving the car on G.T. Road, between Chowk Basti Jodhewal towards Samrala Chowk, the car developed fault and engine oil leaked/littered on the road. The car was stopped and opposite party no.2 was intimated. The car was got shifted to workshop of opposite party no.2, by twochain. Previously, complainant had intimated opposite party no.2 that the car had manufacturing defect, opposite party had taken two days time, to rectify the same, on ground that spare parts are not available. Needful would be done after obtaining such parts from opposite party no.1.

After 7 days, was intimated by opposite party no.2 that engine of the car had ceased and that opposite parties no.1 & 2 would not rectify the same. Though the vehicle was under guarantee of one year and was driven 1800 kmts. only. Consequently, opposite parties no.1 & 2 were not liable, to deliver a new car, in lieu of defective one. The defect in the car was inherent and manufacturing. But they tried to wriggle out of the liability which caused immense physical and mental agony to the complainant. His business also suffered, causing loss of Rs.5 lacs . The vehicle is still under custody of opposite parties no.1 & 2. So, claimed that opposite parties resorted to unfair trade practice. Legal notice dated 15.3.2008 was issued to opposite parties no.1 & 2, to which they paid no heed. Hence, this complaint under section 12 of the Consumer Protection Act, 1986.

2- Opposite party no.1 in their reply, did not deny purchase of car by the complainant. But they disputed and denied rest of his allegations. It is denied that car had manufacturing defect or the same developed some fault. Complainant purchased vehicle on 14.1.2008. From job card dated 9.2.2008, it appears that the vehicle had met with accident qua which, complainant brought the car for repair on 9.2.2008. For repairing damage to the accidental vehicle, repair amount of Rs.19345/- was charged. Thereafter, complainant again brought the vehicle to the workshop on 22.2.2008, with a serious damage to underbody of the vehicle, which could have only been caused in an accident/mishap or due to rash/negligent driving. So, complainant has levelled false allegations that the car on 20.2.2008, developed some fault.

Estimates for repair were prepared. The damage was due to rash driving of the vehicle. Thus, the vehicle had met with two accidents within 35 days of its purchase. Consequently, complainant is not entitled for any replacement of the vehicle, as it is not having any manufacturing or inherent defect. Allegations of the complainant, are false. The accidental vehicle brought on 22.2.2008, was also inspected by surveyor of the insurance company on 27.2.2008. Estimates of repairs were prepared by opposite party no.2. So, it is claimed that the vehicle got damaged due to rash and negligent driving and had no manufacturing defect. Therefore, complaint has no cause against opposite party.

3- Opposite party no.2 vide separate reply, also took the same defence, as has been taken in its reply by opposite party no.1. They in totality, have denied allegations of the complainant that on 20.2.2008, car suddenly developed fault, due to which engine oil leaked on the road and then they toed the vehicle to workshop, on request of complainant.

The vehicle was purchased on 14.1.2008, but after 25 days of purchase, was brought to the workshop vide job card dt. 9.2.2008. Repair cost of Rs.19345/- vide job card dt. 9.2.2008, was charged. Job card dated 22.2.2008 alongwith estimates of repair, required to be undertaken were given and vehicle was brought to workshop on 22.2.2008, with serious damage to underbody of the vehicle, caused in an accident or mishap, due to rash/negligent driving. There was no manufacturing defect in the vehicle. Out of total cost of accidental job, Rs.12310/- was paid by insurance company opposite party no.3 and remaining amount of Rs.6750/- was paid by the complainant himself in cash qua which, receipt no.2744 dated 15.2.2008 was issued to him.

4- Opposite party no.3-Insurance Company vide separate reply, claimed that this Fora has no jurisdiction, to try the complaint which isn’t maintainable. They claimed that there is no deficiency in service on their part. As on receipt of claim lodged by the complainant, same was entertained, processed and M/s R.P. Bhasin & Co. were appointed as surveyor and loss assessor.

The surveyor after inspection, taking photographs, assessed loss to the tune of Rs.7483.60 and prepared his report dated 23.5.2008. The report was submitted to them by the surveyor. Surveyor called upon complainant, to furnish original invoice etc. including driving license, but he failed to send the documents. So, claim was treated by opposite party no.3 vide letter dated 24.5.2008, to be withdrawn. Complainant claimed estopped by own act and conduct, to file the complaint. They have also denied and controverted allegations of the complainant that on 20.2.2008, while driven, the car developed fault, due to engine oil leakage.

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

6- We have heard arguments addressed by the learned counsel for the parties and scanned the documents and other material placed on the file minutely.

7- After going through the record, it is manifest that vide invoice Ex.P1 of opposite party no.2, complainant purchased the car in question for Rs.9.14 lacs and got it insured from opposite party no.3, vide certificate Ex.P3.

8- It is in these circumstances for the complainant, to prove that the vehicle so purchased, had a manufacturing defect. On this score, complainant simply relies on his own affidavit Ex.PX alongwith registered notice Ex.P4. But affidavit and notice would itself not be sufficient, to bring home his allegations of the vehicle having manufacturing defect. Outrightly, we may say that complainant has miserably failed to prove such allegation of his.

9- Whereas, material which has come on the record, go to show that damage to his car, was on account of rough or negligent driving or due to some accident. In coming to such conclusion, we are fortified from history card Ex.R1/A dated 9.2.2008. The vehicle on that day, was taken to workshop of opposite party no.2, for attending accidental job. Vide that history card, total bill of Rs.19345/- was raised.

Next on the record, is estimate of opposite party no.2 qua car of the complainant. Sh. V.M.N. Rao, General Manager of opposite party no.2, in his affidavit Ex.R2/A, has stated that case filed by the complainant, is frivolous. The vehicle on 9.2.2008 vide job card of even date, was opened for repair and estimate of total cost of repair Rs.19345/-, was prepared. Repair order to do accidental job, is Ex.R2/B and invoice of repair amounting to Rs.19345/- is Ex.R2/C. Out of total job cost, a sum of Rs.12310/- was paid by insurance company (Opposite Party no.3) in the name of the complainant vide receipt dated 22.2.2008 and remaining Rs.6750/- was paid by the complainant himself, vide receipts dated 15.2.2008 Ex.R2/D and Ex.R2/E respectively.

He further deposes that vehicle was again brought to the workshop, for accidental repair, vide job card dated 22.2.2008 alongwith estimate and supplement estimate was prepared. The vehicle had serious damages to its underbody, which could have only been caused in accident or mishap or rash driving. Thus, the vehicle had met with two accidents within 35 days of its purchase. There was no manufacturing defect in the vehicle. He says repair order dated 22.2.2008 Ex.R2/G and estimates so prepared, are Ex.R2/H and Ex.R2/I.

10- Sh. Sat Parkash, Manager of opposite party no.3, in his affidavit Ex.RW5-1/A, has also claimed that accidental claim of his vehicle, so lodged by the complainant, was processed and entertained and M/s R.P. Bhasin & Co. surveyor and loss assessor, were appointed, to assess the loss, who after inspection of damaged vehicle, assessed the loss at Rs.7483.60. Thereafter, called upon complainant, to produce original documents which he failed to do. Therefore, claim was treated as withdrawn. He in this behalf, in these aspects, is corroborated by affidavit Ex.RW2/A of Sh. R.P. Bhasin, Surveyor and his report Ex.R5.

11- All these aspects clearly spell that complainant has failed to prove the manufacturing defect in the vehicle. Rather, the defect occurred on account of accident and under the insurance policy, insurance claim was lodged by the complainant with opposite party no.3. Consequently, finding no merits in the complaint, the same stands dismissed.

Harjot Kaur aged 37 years, wife of Sh. Satwant Singh, resident of H.No.2, Sarabha Nagar (Ext.) village Dad, Ludhiana through her attorney Sh. Satwant Singh son of Sh.Mukhtiar Singh, resident of H.No.2, Sarabha Nagar 9Ext.) Village Dad, Ludhiana.

