Shri Jeet Ram S/o Sh. Sant Ram,

R/o Vill. Bhal, P.O. Bayala,

Tehsil Sunder Nagar, Distt. Mandi, H.P.

C/o Friends Polutry Farms, Sangla Kinnaur H.P.



… Complainant.

Versus





The Regional Manager,

ICICI Lombard General,

Insurance Company Ltd, Mandi,

Distt. Mandi.



…Opposite Party










O R D E R:







This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that, he is registered owner of vehicle bearing registration No.HP-25A-0425, which was insured by him, with the OP-Company, for a period of one year, commencing from 07.11.2006 to 06.11.2007. He further proceeded to aver that, on, 19.04.2007, the aforesaid vehicle met with an accident, and suffered extensive loss. As usual, the matter was brought to the notice of the OP-Company, as also, to the notice of concerned police.


He further avers that he spent a sum of Rs. 2,50,000/- on its repairs, in order to make it road worthy. Thereafter, insurance claim came to be lodged, by him, with the OP-Company, but, they instead of settling it dilly-dallied its, settlement. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its reply to the complaint, besides raising preliminary objections, contended that the loss was assessed by the surveyor to the tune of Rs.1,52,976/-, which was payable to the complainant subject to the terms and conditions of the insurance policy. They further contend that the claim could not be paid to the insured owing to the reasons that the name of the insured is different on the policy certificate, as also, in the registration certificate. Hence, it is denied, that, there was any deficiency in service on their part.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

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

5. The vehicle met with an accident, on 19.04.2007 and suffered extensive loss. The accident, as, had so occurred, had occurred during the currency of the insurance policy purchased by the complainant from the OP-Company. The Rapat No.7, Annexure C-4, in relation to the accident came to be lodged with the concerned Police Station. The OP-Company resists the claim of the complainant on the score that, since, their is variance of the name of the insured in the policy certificate, as also, in the registration certificate, hence, it is contended, that, the non-settlement of the claim of the complainant is tenable.

6. The said contention, as raised by the OP-Company, in its reply, has come to be repulsed by the complainant, by adduction of cogent and satisfactory evidence, inasmuch, as, the existence of registration certificate of the vehicle Annexure C-1, as also, cover note Annexure C-3, divulges that the name of the owner in the aforesaid documents, is, reflected as ‘Jeet Ram’ hence, it cannot be said by any stretch of imagination, that, there is any variance regarding the name of the owner of the vehicle, as such, their stand in not settling the claim of the complainant was tenable.


Therefore, the non-settlement of the claim of the complainant on the aforesaid ground cannot be construed to be a valid and justifiable and the same amounts to deficiency in service and unfair trade practice.

7. Now comes the point of compensation, to which the complainant is entitled from the OP-Company, in terms of indemnification. The complainant, in his complaint, has asserted that he spent a sum of Rs.2,50,000/- on the repairs of the vehicle, and, has also appended cash memos Annexure C-5 in support of his assertion. On the other hand, the OP-Company, has placed reliance on Annexure A-1, which is survey report dated 22.07.2007 prepared by Surveyor & Loss Assessor, whereby the loss has been assessed at Rs.1,52,976/-.


From the perusal of the survey report aforesaid, it is divulged that the Surveyor and Loss Assessor while discarding certain estimated amounts, as purportedly expendable by the complainant on the repairs of the vehicle, while discarding the same, has, not assigned any reasons, nor has observed, in it, that those parts for which an estimate was drawn were never fitted in the damaged vehicle, hence, his report cannot be taken into consideration while assessing the claim of the complainant.

8. Resultantly, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of Rs.2,50,000/- along with interest at the rate of 9% per annum, from the date of filing of the complaint, i.e. 14.11.2007, till actual payment is made. In addition to this, the OP-Company shall also pay litigation cost of Rs.2500/-. This order shall be complied with, by the OP-Company within a period of forty five days, after the date of receipt of copy of this order.

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

Shri Shyam Sukh Sawant S/O Late Sh. Ram Krishan sawant,

R/O Village Chagoli, P.O. Chalner, Tehsil Kotkhai, District Shimla, H.P.





… Complainant.

Versus





1. ICICI Lombard, Motor Insurance, Hotel Moon International, Chotta Shimla, Shimla-through its Branch Manager.



2. ICICI Lombard, Motor Insurance, Zenith House, Keshvarao Khade Marg, Mahalaxmi, Mumbai-400034, through its General Manager/ Divisional Manager.



…Opposite Parties










O R D E R:

This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. As per the averments made in the complaint, the complainant had purchased one truck to earn his livelihood, which was allotted with temporary registration No. HP. 24-A-9427 and was insured with OPs vide certificate cum policy No. 3003/52266681/00/000 for the period w.e.f. 03.08.2007 to 02.08.2008. It is further pleaded that the permanent Registration Number was not allotted to the aforesaid truck as the same met with accident within 5 days of its purchase.


As per the case of complainant the said truck was financed from H.P. State Co-operative Bank Ltd Kotkhai. It was further averred that the said truck met with an accident on 07.08.2007 while the same was on its way from Shimla to Kotkhai at place known as Kokunala and was totally damaged. FIR was lodged in this regard which has been placed on record. It is further pleaded that OPs was intimated with respect to accident who in response deputed Sh. Dinesh Gupta as surveyor to asses the loss, who after survey recommended the accidental truck to be a case of total loss. It has further been pleaded that the complainant also got prepared the estimate of cost of repair of aforesaid truck from M/s Gautam Automobiles who assessed the cost of repair between Rs. 9,00,000/-to Rs. 9,50,000/-.