(Complainant)

Vs.
1. M/s ICICI Lombard General Insurance Company Limited, Regd. Office: ICICI Bank Towers, Bandra Kurla Complex, Mumbai-400 051, through its Chairman/M.D./authorised signatory.

2. M/s ICICI Lombard General Insurance Company Limited, branch at Surya Tower, 108, 5th Floor, Space No.1, The Mall, Ludhiana through its Branch Manager.

(Opposite parties)
O R D E R

1. After purchasing Ford Fusion+ car bearing registration no.PB10-BS-6395 for Rs. 7,29,000/-, complainant got it financed from ICICI Bank, Ludhiana for Rs. 6,00,000/- and obtained insurance of the car valid upto 11.11.2007 for Rs.5,56,000/- by paying the insurance premium of Rs. 17,615/- vide cover note no. PD3336249. That car on 1.7.2007 met with an accident when husband of the complainant Sh. Satwant Singh had taken the car to village Lalton Kalan. But when he reached village Dad, a cow came in front of the car and when he tried to save her, the car struck against the tree and prior to strucking, the car was taken to Kacha portion of the road having stones, which caused damage to the engine. Resultantly, whole body as well as engine of the car was damaged.

Qua accident, DDR no.20 dated 1.7.07 was lodged in P.S. Sadar, Ludhiana. Accident was reported to the opposite party who appointed Sh. R.P. Bhasin surveyor. The surveyor after survey had assured that full value of the insurance cover note would be paid to the complainant as there was total loss to the vehicle which was not repairable and that repair amount would exceed the insurance cover value of the vehicle. Thereafter on such assurance, complainant got parked the car in her house with the help of a crane. Supplied all necessary documents as desired by the surveyor. Thereafter, had been approaching the opposite party to settle the claim, which was not settled by them. The complainant also got estimate of the damage prepared through mechanic, who assessed the repair cost at Rs. 6,46,327/-.

Subsequently, the surveyor of opposite party after one year started saying that the company is not going to pay total loss claim and that the complainant may get the vehicle repaired as per their policy. The complainant did not accept the suggestion as it would have been dangerous to travel on such car after so called repair, due to total damage of the vehicle. So, claimed by filing the present complaint under section 12 of the Consumer Protection Act, 1986, that the claim was wrongfully repudiated by the opposite party and they are liable to pay total insurance claim of Rs.5,56,000/- along with compensation of Rs.2,00,000/- and litigation costs.

2. Opposite parties in their reply pleaded that the complaint is not maintainable, as complainant concealed material facts from the Fora. It is, however, admitted that the vehicle was got insured by the complainant and she lodged insurance claim. Claim was entertained, investigated by appointing the surveyor. The surveyor after inspection assessed the loss to the vehicle to the tune of Rs.1,83, 971/-. Complainant was approached to give approval for repair of the vehicle, but she did not respond to the calls and letters dated 6.9.07 and 26.9.07 of the opposite party. It is consequently denied that there was total loss of the vehicle which was not repairable. The vehicle is claimed repairable as apparent from photographs. Averred that there is no deficiency in service on their part.

3. In order to prove their respective contentions, both the parties adduced their evidence by way of affidavits and documents.

4. We have heard the arguments addressed by the ld. counsel for the complainant. None appeared at the time of arguments on behalf of the opposite party.

5. It is admitted that the vehicle was got insured by the complainant from the opposite party and during currency and validity of the insurance coverage, complainant on account of damage to the vehicle in an accident, lodged insurance claim. On claim being lodged, opposite party appointed R.P. Bhasin & Company as Surveyor and Loss Assessor. Said surveyor and loss assessor vide report Ex.R.1 assessed damage of Rs.1,83,970.50p to the vehicle and also reported that repair of the vehicle has not been done till date and estimate is subject to repairs.

6. Whereas case of the complainant is that the surveyor of the opposite party after inspection/checking of the vehicle found it to be completely damaged and suggested that repair cost would exceed the amount of insurance coverage, but subsequently backed out of such assertions and contrary held the vehicle to be repairable. In the mean time, complainant got the vehicle checked to a private mechanic Sh. Taranjeet @ Jagdev Singh prop. of Jag Motors, who after checking and inspecting the vehicle vide estimate Ex.C.7 concluded that Rs.6,46,327/- were required to be spent on the repair of vehicle. To support this report, affidavit Ex.CW2/A of said mechanic is filed.

7. It is in such a scenario, we are required to conclude whether the vehicle is repairable or is a total loss and repair amount would exceed the insurance coverage amount. We may state that qua insurance of the vehicle, parties are governed by the insurance contract. While assessing compensation, depreciation, salvage value and excess clause etc. required to be considered. These aspects were considered by Sh. R.P. Bhasin in his report Ex.R.1 while assessing the loss of Rs.1,83,970.50p. Whereas Sh. Taranjeet Singh @ Jagdev Singh in his estimate Ex.C.7 had not taken such factors into consideration before calculating total loss to the vehicle. In view of these aspects, such estimate Ex.C.7 of Sh. Taranjeet Singh @ Sh. Jagdev Singh would not be of any help or consequence, to conclude total damage suffered by insured vehicle of the complainant. No doubt, complainant through affidavit Ex.CW1/A of her husband claimed total loss of the vehicle in the accident.

Such aspects stand controverted by opposite party through affidavit Ex.RW1/A of Sh. Ravinder Dhall authorised representative of the opposite party. As per his affidavit, on receipt of surveyor report, required complainant to give consent for repair of the vehicle but she did not respond. He in this behalf stand authenticated from communication addressed by the opposite party to the complainant as apparent from Ex.R.2 letter dated 6.9.07 and Ex.R.3 dated 26.9.2007. There is no proof that these communications were answered by the complainant.

8. In order to prove that there was not total loss to the vehicle, copies of the photograph thereof Ex.R.4 are relied. Bare look of photographs shows that there was some damage to front portion of the car including bonnet. This also means and suggests that it was not case of total loss of the vehicle.

9. Hon’ble Supreme Court in case New India Assurance Company Vs. Pardeep Kumar 2009 (CTJ) 599 (Supreme Court) has held that estimate of loss by the surveyor is pre requisite for settlement of the insurance claim of Rs.20,000/- or more. Though surveyor’s report is not last and final word.

10. Hon’ble National Commission in case United India Assurance Company Vs. Maya, reported in 2008 CTJ page 580 (NC) has also held that report of the surveyor should not be dismissed summarily. It is to be given importance as surveyor is an independent authorised person appointed under the relevant provisions of the Insurance Act.

11. In the instant case, we have no reason to discard the report of the surveyor as he had made it after proper inspection, checking and after taking into consideration terms and conditions of the insurance policy. Whereas the estimate prepared by the mechanic of the complainant appears to be not in conformity with terms and conditions of the insurance policy, as certain aspects referred earlier were not considered by him.

12. In view of these aspects, we hold and conclude that the vehicle as found by the surveyor of the opposite party is repairable and complainant would be entitled for amount as assessed by the surveyor.

12. In the light of discussions above, we allow this complaint and for loss suffered by the complainant direct opposite party to pay the amount of loss of Rs. Rs.1,83,970/- as assessed by its surveyor irrespective of the conditions whether the vehicle is got repaired by the complainant or not. Because damage to that extent to the insured vehicle is established. Order be complied within 30 days of the receipt of copy of the order, failing which opposite party shall be liable to pay this amount with interest @9% per annum from the date of complaint till payment.

B. Rajeshwar, S/o. Narayana, age 50 years Occ: Business, R/o. H.No.2-2-80, Markendeya Temple, Gandhi Road, Koratla mandal proper, Karimnagar dist.

… Complainant.

AND

1. ICICI Lombard General Insurance Company Limited, R/by its Branch Manager, H.No.3-1-777, Panchala Complex, Opp: Court Building , Jagtial Road, Karimnagar.

2. ICICI Lombard General Insurance Co. Ltd., Osman Plaza, 6-3-352/1, Banjara Hills, Hyderabad – 500 034.

…Opposite Parties

::ORDER::


1. The averments in brief of the complaint are that he is the owner of TVS-XL bearing no. AP-15, AF-1653 and the same was missed at 16.00hrs on 8.3.2008 when it was parked in front of his house. The worth of vehicle is Rs.30,000/-. Inspite of repeated demands to opposite party to whom the vehicle was insured they are not paying the amount.


2. The opposite party filed counter denying that opposite party is owner of the vehicle TVS-XL bearing no. AP-15, AF-1653 and it was found missing when it was parked in front of his house as alleged. It is further alleged that the complainant has filed complaint on 5.7.2008 stating that on 8.3.2008 at 16.00hrs some unknown offenders stolen his vehicle and the Police registered the case in Crime No.153/2008 but no charge sheet filed. The complainant filed false complaint after 4 months of the incident in order to get wrongful gain. The vehicle is insured with them and so effective on the date of alleged offence covering the risk. As such they are not liable to pay and prayed to dismiss the complaint.


3. To prove the case of complainant the complainant filed his Proof of Affidavit reiterating the facts about the missing of vehicle from 8.3.2008 onwards. The Legal Manager of Office of opposite party also filed Proof of Affidavit reiterating the contents of the counter. On behalf of complainant Ex.A1 to A7 are marked. Ex.A1 is the copy of FIR in Crime No.153/2008 Dt: 5.7.2008 issued by Sub Inspector of Police, Korutla. Ex.A2 is the Xerox copy of Motor Insurance Cover Note in the name of complainant Dt: 17.9.2009. Ex.A3 is the Xerox copy of Certificate of Registration in the name of complainant. Ex.A4 is the copy of Invoice cum sale letter for Rs.22,750/-. Ex.A5 is the Xerox copy of Professional Courier Receipt. Ex.A6 is the letter from complainant addressed to opposite party Dt: 8.4.2008. Ex.A7 is Xerox copy of another letter from complainant addressed to opposite party Dt: 8.9.2008.


4. Now the point arises for consideration is whether the complainant is entitled for the claim as prayed for?

5. The specific case of the complainant is that he is owner of vehicle TVS-XL bearing no. AP-15, AF-1653 and the same is insured with opposite party when the same was parked in front of his house on 8.3.2008, it was taken away by somebody. As such he is entitled for the value of the vehicle since the vehicle is insured with opposite party. There is no dispute that the complainant is owner of the vehicle as purchased the same for Rs.22,750/- from Adarsha Motors as evident under Ex.A4. It is also not in dispute that the vehicle is insured with opposite party valid from 17.9.2007 to 16.9.2008 and it is valid as on the date of incident i.e. 8.3.2008. But except filing a copy of FIR Ex.A1 he did not file any other documents to prove that there was theft committed of his vehicle.

Further as seen from Ex.A1 FIR it appears the case is registered on 5.7.2008 and the incident occurred on 8.3.2008 and there is no explanation from the complainant about the delay of 4 months 3 days in lodging the FIR. He did not file any Charge Sheet whether the theft is investigated or not or it was closed as undetectable by filing copy of Final Report. A letter also has been filed by the complainant given to Motor RT Authorities Dt: 30.7.2008 requesting not to transfer the vehicle to anybody even this letter is also given after 4 months of the incident.

In the absence of non-filing of proper criminal records by the complainant about the theft and pendency of investigation mere alleging of the FIR after 4½ months cannot be entitled for complainant to claim risk covered under the policy. Further the material is also proving the complainant did not report the matter to opposite party immediately after the incident or within reasonable time to enable them to investigate into the matter and do needful and thus he violated the terms and conditions of the policy also. Hence, the opposite party rightly rejected the complaint for the latches committed by him and I do not find any deficiency of service on the part of opposite party and the complaint is liable to be dismissed and no order to costs.

Sarapuri Dinesh Kumar,

S/o. Sivaiah Naidu,

Aged 27 years, Hindu,

Residing at Netta Kuppam Village,

Ramachandrapuram Mandal,

Chittoor District. … Complainant



vs



1. ICICI Lombard General Insurance Company Ltd.,

rep. by its Branch Manager,

K.V.Towers,

Tilak Road,

Tirupati.



2. ICICI Lombard General Insurance Company Ltd.,

Rep. by its Branch Manager,

Labbipet,

Vijayawada City. … Opposite parties.






ORDER


This complaint is filed under Section-12 of Consumer Protection Act 1986, to pass an order in favour of the complainant directing the opposite parties to pay a sum of Rs.2,00,000/- towards compensation for transportation to the hospital, for medicines and extra nourishment for pain and suffering and for permanent disability with interest at 12% per annum from the date of filing of this complaint till the date of realization, to pay the costs of the complaint and also pass such other relief or reliefs as the Hon’ble Forum may deem fit and proper in the circumstances of the case.

2. The factual matrix leading to filing of this complaint is set-out hereunder:-

a. The case of the complainant is that he was the owner of the car bearing No.AP9 BH 6788 (Ford Icon). On 05.07.2007 at about 6 p.m. the complainant along with his family members started from Tirupati to go to Kadapa in his car and at that time he was driving the said car. At about 10.30 p.m. on the said date, when the car after passing Nandalur and when it reached near Ammagaripalli, the right side front tyre got punctured and dragged towards right side of the road and turned turtile, though he was driving his vehicle cautiously, resulting which, the complainant sustained multiple fractures to his left hand, injury to forehead and injuries to all over the body. The intimates of the car were also sustained injuries and one person died on the spot.


The above said vehicle involved in the accident was insured with the opposite party’s company under a valid insurance coverage vide policy No.3001/51538738/00/000. The complainant was having valid driving license at the time of accident. He paid an amount of Rs.17,700/- towards premium for the year 2007 i.e. valid up to 01.04.2008. The said car which is involved in the accident was badly damaged and on claim, the opposite party’s company paid the amount towards compensation for the car as it was damaged totally. The complainant also paid Rs.100/- under the head towards personal accident cover, for coverage of risk of owner cum driver. As per the terms of the above said policy issued in favour of the complainant, that the opposite party – company, is liable to pay Rs.2,00,000/- as fixed liability towards compensation under personal accident coverage for the owner cum driver of the car.

b. The above said complainant first admitted in Government hospital i.e. Rajiv Gandhi Institute of Medical Sciences (RIMS) of Kadapa on 05.07.2007. Later he was shifted to Chennai and admitted in MIOT hospital on 08.07.2007, wherein two surgeries were conducted to his left hand and he incurred more than Rs.2,00,000/- towards treatment, medicines, conveyances and other expenditure. Due to the above said accident, the movements of complainant’s left hand are restricted and he is unable to lift heavy objects. His left hand became bend slightly and he is unable to driver motor-bike, car etc. because of the accident. Subsequently, the complainant got issued a legal notice to the 2nd opposite party on 19.09.2008 and the same was acknowledged by the 2nd opposite party. But the said 2nd opposite party did not take any steps to pay the amount claimed by the complainant so far.


The opposite parties herein have completely neglected the payment of the compensation claimed by the complainant though he is legally entitled as per the terms and conditions of the policy issued in his favour for which the complainant suffered loss, harassment and mental agony. Under the said circumstances, the complainant is obliged to file this complaint before this Hon’ble Forum against the opposite parties. The cause of action for the complaint arose on 26.03.2007 when the complainant paid the premium amount towards insurance of the car (vehicle) and obtained the policy when the vehicle was involved in the accident on 05.07.2007, when the complainant sustained serious injuries in the said accident and also on 19.09.2008 when the legal notice was issued and the same was received by the 2nd opposite party. The complainant is the resident of Netta Kuppam village, Ramachandrapuram mandal, Chittoor District, within the jurisdiction of this Hon’ble Forum. Hence the complaint.