It is further pleaded that the after accident the complainant has deputed one chowkidar to look after the garbage of the truck to whom he is paying Rs. 2000/- per month. After doing codal formalities all the relevant documents were submitted to the OPs for settlement of claim but nothing has been done on the part of OPs despite issuance of notice, hence present complaint.

2. Notice of complaint was issued to the OPs, who was duly represented through counsel on 17.06.2008 and case was listed for reply for 19.08.2008, but reply was not ready and case was further adjourned for 13.10.2008 and on 13.10.2008 the OPs were proceeded against exparte. However, on 01.08.2009, the OPs moved an application for setting aside the exparte order which was dismissed in default on 03.09.2009.

3. We have heard the learned counsel for the complainant and pursued the record.

4. The complainant has placed on record copy of sale certificate

Annexure C-1; showing that the complainant has purchased the truck in question on 03.08.2007, Annexure C-2, is the certificate cum policy schedule suggesting of the fact that the truck in question was insured with OPs at the relevant time. From the perusal of Annexure C-3, it is clear that the aforesaid truck met with accident on 07.08.2007 at Kokunala. Annexure C-4, is the estimate of cost of repair of truck.


The complainant has also produce driving licence of driver which is Annexure C-5. From the perusal of Annexure C-5, it is clear that the driver was competent to drive Heavy Goods Vehicle vide endorsement dated 16.06.2003 and was valid upto 19.02.09. Hence the driver having effective driving licence to drive the vehicle in question as the truck in question is Medium Transport Vehicle as is clear from the perusal of Annexure C-1, sale certificate.


The complainant has also placed on record legal notice dated 26.02.2008, Annexure C-6, which was issued to OPs, Annexure C-7 and C-8 are the acknowledgment and receipt suggestive of the fact that the legal notice dated 26.02.2008 has been issued and duly served on the OPs. There is nothing contrary on the record that the OPs have replied the said notice or not.

5. As noticed earlier that the OPs have not placed any documents on record contrary to submission and averments made by the complainant, rather the OPs chose not to contest the complaint and was proceeded against exparte.

6. From the perusal of pleadings and entire documents placed on record by the complainant we are satisfied that the complainant is entitled for the full value/cost of the truck without any depreciation on the same met with accident with in this five days of its purchase. As per settled proposition of law no depreciation is allowed to be deducted from insured sum if the same vehicle met with accident within six months of its purchase or insurance.

7. The complainant has also claimed the monthly charges of Rs. 2000/- paid to the chowkidar, by him. We are not inclined to grant such relief to the complainant as no evidence has been produced to this effect by the complainant.

8. For the foregoing reasons, the complaint is partly allowed and the complainant is held entitled for Rs.7,50,216/- being the insured sum along with interest @ 9% from the date of filling complaint, i.e. 24.03.2008 till the whole amount is paid. The litigation cost is quantified at Rs.2500/- payable by the OPs to the complainant.


The OPs are directed to comply with this order, within a period of forty five days after the receipt of copy of this order. The learned counsel for the complainant undertook to collect the certified copy of this order from the office, free of cost, as per rules, whereas the copy of this order shall be sent to the OPs through UPC for compliance forthwith. The file after due completion, be consigned to record room.

Daljinder Singh son of Sh. Lal Singh, resident of Street No.3, Sant Nagar, near Gaushala Road, Mandi Gobindgarh, Distt. Fatehgarh Sahib.

(Complainant)

Vs.



1. ICICI Lombard General Insurance Company Ltd. Space No.1, 5th Floor, Surya Towers, 108, The Mall, Ludhiana through its Branch Manager.



2. ICICI Lombard General Insurance Company Ltd. Regd. Office ICICI Bank Towers, Bandra Kurla Complex, Mumbai 40051 through its General Manager.

(Opposite parties)



COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.


O R D E R

T.N. VAIDYA, PRESIDENT:

1. Claim of insured vehicle of the complainant bearing no. PB-23-F-9202, insured vide cover note number 51497340 dated 29.3.2007, valid from 29.3.2007 to 28.3.2008 was refuted by the opposite party on the ground that the vehicle registered as private vehicle was being used for commercial purpose. Hence, this complaint under section 12 of the Consumer Protection Act, 1986, challenging legality of repudiation letter of the opposite party.

2. Case of the complainant is that during currency of the policy, the vehicle met with an accident on 13.10.2007, when it was being driven by his son Sh.Jagjit Singh after attending cremation of their relation Sh. Joginder Singh . Intimation of the accident was given to the opposite parties and claim was lodged, as had spent Rs. 76,100/- on its repair.

3. Opposite parties contested the complaint on ground that the vehicle was registered as private vehicle but was being used for commercial purpose, in violation of the Insurance Policy. On claim being lodged by the complainant, same was got investigated through an investigator. The investigator recorded the statement of the complainant who had admitted plying the vehicle in question as a taxi for commercial purpose and that out of such earning from the vehicle EMIs were being paid. Also claimed that surveyor of the opposite parties assessed the loss to the vehicle for Rs. 35,106/- only. Sh. Jagjit Singh son of the complainant had been using the vehicle as a taxi and operating at taxi stand of Mandi Gobindgarh in the name of Jaggi Travels. So, claim has rightly been repudiated.

4. Both the parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

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

6. As obtaining insurance for his vehicle by the complainant is not in dispute, so we would not burden the record by referring such evidence. The claim stand repudiated by the opposite party vide letter Ex.C.14 dated 16.2.2008 on the ground that the vehicle was being used for commercial purpose in violation of the policy. Such defence of the opposite party was based upon investigation conducted by Sh. A.P.Singh Investigator, who submitted report Ex.R.1 along with statement Ex.R.2 of the complainant and visiting card Ex.R.3 of M/s Jaggi Travels.

7. We shall straight way refer ourselves to the point in controversy, whether the vehicle in question registered as private vehicle was being used for commercial purpose? In order to prove report Ex.R.1 of investigator Sh. A.P. Singh, his affidavit RW1/A has been relied. As per affidavit of the investigator, the vehicle was used for commercial purpose as a taxi from taxi stand at Mandi Gobindgarh under the name and style of Jaggi Travels. This aspect that the vehicle was being used as a taxi was admitted by the complainant in his statement Ex.R.2 given to the investigator. Sh. Daljinder Singh complainant stated to the investigator that his son Sh. Jagjit Singh is using the vehicle on hire basis. On 13.10.2007, he was driving the vehicle towards Payal and on the way, when the truck came from opposite side at a very high speed, he turned the vehicle hurriedly, resulting in striking with a tree, damaging the same. But no body received injuries, so, the matter was not reported to the police. He also gave statement that his son was using the vehicle on hire basis and are paying the instalments from that income. Ex.R.2 is copy of statement of the complainant, which he has signed. Ex.R.3 is visiting card of Travel. As per complainant, his son Sh.Jagjit Singh was driving the vehicle at the time of accident and was operating the taxi stand in the name and style of M/s Jaggi Travels, which he has printed in his visiting card Ex.R.3.

8. No doubt, story appended is that on 12.10.2007, complainant along with his family members went to house of Sh. Joginder Singh a close retaliation to console his death and thereafter on 13.10.2007 on return journey, the accident took place. The vehicle at that time was being driven by Sh. Jagjit Singh son of the complainant. Death certificate Ex.C.10 of Sh. Joginder Singh is also placed on the record. but such plea on the part of the complainant appears to be after thought. As complainant has stated nothing in his affidavit Ex.CW1/A about his statement Ex.R2 given by him to investigator of the opposite party. He has not denied giving of such statement, nor stated a single word about such statement. So, appears that an after thought plea is made that family members of the complainant were traveling in the vehicle, when it met with an accident. Rather, his statement given to the investigator clearly points that the vehicle was plied as a taxi for commercial purpose and out of its income loan instalments were being paid.

9. Hence, this plea to raise claim regarding damage to the vehicle appears to be an after thought by claiming that family members of the complainant were traveling in the vehicle at the time of accident. Rather stand established that the vehicle was being plied for commercial purpose, though, it was registered as a private vehicle.

10. Where the vehicle was insured for personal use but being used as a taxi, insurance claim was held not payable by decisions reported as National Insurance Company Ld. Vs. Meena Aggarwal, 2009 (1) RCR (Civil) 877(Hon’ble Supreme Court); III (2007) CPJ 160 (Hon’ble National Commission) titled as Jagdeesh Singh Vs. United India Insurance Co. Ltd. and IV 92008) CPJ 240 (Hon’ble National Commission) titled as Joginder Singh Vs. oriental Insurance Company Ltd. & Ors.

11. So, in these circumstances appears that opposite party was justified in repudiating the claim. Hence, finding no merit in the complaint, the same is dismissed.

Shakti Sawhney aged about 57 years wife of Sh. Jagmohan Singh , resident of 140, Tagore Nagar-A, Civil Lines, Ludhiana.

(Complainant)

Vs.



1. ICICI Lombard General Insurance Company Limited, Zenith House, Keshav Rao Khadya Marg, Opposite Race Course, Mahalaxmi, Mumbai through its Director/concerned Manager.



2. T.T. K. Health Care Services Pvt. Ltd. 7, Jeewan Beema Nagar, Main Road, HAL 3rd Floor, Banglore, through its Managing Director.

(Opposite parties)


O R D E R

T.N. VAIDYA, PRESIDENT:

1. Complainant obtained health care policy of Rs. 3,00,000/- bearing no. 4034/EPP/03280377/00/000 for the period 19.2.2008 to 18.2.2009, issued on 20.2.2008 by opposite party no.1. It was a cashless treatment policy in network hospitals identified by the opposite party. On receipt of policy along with cashless health card bearing no. IHPN-03429867/01, complainant noticed that her age was wrongly mentioned therein. This mistake was pointed to the opposite party through their representatives but without response. Before correction of the mistake, complainant fell ill and was admitted on 18.3.2008 in DMC & Hospital, Ludhiana due to abdomen pain and vomiting. She was diagnosed to have Pancreatitis. Information qua ailment was given to opposite party no.2. But DMC & H, Ludhiana received letter dated 21.3.2008 from the opposite party denying authorization of treatment. They wrongly claimed in the communication that treatment of stone in bleary system is not payable within two years of inception of the policy as per exclusion clause 3.3 of the policy. Regarding this, she was never communicated this exclusion clause and there was no pre-existing disease. Non payment of the claim and rejecting the same is claimed amounting to deficiency in service. Hence, claimed an amount of Rs. 72,000/- spent on treatment along with Rs.25000/- as compensation by filing the present complaint under section 12 of the Consumer Protection Act, 1986.

2. Opposite parties admitted obtaining of medicalim policy by the complainant and denying authorization for her treatment in DMC & H, Ludhiana. They justified denial on the ground that disease had occurred within two years of inception of the policy, so, complainant was not entitled for cashless treatment under terms and conditions of the policy. The complaint is not maintainable and there is no deficiency in service on their part.

3. Both the parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

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

5. It is argued on behalf of the complainant that while supplying copy of the policy, its terms and conditions were never made available to the complainant nor they supplied copy of the terms and conditions of the policy. Consequently, she is not bound by the same. In support of the contention that where terms and conditions of the policy were never delivered to the insured, would not be bound by such conditions, referred decisions reported as IV (2004) CPJ 494 titled as National Insurance Company Limited Vs. Neelam Rana (decided by Hon’ble union Territory Consumer Disputes Redressal Commission, Chandigarh and III (1996) CPJ 8 (SC) United India Insurance Company Ltd. Vs. M.K.J. Corporation (Hon’ble Supreme Court of India).