3. In response the 2nd opposite party resisted the complaint by filing written version and the same was adopted by 1st opposite party denying the allegations set-out in the complaint except those which are specifically admitted in the written version. The complainant is put to strict proof of every one of the remaining allegations mentioned in the complaint. The 2nd opposite party in paragraph.3 of his written version stated that the allegations mentioned in paras.3,4,5,6,7,8 and 9 of the complaint are all not true and correct. In paragraph.4 of the written version submitted by the 2nd opposite party stated that as per the wound certificate of the complainant, the complainant sustained three injuries out of which injury No.1 is simple in nature and other injuries are grievous.


That all the grievous injuries do not result in any permanent injury as contemplated under Section-142 of M.V.Act. The 2nd opposite party, however, submitted that the above said accident happened due to sole negligence of the complainant herein. Though the above said policy covers the personal accident cover for owner / driver, the disability is sustained by the complainant as to be proved with documentary evidence. The complainant herein did not file any documentary proof to show that he sustained permanent disability. So, in the absence of any such proof, the 2nd opposite party is not liable to pay any compensation as claimed by the complainant. The said complainant filed a petition in M.V.O.P.No.117 on the file of MACT, Kadapa, which is still pending for disposal.


The complainant herein filed this complaint before this Forum suppressing the above said fact to get wrongful gain. The investigator is appointed to investigate the alleged accident and report is pending. In the absence of investigation report, it is not possible to come to the conclusion that whether the 2nd opposite party is liable to pay the compensation or not. So, the 2nd opposite party reserves the right to file additional counter, if any, with the prior permission of the Hon’ble Forum and when it receives additional information about the alleged accident. It is prayed that the Hon’ble Forum may be pleased to dismiss the complaint with costs.

4. In support of the allegations made in the complaint, the complainant filed 10 documents, which are marked as Exs. A1 to A10. Ex.A1 is photostat copy of First Information Report dt:06.07.2007 issued by the Station House Officer, Ontimitta P.S., Kadapa District. Ex.A2 is photostat copy of wound certificate dt:07.08.2007 issued by Rajiv Gandhi Institute of Medical Sciences (RIMS), Kadapa, and the same is attested by Station House Officer, Ontimitta P.S., Kadapa district. Ex.A3 is the original policy copy i.e. Private Car Package Policy – Certificate cum Policy Schedule issued by the 1st opposite party on 02.04.2007 in favour of the complainant / insured. Ex.A4 is office copy of legal notice dt:19.09.2008 issued by the advocate namely M.Sudhakar Naidu of Kadapa on behalf of the complainant to the 2nd opposite party. Ex.A5 is the photostat copy of in-patient bill dt:13.07.2007 for Rs.95,169/- issued by MIOT hospitals, Chennai.


Ex.A6 is the original receipt for Rs.50,000/- paid by the complainant and issued by the MIOT hospitals, Chennai. Ex.A7 is bunch of 7 medical bills in number for Rs.2,770/- issued by MIOT hospital, Chennai. Ex.A8 is the photostat copy of Discharge Summary dt:13.07.2007 issued by MIOT hospitals, Chennai, in favour of the complainant. Ex.A9 is the original certificate issued by Dr.V.V.Narayana Rao, M.S.(Ortho), Orthopedic Surgeon, Guntur, in favour of the complainant stating that permanent – partial disability of 50-60%. Ex.A10 is the photostat copy of Driving Licence of the complainant issued by A.P.Transport Department.

5. In support of the averments made in the written version, the opposite parties filed one document and the same is herewith marked as Ex.B1. Ex.B1 is full text of the policy covering terms and conditions of it, filed on behalf of the opposite parties.





6. Both the counsels have filed their written arguments. The complainant has filed his affidavit evidence in support of his case. The opposite parties have not filed their affidavit evidence.

7. On the basis of the pleadings and documentary evidence, the points that arise for determination are:-

1. Whether there is any deficiency in service on the part of opposite parties towards the complainant?

2. Whether the complainant is entitled to the reliefs as prayed? If so, to what extent?

3. To what result?

8. Point No.1:- (a) The basic facts of this consumer case are not disputed. So, they are not reproduced here to avoid a repetition of the same once again. The learned counsel for the complainant Sri.M.Sidda Reddy has vehemently argued that the complainant has valid driving license at the time of accident on 05.07.2007 and it is clearly proved by the document marked as exhibit A.10. Further he argued that the F.I.R. (Ex.A1) wound certificate issued by Rajiv Gandhi Institute of Medical Sciences (RIMS), Kadapa are proved the accident and also the nature of injuries sustained by the complainant in the said accident. He also further contended that (Ex.A9) permanent disability certificate issued by Dr.V.V.Narayana Rao, Orthopedic Surgeon of Adarsha Hospitals, Guntur, is clearly established the fact of permanent – partial disability of 50-60% of the complainant after examining him on 16.02.2008.


In this connection, the said learned counsel for the complainant cited a decision rendered by our High Court of A.P., Hyderabad, which is reported in 2007(1) ALT at page no.648 in a case between Syed Saleem and Others Vs. Abdul Shukur and another wherein it was held that proof of permanent partial disability – no requirement under the Motor Vehicles Act, 1988, Section-166, and rules framed thereunder to prove the disability by examining the very same doctor who treated the victims – disability certificate need not be obtained from the very same doctor – Assessment of disability can be made and certificate be given by any qualified medical practitioner and it is sufficient if he is examined to prove the certificate issued by him and so it is a valid one and if can be taken into consideration while assessing compensation amount.

(b). The said learned counsel for the complainant also further argued that the insurance policy issued by opposite parties in favour of the complainant on 02.04.2007 (Ex.A3) is clearly established that the policy is in force on the date of accident and it cover the risk of the owner / driver to a tune of Rs.2,00,000/- and also the discharge summary of complainant issued by the MIOT hospital, Chennai, and medical bills (Ex.A5, A6, and A8) are proved that the complainant has undergone treatment and incurred expenditure for his health purpose. Finally, the said learned counsel for the complainant has argued that he has undertaken not to press the claim before MACT, Kadapa, subject to award of compensation in this consumer case. He further contended that the complainant has proved his case and claim by submitting documentary evidence and hence the complaint may be allowed with costs.

(c) In response, the learned counsel for the opposite parties Sri.S.Niranjan Babuji has also vehemently argued that apart from the facts of the case and the opposite parties issued policy (Ex.B1) to the owner of the vehicle i.e. complainant and the said policy covers the personal accident of owner / driver if he sustains permanent disability as contemplated under Section-142 of Motor Vehicles Act, 1988. He further argued that the complainant took treatment for the injuries caused to him at MIOT hospital, Chennai, and the doctors who treated him at Chennai did not issued any permanent disability certificate to the complainant.


The disability certificate issued by the doctor at Guntur, on 16.02.2008 is filed before this Hon’ble Forum to take in to consideration but the doctor who issued the permanent partial disability certificate in favour of the complainant, did not treated him and the said certificate cannot be taken into account in view of the decision of the Andhra Pradesh High Court. He also further argued that as per the terms and conditions of the policy (Ex.B1), if the driver / owner sustains nature of injuries as mentioned in the policy is alone, subject to holding an effective driving license in accordance with the provision of Rule-3 of Central Motor Vehicles Rules, 1989 at the time of the accident.


The complainant did not file his driving license to show that he possesses valid driving license to drive such vehicle at the time of accident. The complainant filed a petition bearing No.M.V.O.P.No.117/2008 on the file of MACT, kadapa, against 2nd opposite party seeking compensation which is still pending for disposal and inspite of it, the complainant filed this complaint against the opposite parties herein to get wrongful gain. So, the opposite parties are praying this Hon’ble Forum to dismiss the complaint with costs. We have carefully considered the respective contentions of the parties.