6. Aforesaid authorities would only come to the rescue to the case of the complainant, if the complainant able to prove that was not supplied terms and conditions of the policy.

7. Hence, at the outset, we would refer whether terms and conditions of the policy were supplied to the insured or not. Ex.C.1 is the certificate of insurance policy issued by the opposite party to the complainant. It is mentioned in this certificate that this schedule and attached policy shall be read together as one contract.

8. Now argued on behalf of the complainant that along with certificate of policy, terms and conditions of the policy were not supplied. This contention runs contra to the documents itself. Neither after receipt of certificate of policy Ex.C.1 complainant ever objected or brought to notice of opposite party that she had not received terms and conditions of the policy. Therefore, we have to take it proved that along with certificate, policy was also sent by the opposite party to the complainant.

9. However, we would not be fair to the complainant if fails to mention his hypothetical arguments. He says that Ex.C.1 consisting of three pages was sent under courier by the opposite party vide courier receipt Ex.Rx weighing as 0.85gms. Policy Ex. R11 as filed by the opposite party consists of two pages and certificate with policy Ex.R.11 would have been of 5 pages and it would weigh more than 85gms. He tried to draw such inference from legal notice Ex.C33 consisting of three pages sent by him to opposite party under postal receipt Ex.A34 and 35. Envelop of that notice had weighed 125gms. as mentioned in the receipt. He says that if three pages of notice Ex.33 weighed upto 135gms. would mean that 5 copies of certificate Ex.C.1 and also Ex. R8 would have certainly weiged more than 125gms. Implies that opposite party had not sent terms and conditions of the policy along with certificate of insurance. But by such comparison of hypothetical arguments, it can not be assumed that no terms and conditions of the policy were made available by the opposite party to the complainant. We are taking such view as in insurance certificate Ex.C1, there is clear mention under the head “Important note” that schedule and attached policy would be read together. This means along with certificate, the policy was attached and complainant had withheld that. Had terms and conditions of the policy ` not made available, she would have brought such fact to notice of the opposite party. But her failure to do so signifies that had actually been made available terms and conditions of the policy.

10. In view of these aspects, there is no force in version of the complainant that terms and conditions of the policy were never supplied to her.

11. Condition no.3.3 of the policy Ex.R11 clearly mention that under exclusion clause of the policy, company shall not be liable to make any payment for any claim arising out of ailment and exclude payment of any medical charges during first two consecutive years for ailments such as stones in urinary and biliary system etc. As per discharge summary Ex.R.1 complainant got admitted herself on 27.3.2008 in DMC & Hospital, Ludhiana and discharged on 29.3.2008. She was operated for Laparoscopic cholecystectomy. Whereas, insurance policy had commenced on 19.2.2008. it means, within a month of purchasing the policy got treatment in the hospital for the stones in bladder. The treatment she took for ailment was within first two years of commencing of the policy. Therefore, under the contract of insurance, opposite party was exempted to provide free medical treatment to the complainant. Therefore, by rejecting the claim, they would not be guilty of any misconduct.

12. Hon’ble Punjab State Consumer Disputes Redressal Commission, in case reported II (2007) CPJ 295 , Tarun Bansal & Anr. Vs. Reliance General Insurance Company Ltd. & ors. has held that where the claim is lodged within first year of operation of the policy, reimbursement for treatment of such disease would not be enforceable.

13. Where the medicalim policy exempts Insurance Company within certain period of inception of the policy from making payment, repudiation done by them has been upheld. Reliance placed on a case Mrs. K. Nagarathanam Vs. Divisional Manager, United India Insurance Co. Ltd. & Arn. IV (2004) CPJ 114 (Hon’ble Tamil Nadu State Consumer Disputes Redressal Commission, Chennai) and II (2003) CPJ 331, New India Assurance Company Ltd. Dr. Girish Chandra Palival (Hon’ble Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow.

14. In the instant case, we feel that opposite party was justified in repudiating the claim under the policy as ailment had occurred within two years of commencement of the insurance policy and there is no deficiency in service on the part of opposite party in rejecting the claim. Hence, finding no merit, the complaint is dismissed.

Appeal No. 266 of 2009


1. ICICI Lombard General Insurance Company Limited, Quiet Office No. 10, Sector 40-B, Chandigarh through its Manager.



2. ICICI Bank Limited, SCO No. 9-10-11, Sector 9-D, Chandigarh through its Manager and also at Tulsiwadi, PO Mumbai.

..…Appellants.
Versus

Guru Prasad, r/o H.No.75/3, Subhash Nagar, Manimajra, Chandigarh.



..…Respondent.



BEFORE: MAJ. GEN. S. P. KAPOOR (RETD.), PRESIDING MEMBER.

MRS. NEENA SANDHU, MEMBER.



PRESENT: Sh. Sandeep Suri, Advocate for the appellants.

Sh.Gaurav Bhardwaj, Advocate for respondent.



MAJ. GEN. S. P. KAPOOR (RETD.), PRESIDING MEMBER.

1. This is an appeal against order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 26.2.2009 passed in complaint case No. 898 of 2008 : Guru Parsad Vs. Manager, ICICI Lombard General Insurance Company Limited and another.