(d) On perusal of record and after hearing of the arguments of both the learned counsels, it is crystal clear that as per (Ex.A10) driving license issued by RTA, Hyderabad, on 28.04.2001 in favour of the complainant and its validity upto 27.04.2021. The date of accident is occurred on 05.07.2007 at about 10.30 p.m. as per Ex.A1 i.e. F.I.R. With regard to the terms and conditions of the policy as per Ex.B1 is that “Section-III Personal Accident Cover for Owner – Driver:


The company undertakes to pay compensation as per the following scale for bodily injury / death sustained by the owner-driver of the vehicle in direction connection with the vehicle insured or whilst driving or mounting into / dismounting from the vehicle insured or whilst traveling in it as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in:

Nature of injury Scale of Compensation

1. Death 100%

2. Loss of two limbs or sight of two eyes or one limb 100%

And sight of one eye.

3. Loss of one limb or sight of one eye 50%

4. Permanent total disablement from injuries other 100%

Than named above.

Provided always that

A) compensation shall be payable under only one of the items (i) to (iv) above in respect of the owner driver arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs.2,00,000/- during any one period of insurance.

B) No compensation shall be payable in respect of death of bodily injury directly or indirectly / wholly or in part arising or resulting from or traceable to (1) intentional self injury suicide or attempted suicide physical defect or infirmity or (2) an accident happening whilst such persons is under the influence of intoxicating liquor or drugs.

c) Such compensation shall be payable directly to the insured or to his / her legal representatives whose receipt shall be the full discharge in respect of the injury to the insured.

1) This cover is subject to

a) The owner-driver is the registered owner of the vehicle insured herein;

b) The owner-driver is the insured name in the policy.

c) The owner-driver holds an effective driving license, in accordance with the provisions of Rule-3 of the Central Motor Vehicles Rules, 1989, at the time of the accident”.

The owner / driver of the said car hold an effective driving license as per the rules of the Central Motor Vehicles Rules, 1989, at the time of accident.

(e) So far as the above said decision of Hon’ble High Court of A.P. referred by the said learned counsel for the complainant to apply to the facts of the case in relation to permanent, partial disability certificate issued by the said doctor of Guntur is valid, even though he did not treated the complainant and after examining him and certified that 50 to 60% permanent – partial disability.


It is also provided by the medical bills produced before us (Ex.A5 to A7) that the complainant incurred expenditure towards his treatment at MIOT hospital, Chennai. The policy (Ex.A3) issued by the opposite parties office at Hyderabad in favour of the complainant on 02.04.2007 which contains all the details including P.A. cover for owner-driver of Rs.2,00,000/- under Section-III: CSI with regard to limits of liability. The said learned counsel for the opposite parties, even though he mentioned in para.4 of his written arguments about it and the decision of our High Court of A.P. for applicability to the facts of the case about non-treatment of the complainant by the doctor who issued a certificate (Ex.A9) cannot be considered but he failed to bring to our notice about the contents of the decision and also a citation for our reference for the reason best known to him.


In the absence of it, we cannot presume that there is a Rule of Law against the complainant and the certificate issued by the doctor at Guntur is invalid and unenforceable. The complainant filed his affidavit reiterating the same contentions as mentioned in the complaint. We are of the opinion that the complainant has produced relevant documents in support of his case. AS per Ex.A9 the doctor of Guntur who issued a certificate of permanent – partial disability 50-60% in the case of the complainant and also he is having that disability and we assessed that 50-60% means the complainant has eligibility to get the said ratio of 55% compensation out of Rs.2,00,000/- as there is deficiency in service on the part of opposite parties towards the complainant. One cannot measure damages for mental agony accurately.


More over, as per the ruling of Chattisgarh State Consumer Disputes Redressal Commission, Raipur, in the case of Smt. Chanda Devi Kothari Vs. The United India Insurance Co. Ltd. and another which is reported in 2005(2) CPR 640 that insurance claim is to be settled within two months of submission of material documents otherwise insured is entitled to interest @ 9% on awarded claim amount. The opposite parties herein are sufficiently delayed the whole issue and hence interest of 9% on awarded amount is ordered to pay to the complainant. We find that sufficient substance in the complaint of the complainant and hold that the opposite parties are deficient in providing service to the complainant.

(f). It is to be remembered that proceedings before the Consumer Fora are inquisitorial and not adversary. The orders are required to be passed in accordance with justice and equity on the basis of the evidence available on record. The Consumer Protection Act, 1986 is for the protection of consumer and matters are required to be decided by having rationale approach and not technical one. This is made clear in Indian Photographic Co. Ltd. Vs. H.D.Showrie – 199 (6) SCC 428.

(g). Insurance, generally, is a contract of indemnity between the insured and the insurer, where the insurer promises to indemnity the insured against the loss which may sustain due to a particular risk which is covered under the policy. Insurance is a contract of good faith and both the parties the insured and the insurer have to disclose all the necessary facts within their knowledge to each other. In every case the terms and conditions of the policy would have be looked into and only if the claim falls within the terms and conditions the compensation would be paid. The terms and conditions of the policy will have to be perused and each case will have to be decided on merits and on facts and circumstances of the case.

(h). The consumer protection is a benevolent legislation intended to provide cheaper and speedy relief to the consumers. Such relief should not be derived by placing too stringent construction of clauses or by insisting upon rigid proof of averments made in the complaint. Though it is true that insurance company are vested with the monies of the public as a trustee, they have to safeguard and take all care and precaution before accepting a claim with a view to see that there is no unjust claim by persons. Still, at the same time, where we find that the claim appears to be a bonafide one and there is nothing to show that there is any tinge of doubt or suspicion, as far as possible, the claim should be honoured. Hence, we are satisfied that this consumer case is a fit one wherein we have to give the relief which is adequate and reasonable as per the facts and the law to the complainant.

(i). The complainant shall withdraw his petition bearing No.M.V.O.P. No.117/2008 on the file of MACT, Kadapa, against 2nd opposite party seeking compensation as he is not entitled to get double benefit from the opposite parties. Because the learned counsel for the complainant has agreed to withdraw the above said M.V.O.P. No.117/2008 in case of this consumer dispute resolved by this Forum by awarding compensation to the complainant. So, by filing this order of consumer case on hand to be filed before MACT, Kadapa, by the complainant immediately for withdrawal of M.V.O.P. No.117/2008 for the same relief.

(j). From the material on record, we are thoroughly satisfied that the opposite parties have without any valid and justifiable ground and without any good faith, has simply repudiated the claim of the complainant which certainly amounts to imperfect and inadequate service in quality, nature and manner of performance and thus, it is deficiency in service on the part of the opposite parties.

9. Point No.(2):- In view of the discussion of facts and circumstances of this consumer case above, we are of the opinion that in the interests of justice, the complainant is entitled to get an appropriate amount i.e. Rs.1,15,000/- towards compensation and also costs for the complaint is Rs.1,500/- from the date of complaint i.e. 21.11.2008 till the date of realization. This point is answered accordingly.

10. Point No.(3):- In the result, the complaint of the complainant is partially allowed directing the opposite parties to pay a sum of Rs.1,15,000/- (one lakh and fifteen thousand only) with interest @ 9% per annum from the date of the complaint i.e. 21.11.2008 till the date of realization and also to pay Rs.1,500/- (one thousand and five hundred only) towards costs of the complaint to the complainant within six weeks from the date of receipt of copy of order.

B. Sudhakar, S/o Vijay Kumar, R/o CSP.9, A.P. Apartments, Rajendra Nagar, Vijayawada.

…… Complainant.
vs

ICICI, Lombard, General Insurance Company Ltd., Door No.39-01-82, 6th Floor, Anjaneya Jewellary, Labbipet,
Vijayawada – 10.


…. Opposite party.