2. In short, the case of the complainant is that the complainant availed a loan facility from OP No.2 for a sum of Rs.70,000/- in March, 2007 and he was unilaterally issued one credit card No. 4477474275700006 without any consent of the complainant. It is alleged by the complainant that his wife received a call from OP No.2 wherein they sought information regarding the family of the complainant such as age, name etc. and thereafter issued a Health Insurance Policy and Cashless Health Card for complainant and his family and for his brothers, inspite of the fact that he never filled up proposal form or gave any such request to the OPs. The complainant, therefore, immediately contacted OP No.2 on phone on 19.4.2007 and requested for the cancellation of the policy. It is alleged by the complainant that in the statement of credit card for the month of September amount had been shown against the insurance premium whereas the insurance had been got cancelled by the complainant immediately after its issue and even the credit card was also cancelled vide letter dated 13.10.2007 but inspite of this, he received a statement for the month of November wherein Rs.10,124/- was demanded from him and the OPs were levying interest illegally. The complainant, therefore, sent a legal notice but the same was not replied to and hence he filed the complaint.

3. Version of the OP No.1 is that the complainant is a credit card holder and had opted for the insurance policies and confirmatory calls were also made to him. It has been reiterated by the OP that the health policies were issued as per the instructions of the complainant himself.

4. OPs No.2 and 3 submitted that the policy was required to be cancelled by OP No.1 in not by OPs No.2 and 3 and when the cancellation was intimated necessary reversal entries were made in the credit card account of the complainant.

5. The learned District Forum in the impugned order has recorded in the impugned order that the recorded conversation was played before the District Forum but the complainant denied that it was his voice. The learned District Forum has also observed that the so called call made to the wife of the complainant was also a unsolicited call and the OPs should not have made such called despite repeated censures by the courts and, therefore, in the view of the learned District Forum, this was a unfair trade practice adopted by the OPs who are issuing credit card and health insurance policy at the unwilling customers even when the same are not needed by them and are extracting money from them on this pretext. After perusal of the account statements annexure C-8, C-15, C-16 and C-17, the learned District Forum has observed that OPs have charged a sum of Rs.600/- as late payment fee but they have not been able to produce any document or agreement between the parties which suggests that such a levy can be put as late payment fee. In the view of the learned District Forum mere reversal of the entries did not absolve the OPs from their liability to pay compensation to the complainant for making unsolicited calls for issuing credit card which was never wanted by the complainant and for issuing health insurance policy which he never asked for. Thus allowing the complaint, the OPs were directed to pay the complainant a sum of Rs.50,000/- as compensation for causing him harassment and adopting unfair trade practice along with costs of litigation quantified at Rs.5,000/- within a period of 30 days from the receipt of copy of the order failing which they would be liable to pay interest @ 12% p.a. since the filing of the complaint i.e. 6.8.2008 till payment. It has also been clarified that the liability of OP No.1 would be to the extent of 50% of the above amount and the remaining 50% would be paid by OPs No.2 and 3 jointly and severally. The OPs were also directed to reverse the entries in question if not already done.

6. Aggrieved by the said order, the OPs had filed this appeal having been taken on board. Notices were sent to the respondents. Sh.Sandeep Suri, Advocate has appeared on behalf of appellants wherein Sh.Gaurav Bhardwaj, Advocate appeared on behalf of complainant.

7. Sh.Sandeep Suri, Advocate for the appellants submitted that the call was never made to the wife of the complainant but the same was made to the complainant Sh.Guru Parsad and the CD of the conversation was filed along with the written reply but there is no contravention of the same given by the complainant. He also submitted that all charges already stood reversed. The learned counsel submitted that the appeal is primarily against the issuance of directions with regard to payment of compensation of Rs.50,000/-. He reiterated that the insurance policy had been issued after telephonic conversation with the complainant Sh.Guru Parsad who had agreed to take the insurance policy and, therefore, there was no unfair trade practice adopted by the OPs and therefore the learned District Forum had fallen in error in passing the impugned order.

8. Sh.Gaurav Bhardwaj, Advocate for the complainant on the other hand submitted that it was the wife of the complainant who had initially received a call and had been asked about certain details of the family. He vehemently submitted that the voice recorded in the CD was not that of Sh.Guru Parsad and he pleaded that the policy was given to the complainant against his wishes and without his consent and therefore he had been unduly harassed and as such the impugned order was just, fair and legal.

9. We have gone through the evidence on record and have heard the learned counsel for the parties.

10. The main allegation of the complainant is that a credit card and some insurance policies had been forced upon him without his consent and approval whereas the contention of the OPs is that the complainant had telephonically agreed to take the insurance policy. Admittedly other than the alleged CD recording a conversation between the OPs and the complainant there is no other evidence on record to prove that the complainant ever asked the OPs to give him the insurance policy or the credit card. There is also no evidence on record to prove that the voice recorded in the CD is that of the complainant and as such this CD cannot be taken as cogent evidence of an admissible conversation having taken place between the OPs and the complainant. It has been admitted by the OPs that they made a call to the complainant Sh.Guru Parsad obviously and admittedly such a call was an unsolicited call and therefore the learned District Forum has correctly recorded that this practice followed by the OPs in giving unsolicited calls needs to be curbed. From the evidence on record and the analysis of the complaint as done by the learned District Forum it is quite apparent that the complainant has been harassed and put to mental agony by the OPs for no fault of his and therefore we find no infirmity in the impugned order which is to compensate the complainant for such unwarranted harassment and unfair trade practice adopted by the OPs.

11. In view of the foregoing discussion, the appeal is dismissed as it lacks substance and the impugned order is upheld.

12. Copies of this order be sent to the parties free of charge.

Pronounced.

25th November, 2009.

Appeal No.1965 of 2008

1. ICICI Lombard General Insurance Company Limited, SCO No.174-175, 1st Floor, Sector 9-C, Chandigarh through its Manager, now shifted to SCO No. 214, 2nd Floor, Sector 14, Panchkula.



2. ICICI Lombard General Insurance Limited Interface 11, 4th Floor, Malad (w) Mumbai – 400064, through its Manager.

..…Appellants.
Versus

1. Thandi Ram r/o H.No.320, VPO Darua, UT, Chandigarh.



2. ICICI Bank Limited, SCO No. 9-10-11, Sector 9-D, Chandigarh through its Manager.

..…Respondents.



BEFORE: MAJ. GEN. S. P. KAPOOR (RETD.), PRESIDING MEMBER.

MRS. NEENA SANDHU, MEMBER.



PRESENT: Sh. Sandeep Suri, Advocate for the appellants.

Sh.Gaurav Bhardwaj, Advocate for respondent No.1.

Respondent No.2 already exparte.



MAJ. GEN. S. P. KAPOOR (RETD.), PRESIDING MEMBER.

1. This is an appeal against order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 18.9.2008 passed in complaint case No. 326 of 2008 : Thandi Ram Vs. ICICI Bank Limited and another.

2. Precisely stated the case put forward by the complainant is that he is having an account No. 001301501421 with OP No.1 and was also having a credit card issued by it. On receiving his statement of account, he came to know that OP No.1 was auto debiting a premium for an insurance cover of his wife i.e. Rs.1773/- provided by OPs No.2 and 3, whereas no such insurance cover had ever been sought by the wife of the complainant. On approaching the OPs No.1 and 2 the matter was never clarified and they continued to debit the premium from his account. The complainant thereafter on the advise of OP No.1 got the insurance cancelled. It is further the case of the complainant is that in the account statement dated 18.8.2007 for the months of July and August, he found that a sum of Rs.6188/- had been debited for the insurance. He therefore sent a legal notice to the OPs dated 22.11.2007 but to no avail and hence the complaint.

3. The case of OP No.1 is that the account of Rs.1773/- had been charged to the complainant not towards any insurance but it was towards previous balance for the preceding amount on account of usage of the card.

4. The version of OPs No.2 and 3, however, is that the policy was offered to the wife of the complainant Mrs.Santosh Devi telephonically and the same was accepted by her and she confirmed the credit details such as house address, details of the husband, telephone number etc. and had also agreed for the payment of the insurance premium through debit through the credit card held by her husband and therefore on her instructions, the policy was issued and the premium was being charged.

5. The learned District Forum in its analysis of the complaint has recorded that as per the complainant no insurance cover was ever sought by him or his wife whereas the contention of the OP is that the wife of the complainant had agreed to take the insurance policy and her voice was recorded in the CD , a copy of which had been produced before the District Forum. The District Forum having heard the conversation recorded in the audio CD has recorded that there is nothing to suggest if the same is the voice of the complainant’s wife. The learned District Forum also found no merit in the contention of the OP that since various details had been given by the wife of the complainant as recorded in the CD because the credit card had been issued by the OPs and all the above information recorded in the CD was actually already available with the OPs even before the issuance of the credit card and this information was also available with the OPs in the loan application of the complainant which had been advanced by the OP bank. The learned District Forum also has recorded in the impugned order that the OPs made unsolicited call to the wife of the complainant and if at all they should have talked to the complainant, who was the head of the family and should not have got into conversation with the women folk in the house. It has also been recorded by the learned District Forum that unsolicited calls are barred but the OPs are not bothering for the instructions on the subject and continue to make such calls particularly when the complainant was not in the house. The learned District Forum therefore held the view that the OPs should be penalized for making unsolicited calls. Even discussing the information contained in the CD allegedly having the recording of conversation of the wife of the complainant the learned District Forum has observed that they were so many relevant details which are not included in the conversation such as insured amount, period of insurance etc. and also more importantly no subsequent confirmation had been obtained from the complainant and therefore no contract can be said to have come into existence between the parties. Thus holding the OPs guilty of deficiency in service the learned District Forum directed OPs No.2 and 3 to refund the entire amount of the premium received by them and also directed them to pay a sum of Rs.50,000/- as damages for indulging in unfair trade practice and making unsolicited calls and deducting the premium without issuance of any insurance policy as well as causing mental and physical harassment and financial loss to the complainant. The direction be issued to comply with the order within 30 days from the date of receipt of the order.

6. Aggrieved by this, OPs had filed this appeal having been taken on board. Notices were sent to the respondents. Sh.Sandeep Suri, Advocate has appeared on behalf of appellants wherein Sh.Gaurav Bhardwaj, Advocate appeared on behalf of complainant. However none appeared on behalf of ICICI Bank Limited (respondent No.2) and it was proceeded against exparte.

7. Sh.Sandeep Suri, Advocate for the appellants first referred to the para No.3 of the complaint submitted that the policy had been taken by the wife of the complainant and emphatically submitted that the transcript of conversation placed on file between the OPs and the wife of the complainant clearly proves that the policy had been accepted by the wife of the complainant. The learned counsel also submitted that inspite of clear pleadings of the OPs on this issue no affidavit or evidence or denial by the wife of the complainant has been placed on record by the complainant and therefore no doubt is left that the policy in question had been duly accepted by the wife of the complainant. He thereafter referred to para No. 6 of the order and submitted that even though in the order, the learned District Forum had held the view that the voice in the CD was not of the complainant’s wife, the same had been done without any evidence on record or denial by the wife of the complainant as earlier submitted. The learned counsel also submitted that the appeal is mainly against award of Rs.50,000/- granted as compensation to the complainant as the amount charged from the

complainant towards the insurance premium has already been refunded to him.