ORDER


1. The averments of the complaint in brief are as follows:

That the complainant purchased Luxory Tourist Cab bearing No. AP 09 X 4198 on 18.07.2003 under hire purchase agreement with HDFC Bank Ltd., and that the said vehicle was insured with the opposite party. During the subsistence of the policy the vehicle met with an accident at Vuyyuru on 21.11.2007 and the same was intimated to the opposite party along with estimated repair expenses for the damages to the vehicle because of the accident through E-Mail, after receipt of the E-Mail the opposite party took objection that the car was purchased under private car package policy but registered it as luxury tourist cab but infact the same was intimated to the opposite party at the time of taking policy by forwarding registration copy yet, the opposite party paid a deaf year so, the complainant got issued notice through E-Mail but of no avail hence, the complaint.

2. The opposite party filed counter denying the allegations of the complaint but contended that this opposite party gave motor insurance cover note No. PE 4146594 to the vehicle Scorpio Turbo 2.06 engine No.BF34E38344 AND Chasis No.MAITA2BFC32E80536 and the policy given was as private car package after receiving the premium. The vehicle number was AP 09 X 4198 as per Tariff Advisory Committee rules and regulations, rates, advantages, terms and conditions for transaction of motor insurance business in India or in accordance with the provisions of Part II B of the Insurance Act., 1938 as such this opposite party following the same, the premium fixed is different between private car type and luxury tourist cab as such the complainant suppressed the material fact and obtained policy as such he is not entitled for the damages and the same was informed to the complainant on 30.11.2007, there is no any deficiency in service on the part of this opposite party.


The estimates given by the Garapati Autoventures on 27.11.2008 is false and it was a created one no police report was given, none examined to prove the accident, no spot survey yet, the complainant claimed huge amount to which he is not entitled. As per the certificate of registration after column No.26 which clearly indicate the transfer of ownership with effect from 08.05.2007 and where as the accident took place on 21.11.2007 and that the accident was occurred on 20.11.2007 so, the complainant has no any insurable interest over the vehicle as such he is not entitled for the claim and prayed to dismiss the complaint with exemplary costs.

3. On behalf of the complainant the complainant himself filed an affidavit and got marked Exs.A1 to A6. On behalf of the opposite party Sri J. Madan Mohan Reddy and Sri Y. Madhu Babu filed affidavits and got marked Exs.B1 to B5.

4. Heard both the counsel.

5. Now the point that arises for consideration in this complaint are:

I) Whether there was deficiency in service on the part of the opposite party?if so, the complainant is entitled for the claim?
II) To what relief the complainant is entitled?

6. Point No.1: As could be seen from the material on hand the opposite party contended that, that the complainant obtained policy by misrepresentation etc., vide Ex.B4 corresponding to Ex.A5 wherein it was written policy taken under private car package policy and the vehicle registered under luxury tourist cab, which plea of the opposite party is not tenable and so, no need to accept, why because, the complainant has submitted registration extract to the opposite party as per the version vide Ex.A1, further after considering all aspects only formal receipt given there after issued policy vide Ex.A3 corresponding to Ex.B2 and once policy was given or to say premium accepted for the vehicle bearing No. AP 09 X 4198, it is the duty of the opposite party to pay damages that to the insurance policy was for own damages and 3rd party liability ofcourse, the same was denied as such the objection taken by the opposite party as noted supra has no legs to stand.


The next aspect is no FIR etc., which is not acceptable since, the opposite party admitted the accident and also sent the surveyor for assessment of damages no doubt, but the only question is with regard to damages, the complainant claimed damages nearly Rs.1,00,000/- and he filed estimation and then filed bills vide Ex.A6 and in Ex.A6 bills there are repetition regarding several items so, no need to accept those bills in toto apart, form that there is force in the plea of the opposite party that the surveyor’s report has to be treated as primary document that to in view of the citations relied upon by the learned counsel for the opposite party viz Saraf Associated Vs Oriental Insurance Co. Ltd., and Another wherein it was held “It may also be mentioned that in case we go by the provisions of the Sub-sections (3) and (4) of Section 64UM of the Insurance Act, 1938, the Surveyor’s report cannot be challenged and only with the permission of Authority or earlier the Controller, the Second Surveyor could be appointed.


The relevant provisions are reproduced as under:” and Champalal Verma Vs Oriental Insurance Co. Ltd., wherein it was held “I am left in no doubt, that as per law, it is the report of the Surveyor which has to be given due weightage but since this case involves the quantum dispute, and as has been consistently held by this Commission Consumer Fora cannot go into the question of quantum dispute as it will involve a detailed investigation, which cannot be dealt in the summary proceedings expected from the Consumer Protection Act, 1986.” And Pradeed Kumar Sharma Vs National Insurance Company wherein it was held “Surveyor report is an important document and cannot be wished aside without any compelling evidence to the contrary.” So, in view of the above it is clear that surveyor’s report has to be taken into consideration, being the competent person to assess damages further, if any doubt arises the complainant can ask for 2nd surveyor.


That apart no contrary evidence so much so here in this case the complainant failed to disprove the surveyor’s report vide Ex.B5. As such this Forum is of the view that the claim of the complainant is excessive but however, the acts of the opposite party falls within the purview of deficiency in service, as it once accepted the premium and issued policy it cannot go back stating or giving some reasons in payment of damages so, the complainant is entitled for damages but not as claimed and accordingly this point is answered.

7. Point No.2: In the result, the complaint is allowed in part and the opposite party is hereby directed to pay an amount of Rs.37,306/- (Rupees thirty seven thousand three hundred and six) only to the complainant within one month from the date of receipt of this order and do pay Rs.2,000/- (Rupees two thousand) only towards costs. Rest of the claim if any claimed by the complainant is rejected.

Mr.Thipperudra Swamy,

aged about 38 years,

S/o Nagaiah Swamy,

Accountant, Big Bazaar,

Opp: TMA Pai HOspital,

Near Taluk Office,

Udupi Taluk Office,

Udupi Taluk and District,

Karnataka State. ………….. Complainant

Versus



1.ICICI Lombard General Insurance Ltd.,

(RMP’s Medlife Package),

II Floor, Maximus Complex,

Light House Hill Road,



2.TTK Healthcare Services Pvt. Ltd.,

II Floor, Anmol Palani,

G.N.Chetty Road,

T.Nagar, Chennai – 500017.



3. RMP Infotec Private Limited,

F1, First Floor, Apollo Dubai Plaza,

100, Mahalingapuram Main Road,

Chennai – 600034. ……… Opposite Parties





1. Complainant has filed this complaint against the Opposite Parties alleging Unfair Trade Practice and thereby committed deficiency in service and prayed for a direction to Opposite Parties to reimburse the medical expenses of Rs.15,150/- incurred by the Complainant with interest @12% per annum from the date of admission to hospital. Further direction to Opposite Parties to pay a sum of Rs.25,000/- as compensation towards the mental agony and harassment undergone by the Complainant. Rs.600/- towards the cost of lawyer’s regd. notice plus cost of the complaint, etc.

Contd……2

2. The case of the Complainant is that the Complainant is a holder of Cash less Health Card issued by the Opposite Parties vide policy No.4016/0002268 which is valid from 19.04.2008. The Complainant submits that he has admitted to KLS Hospital, ISR Road, Hospet, Bellary District on 06.12.2008 for DNS and HIT and Left Maxillary Sinusitis and he has been operated for the same on 07.12.2008.



3. The Complainant further submits that as per Cashless Health Card the Complainant is entitled to have the benefit of RMP Medlife Package. Accordingly KLS Hospital has complied with the requirement to claim the benefit under the RMP Medlife Package. The said claim of the Complainant has been rejected by Opposite Party No.2 with remarks “Possibility of long term pathology cannot be ruled out hence cashless not possible”.



4. The Complainant further submit that at the time of issuance of the said card the Opposite Parties have represented to the Complainant that any medical expenses incurred by the Complainant will be reimbursed. Honestly believing the representation of the Opposite Parties the Complainant has opted to have Cashless Health Card.



5. The Complainant further submits that as the mater stood thus the Opposite Parties have unilaterally rejected the claim of the Complainant. Therefore, the Complainant has got issued the lawyer’s registered notice dated 18.12.2008 calling upon the Opposite Party Nos.1 and 2 to consider the request of the Complainant for reimbursement of the medical expenses incurred by him within 15 days from the receipt of the said notice by the Opposite Parties. The said lawyer’s regd. notice has been served upon the Opposite Party Nos.1 and 2 and they have accepted the same without demur. Hence this complaint.



6. Notices of the complaint served on the Opposite Parties. Opposite Parties No.2 and 3 remained absent, hence placed exparte. Opposite Party No.1 appeared through its counsel and filed the version contending that the complaint is false, frivolous, vexatious and the same is not maintainable either in law or on merits.



7. Opposite Party No.1 further contended that the provisions of Section 12 of the Consumer Protection Act, 1986 is not at all applicable to the facts of the

Contd………3

case to the extent it relates to this Opposite Party. Complainant is either the consumer as against the Opposite Party nor there is any service much less the deficiency of service rendered by this Opposite Party. Hence, the case pleaded by the Complainant in his complaint as against this Opposite Party is out of the preview of Section 12 of the Consumer Protection Act, 1986. Hence, the complaint is liable to be dismissed on that score alone.



8. This Opposite Party while admitting the allegations contained in Para No.II(1), (2) and (3) of the complaint is not aware and does not admit that the claim of the Complainant was rejected by the Opposite Party No.2 with remarks “possibility of long term pathology cannot be ruled out hence cashless not possible”. The Complainant is put to strict proof of the said allegations.



9. This Opposite Party emphatically denies everyone of the allegations contained in Para II(4) of the Complaint. It is emphatically denied that at the time3 of issuance of the Health Card the Opposite Parties have represented to the Complainant that any Medical expenses incurred by the Complainant will be reimbursed or that honestly believing the alleged representation of the Opposite Parties the Complainant has opted to have “Cashless health card” as alleged in Para II(4) of the complaint or otherwise. The Complainant is put to strict proof of the said allegations.


In fact the said policy was issued subject to the terms and conditions, same may be read as part of the version. Since the disease was pre-existing one and the same is excluded during the first year of the operation of the Policy, the claim of the Complainant was rejected on that ground alone and not for any other reasons to the knowledge of the Complainant.



10. The Opposite Party admits in toto everyone of the allegations contained in Para II(5) of the complaint and further submit that the non-issuance of the reply to the Registered Notice dated 18.12.2008 was not for any other reasons but the same did not deserve any reply as the terms and conditions of the Policy was well known to the Complainant.



11. This Opposite Party emphatically denies everyone of the allegations contained in Para (6) and (7) of the complaint.

Contd……..4

12. This Opposite Party denies all other and further allegations not specifically traversed hereinabove in so far as they are against the case of this Opposite Party and prays to dismiss the complaint with cost as devoid of any merits in the ends of justice.



13. The Complainant has produced 8 documents which are marked as Exs.C-1 to Exs.C-8. Opposite Party No.1 has produced 1 document which is marked as Ex.R-1. Both the parties have filed affidavits, interrogatories and reply affidavits. We heard the complainant.



14. Now the points that arise for our consideration are:

1) Whether the Opposite Parties are justified in repudiating the claim of the Complainant

2) Whether there is deficiency in service on the part of the Opposite Parties?

3) Whether the Complainant is entitled for the relief claimed in the

complaint?

4) What Order?



Point No.1 & 2:

15. It is an admitted act that the Opposite Party has issued a cashless health card in favour of the Complainant i.e. ICICI Lombard Health Insurance bearing No.4106/0002268 valid from 19.04.2008. It si not in dispute that the Complainant admitted to KLS Hospital, ISR Road, Hospet, Bellary District on 6.12.2008 for DNS and HIT and Left Maxillary Sinusitis and he has been operated for the same on 7.12.2008.



16. The case of the Complainant is that as per Cashless Health Card he is entitled to have the benefits of RMP Medilife Package, after the operation the Complainant claimed the amount but the claim of the Complainant is rejected by the Opposite Party No.2 with the remarks “Possibility of long term pathology cannot be ruled out hence cashless not possible”.



17. Ex.C-1 is the photo copy of the Cashless Health Card, Ex.C-2 is the receipt for having paid Rs.6,990/- towards the package RMP Medilife activation scheme. Ex.C-3 is the Pre-Authorization Request Form sent through the Healthcare service (Pvt.) ltd., Ex.C-4 is the rejection letter issued by the Opposite Party No.2.

Contd…….5

18. Counsel for the Complainant argued that the rejection of the claim of the Complainant is illegal. At the time of introducing this scheme the Opposite Parties have issued only the Cashless Health Card in favour of the Complainant and explained only the benefit of the card to him. In fact they have not produced the terms and conditions of the health policy . The Complainant is kept in dark with regard to the terms and conditions now raised by the Opposite Party. Hence they have committed deficiency in service by rejecting the claim of the Complainant



19. The counsel for the Opposite Party argued that the details regarding the entire scheme with its terms and conditions have been properly explained to he Complainant and only after going to the terms and conditions after having accepting the same the Complainant has paid the premium of Rs.6,990/-, the policy bearing No. was issued in favour of the Complainant which is valid from 19.04.2008. The said fact has been clearly stated in II(1) para of the complaint that he has been issued with a cashless health card by the Opposite Party bearing Policy No. _________ valid from _________. Hence the question of believing the allegations of the Complainant that he has been issued only with the cashless health card and not the policy conditions does not arise and also it cannot be believed.



20. The counsel for the Opposite Party has produced Ex.R-1 which is the schedule of the policy conditions. The counsel for the Opposite Party further submitted that the Complainant has admitted to the KLS hospital on 6.12.2008 for the treatment of Left Maxillary Sinusitis. As per Policy conditions of schedule 3, Exclusions clause which reads as under:

“Exclusions:

The Company shall not be liable to make any payment under this policy in connection with or in respect of any expenses whatsoever incurred by any insured Person in connection with or in respect of :

(i) Such diseases, which were pre-existing at the time of proposing

the insurance.

(ii) Any disease other than those stated in Exclusion (iii) below, contracted by the Insured Person during the first 30 days from the commencement date of the policy. This exclusion shall not however, apply if in the opinion of the Panel of Medical Practitioners constituted by the company for the purpose, the insured person could not have known of the existence of the Disease or any symptoms or complaints thereof at the time of making the proposal for insurance to the company.

Contd…..6

(iii) The expenses on treatment of disease, or illness such as Catarat, Benign Prostatic Hypertrophy, Hysterectomy for Menorrhagisa or Fibromyoma, Hernia, Hydrocele, Congenital internal diseases, Fistula in anus, piles, Sinusitis and related disorders during the first year of operation of this policy. If these diseases, or illnesses are pre-existing at the time of proposal, they will not be covered during subsequent renewal of the policy.”



21. The Opposite Party No.2 argued that the Complainant obtained the policy with effect from 19.04.2008 and the Complainant was admitted for the treatment on 6.12.2008 well within a year from the date of policy. As per the policy conditions the Complainant is not entitled for the cashless treatment or for reimbursement of the policy. Therefore, the Complainant has intentionally not produced the copy of the policy before this Forum. Hence the version of the Complainant cannot be taken into consideration. The rejection of the claim of the Complainant is justified.



22. On going through the documents produced by the parties it is evident that Complainant has been issued with a policy of cashless health card facility. He has taken the treatment for sinusitis which is excluded during the first year as per the terms and conditions of the policy



23. The Complainant having paid the premium amount of Rs.6,990/- without knowing the terms and conditions of the policy cannot be believed. Complainant is a well educated person, no prudent person will invest such an amount without going to the terms and condition of the scheme of the policy.