8. Sh.Gaurav Bhardwaj, Advocate for the complainant on the other hand submitted that no refund of the amount has been given by the OPs as being stated by the learned counsel for the appellant. He also submitted that the impugned order was well reasoned and justified because the OPs knowingly harassed the customers and even in this case the legal notice sent to the OPs remained unanswered. In the end he emphatically denied that the wife of the complainant had any conversation with the OPs and submitted that the CD did not have the voice of the wife of the complainant.

9. We have gone through the evidence on record and heard the learned counsel for the parties.

10. The case of the appellant/OP is primarily based on the recording in the CD allegedly made with the wife of the complainant. In para No. 6 of the order, the learned District Forum has categorically stated that no evidence has been placed on record to prove that the voice recorded in the CD was of the wife of the complainant. Since the appellant/OP had filed the evidence in the form of CD, onus lay upon the appellants to prove that it contained the voice of the wife of the complainant. However as correctly stated by the learned District Forum no such evidence is on record and producing any CD as evidence without accompanying confirmation that the voice recording in the CD belongs to the person with whom the conversation is stated to be made, has no meaning and cannot be taken as cogent evidence. From the admitted facts of the case unsolicited call was admittedly made by the OP offering the so called insurance policy to the wife of the complainant. It is also admitted that no policy document had been issued to the complainant after the so-called issuance of the policy for which the OPs had already started deducting the premium. It is also on record that the information revealed in the alleged CD containing conversation with the wife of the complainant was already available with the OPs and therefore it does not conclusively prove that the OPs did have a conversation with the wife of the complainant and that she agreed to take the insurance cover.

11. In view of the foregoing discussion, we are of the clear view that the impugned order is well reasoned, just and fair. We also strongly support the view of the learned District Forum that the tendency on the part of OPs to make unsolicited calls needs to be strongly condemned and curbed. Thus we find no merit in the appeal and the same is dismissed and the impugned order is upheld.

12. Copies of this order be sent to the parties free of charge.

Pronounced.

25th November, 2009.

Appeal No.628 of 2009





Vandana Jindal aged 27 years d/o Sh.Bhagwan Dass Jindal, Resident of House No.3325, Sector 15-D, Chandigarh.

..…Appellant.
Versus

1. ICICI Lombard General Insurance Co. Limited, Zenith House, Keshavrao Khadye Marg, Mahalaxmi, Mumbai 400034.



2. ICICI Lombard Insurnace Company Limited, SCO No.24-25, First Floor, Sector 8-C, Chandigarh, through its Branch Manager.



3. Sh.Naresh Sidhwani, Incharge, Claim Office, ICICI Lombard General Insurance Co. Limited Quite Office 10, Sector 40-B, Chandigarh.



4. Manoj Dahmija, Incharge, Claim Office, ICICI General Insurance Company Limited, SCO No. 253, Top Floor, Sector 12, Karnal, Haryana.

..…Respondents.



BEFORE: MAJ. GEN. S. P. KAPOOR (RETD.), PRESIDING MEMBER.

MRS. NEENA SANDHU, MEMBER.



PRESENT: Sh. Vinay Kataria, Advocate for the appellant.



MAJ. GEN. S. P. KAPOOR (RETD.), PRESIDING MEMBER.

1. This is an appeal against order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 6.10.2009 passed in complaint case No. 535 of 2009 : Vandana Jindal Vs. ICICI Lombard General Insurance Co. Limited and another.

2. Briefly stated the case of the complainant was that her vehicle which was duly insured with the OP had encountered some mechanical defect when her brother was driving to Hisar, so the car was parked on the main road and the brother of the complainant went out to search a car mechanic but when he came back, he found the car in a very badly damaged condition as some other vehicle had hit the car while try to save a stray animal. The matter was reported to the Police Station Asand, District Karnal and OP was also informed. On the advise of OP No.4, complainant approached OP No.3 with requisite documents and apprised that the estimated cost of repair would be Rs.2 lacs approximately. The OPs instead of settling the claim issued a letter of renewal of policy and since the claim was not settled, this complaint had been filed.

3. The version of the OPs No.1 and 2 is that a surveyor and an investigator had been appointed to go into the matter and as per interim assessment, the cost of repair was assessed to be Rs.78,251/-. It has further stated by the OPs that the complainant vide letter dated 2.3.2009 was asked to discuss the matter with the surveyor and also provide some original and necessary documents but the complainant herself failed to provide the same in a timely manner and hence the final claim could not be processed and completed. It is also the case of the OPs that the market value of the car was only Rs.45,000/- and therefore the complainant is only entitled to this much amount for the damaged caused to the car.

4. The learned District Forum in the impugned order has recorded that in the survey report, there is no mention that any documents required were not provided. The learned District Forum has also recorded that inspite the report of the investigator having been submitted vide annexure R-2, the claim was not paid to the complainant, even though the investigator had found the claim to be genuine. The learned District Forum has also recorded that this car had been insured for the value of Rs.1 lac as per the insurance policy annexure C-11 and as per the surveyor, a sum of Rs.78,251/- was required for the replacement of a new body shell alone. It is further gone on to record that since as per the OPs, the market value of a similar model was only Rs.40,000/-. The OPs did not want to pay the complainant more than this amount. The learned District Forum has also recorded in the order that the IDV of the vehicle cannot be fixed by the OPs alone and this price of the vehicle had to be refixed with the consent of the complainant because initially the IDV was assessed by the OPs as Rs.1 lac and the OPs did not have the liberty to change this unilaterally. Holding the OPs guilty of delay in finalizing the claim, the learned District Forum allowed the complaint and directed the OPs to pay the complainant a sum of Rs.1 lac as compensation along with interest @ 8% p.a. w.e.f. 6.3.2009 till actual payment along with Rs.5,000/- as costs of litigation and if this amount was not paid within a period of 30 days from the date of receipt of copy of this order, the OPs were made liable to pay the entire amount along with penal interest @ 12% p.a. since the filing of the present complaint i.e. 20.4.2009 till payment.