24. Therefore, in our view, the Opposite Parties are right in repudiating the claim of the Complainant and there is no deficiency in service on the part of the Opposite Parties. Hence, we answer the point No.1 in the Affirmative and point No.2 in the Negative.



Point No.3 & 4:

25. In view of the Affirmative answer to point No.1 and Negative answer to point No.2, we hold that the Complainant is not entitled to claim the reliefs. Hence, we answer the point No.3 in the Negative.

Contd……7

26. In the result, we pass the following:

ORDER

The complaint is dismissed. In the circumstances, parties to bear their own costs.

Sri.Deepak Kumar B.K.

S/o Late Guruvappa,

Aged about 33 years,

Residing at D.No.23/5/382,

‘Sulakshna’ 1st Floor,

Behind Kamath Clinic,

Jeppu Market Road,

Mangalore-575 001. …….. COMPLAINANT



VERSUS



1. The Manager,

ICICI Lombard Insurance,

Maximus Complex,

L.H.H. Road,

Mangalore.



2. The Manager,

ICICI LOMBARD INSURANCE,

Prestige Corniche,

Richmond Road,

Bangalore-25. ……. OPPOSITE PARTIES



1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs.

The Complainant obtained insurance policy to his vehicle i.e. Zen Car bearing Registration No. KA-19-Z-2337 from the Opposite Party. The said policy was valid from 29.6.2007 to 28.6.2009 covering basic own damage and third party liability.

It is submitted that, in the month of January 2008 during the existence of the policy, the car met with an accident and damaged extensively thereafter the car was removed for repair to the garage and the same was intimated to the Opposite Party and submitted claim forms along with other relevant documents.

It is submitted that, the Opposite Party deputed one Mr.Naveen as surveyor to assess the loss and the above said surveyor assessed the loss and submitted his report for total damage of the car and estimated the cost of repair and spare parts at Rs.95,772/-. It is submitted that the Opposite Party instead of paying the above said amount informed the Complainant that he is eligible for only Rs.42,000/-. It is contended that the settlement offered by the Opposite Party for Rs.42,000/- is illegal and not acceptable which amounts to deficiency in service and hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to reimburse the amount of Rs.95,772/- along with interest at 18% per annum from the date of claim till the payment and Rs.50,000/- claimed as compensation for deficiency in service and cost of the proceeding.



2. Version notice issued to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version admitted the policy but it is contended that the insurance policy is issued subject to IMT Endorsements which are part of terms of the policy. The damages has been assessed by the surveyor Mr.Naveen and as according to him the approximate liability was assessed at Rs.65,666.29 as per report dated 1.3.2008 and again this Opposite Party got the assessment done through Sri Rajashekar Vastrad, Surveyor who assessed the loss Rs.42,500/-. The same was communicated to the Complainant but the Complainant is not ready to accept the amount as per final survey i.e. Rs.42,500/- and contended that there is no deficiency of service and prayed for dismissal of the complaint.



3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

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



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



(i) What order?



4. In support of the complaint Sri.Deepak Kumar.B.K. (CW1) filed affidavit reiterating what has been stated in the complaint and one Sri.Vinay Shetty, Partner Auto trade workshop, Mangalore–(CW-2) led evidence and CW-1 has answered the interrogatories served on them. Ex C1 and C2 were marked for the Complainant as listed in the annexure. One Sri. Naveen Kumar P.V.T., Authorized Insurance Surveyor (RW-1) and one Sri.Rajashekar Vastrad, Manager of Customer Service of Opposite Parties filed counter affidavit and answered the interrogatories served on him. Ex R1 to R3 were marked for the Opposite Parties as listed in the annexure. Both the parties are presented written notes of arguments.

We have heard arguments, perused the pleadings, citations, documents and evidence placed on record. We answer the points are as follows:

Point No.(i): Affirmative

Point No.(ii) & (iii): As per the final order.
REASONS

5. POINTS NO. (i) to (iii):

It is admitted fact that, the Complainant obtained a insurance policy from the Opposite Party bearing Policy No.3001/50033074/01/000, the same was valid from 29.6.2007 to 28.6.2008 covering basic own damage and third party liability. It is admitted that the above said vehicle of the Complainant met with an accident on 9.1.2008 and suffered damages. It is also admitted that the Complainant submitted the claim form on 30.1.2008, the Opposite Party deputed one surveyor Mr.Naveen to assess the damages and the surveyor assessed the damages and submitted the report dated 1.3.2008.

It is contended by the Complainant that the surveyor Mr.Naveen submitted his report for total damage of the car and estimated the cost of the repair and spare part at Rs.95,772/- but the Opposite Party appointed a second surveyor and informed the Complainant he is eligible only Rs.42,500/- which is not acceptable and contended that the appointment of 2nd surveyor is not justified.

Now the main question that arises for consideration in the instant case is as to whether the amount of compensation is payable as per the 1st surveyor’s report or it deserves to be paid as per the 2nd surveyor’s report as contended by the Opposite Party.

As noticed earlier there is no dispute that the vehicle was insured with the Opposite Party and the policy has coverage and it is also not disputed that the vehicle was met with an accident. Initially surveyor Naveen Kumar appointed by the Opposite Party as surveyor inspected the spot and made detailed assessment, the net loss assessed at Rs.65,666.29 and submitted the report dated:1.3.2008 (as per Ex.R1).

We have gone through the 1st survey report, a perusal of the survey report will go to show that in this case Mr.Naveen was appointed as a surveyor who had done spot survey and has given the extent of damages. Thereafter the another surveyor Rajashekar Vastrad was appointed as surveyor and reported the loss caused to the vehicle and copy of the detailed report is not on record only the stereo typed assessment sheet is available on record. The 1st survey report i.e. the detailed report is placed on record which shows that the surveyor visited the place where the vehicle was got repaired and assessed the loss.


When the 1st surveyor had already given the report and assessed the damages there is no question of reassessment of the same damages by the another surveyor when there is no malafide intention on the part of the first surveyor while issuing the report. There is no reason has been given as why the previous report was to be rejected and Rajashekar Vastrad was asked to do reassessment. If reassessment of any particular item was necessary, then it could have been mentioned and the surveyor could have cleared the confusion which existed in the previous report. As a matter of fact if there was some doubt or confusion then it should have been referred back to the same surveyor who had reported about the loss.


The appointment of successive surveyor is to be deprecated because the insurance company wants that it should not pay the due amount but tries to manipulate the amount which it wants to pay by appointing surveyor after surveyor unless a report which suits it is submitted. The report of the Rajashekar Vastrad was liked by the insurance company because the amount calculated by the Rajashekar is less or otherwise they should have been appointed another surveyor to suit them. This question cropped up before the Jaipur State Commission who also held that the insurance company cannot appoint one surveyor after the other. This decision was rendered in the case of Veerendra Chowdary Vs United Insurance Company, 1998 Vol-III CPJ 154.

As a matter of fact it is the primary duty of the insurance company to repair the vehicle. If the insurance company does not get the vehicle repaired then only the claimant gets the vehicle repaired.

In the present case, the first surveyor report will go to show that the vehicle was damaged to the extent indicated by him in his report and he had made a item wise remarks and rejected certain spare parts of the vehicle and rightly considered the estimation issued by the Complainant. We do not find any discrepancies in his report. Hence the survey report of the 1st surveyor holds good in the present case. The Opposite Party in order to reduce the claim of the Complainant appointed one after other surveyor and not considered the 1st survey report which amounts to deficiency in service.

Taking into consideration of the above all views, we are of the considered opinion that the Opposite Party company is hereby directed to pay Rs.65,666/- to the Complainant towards the damages of the vehicle and further Rs.15,000/- assessed as compensation for the mental agony and the harassment caused by the Opposite Parties and also Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.



6. In the result, we pass the following:


ORDER

The complaint is allowed. The Opposite Parties are jointly and severally liable to pay Rs.65,666/- to the Complainant and further Rs.15,000/- as compensation and Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.