5. Aggrieved by this order, the complainant has filed this appeal for enhancement of compensation. The plea taken by the learned counsel for the appellant is that no compensation has been paid to the complainant for the loss of the car. It is the contention of the complainant that compensation amounting to Rs.1 lac has been paid for delaying the settlement of the claim and for causing the complainant physical harassment and mental agony. He, therefore, prayed that the appeal be admitted for enhancement of compensation.

6. We have gone through the entire case and it is evident at the face of it that the learned District Forum has granted the complainant compensation of Rs.1 lac for the damage caused to the car and not for her mental agony and physical harassment because for compensating her on this account additionally interest @ 8% p.a. has been granted by the learned District Forum. A critical perusal of the impugned order clearly indicates that the learned District Forum has compensated the complainant on all counts i.e. for the damage caused to her car, delay for finalizing of the claim as well as for her physical harassment and mental agony vide the direction given in the impugned order and she has also been adequately granted the costs of litigation. Thus we do not find any merit in the contention of the complainant/appellant that she be granted another sum equivalent to the IDV value of the car i.e. Rs.1 lac. In this view of the matter, we find no merit in the appeal and the same is dismissed in limini.

7. Copies of this order be sent to the parties free of charge.

Pronounced.

25th November, 2009.

F.A.NO.133 OF 2007 AGAINST C.D.NO.127 OF 2006 DISTRICT CONSUMER FORUM-II HYDERABAD



Between
ICICI Lombard General
Insurance Company Limited
Rep. by its Manager, Osman Plaza
Banjara Hills, Opp. HSBC Bank
Hyderabad

Appellant/opposite party

A N D

Sri Hari Kishore Traders
3-11-2/2, Gopal Reddy Shutters
L.B.Nagar, Hyderabad

Respondent/complainant

Counsel for the Appellant Sri Katta Laxmi Prasad

Counsel for the Respondent Served



QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

&

SRI R.LAKSHMINARSIMHA RAO, MEMBER

TUESDAY THE SEVENTEENTH DAY OF NOVEMBER

TWO THOUSAND NINE



Oral Order ( As per R.Lakshminarsimha Rao, Member)
***

This appeal is directed against the order dated 3-08-2006 passed by the District Forum, Hyderabad II whereby the complaint filed by the respondent was allowed directing payment of a sum of Rs.1,10,000/- along with interest and an amount of Rs.10,000/- towards compensation.

Briefly stated the material facts giving rise to the appeal are: The respondent obtained a comprehensive insurance policy bearing number 3003/1015581/00/000 in respect of his goods carrying vehicle, van bearing registration number AP 29T 8440. The vehicle, on 24-11-2005 met with an accident resulting injury to the inmates and damage to the van. The Police Vanastalipuram registered a case in crime number 65 of 2005 on 24-11-2005 against the driver of the van. The respondent got prepared estimate for Rs.1,50,000/- by Jasper Industries Pvt.Ltd, an authorized dealer for Tatas and submitted his claim with the appellant insurance company.

The respondent appointed a surveyor to assess the damage caused to the van. The surveyor inspected the van, assessed the loss and submitted his report to the appellant. The appellant repudiated the claim of the respondent on 3-12-2005 on the ground that at the time of the accident the van was carrying five passengers instead of the permitted capacity of 3 including the driver. The respondent had got issued legal notice dated 12-12-2005 through his advocate and filed complaint against the insurance company.

Aggrieved by the order of the District Forum, the Insurance Company has filed the appeal contending that the vehicle carrying 5 passengers is contrary to the certificate of registration and the provisions of the Motor Vehicles Act as also contrary to the terms of the insurance policy.

The point for consideration is whether the van carrying two excess passengers amounts to breach of terms of the insurance policy?

The Tata van bearing registration number AP 29T 8440 and it being insured with the appellant on 4.11.2005 is not disputed. It is also not disputed that on 24-11-2005 the van met with an accident as evidenced by the FIR dated 24-11-2005 in crime no.65 of 2005 of the Police, Vanastalipuram, Hyderabad The FIR and Panchanama show that the van turned turtle at Gurramguda cross roads resulting injuries to the four passengers, a male and three female passengers who were shifted to Osmania Hospital for treatment.

The Insurance Policy specifies that the insured vehicle can carry three persons including the driver. Admittedly, the van at the time of the accident was carrying four persons in addition to the driver. Thus, two persons in excess to the permitted number of three persons were travelling in the van at the time of the accident. A perusal of the FIR and Panchanama would reveal that the accident occurred as the driver had driven the van at high speed and in negligent manner. The van carrying two extra passengers in any manner had not contributed to the cause of the accident. In the circumstances, though there was breach of the terms of the insurance policy, it cannot be described as fundamental for the cause of the accident.

Similar is the reasoning and conclusion of the Supreme Court in B.V.Nagaraju vs M/s Oriental Insurance Company Ltd 1996CTJ373. In that case the apex court dealt with a matter where a goods carriage carried more than permitted number of persons in terms of insurance policy. The Court held that the breach of the terms of the policy in relation to the number of persons travelling in the vehicle could not be said to be such fundamental character so as to afford ground to the insurer to deny indemnification unless there were some factors which contributed to the cause of the accident.

In the light of the judgment of the Supreme Court and the finding that the carrying of extra persons being not the cause for the accident and the breach of the terms of the policy being not fundamental to the cause of the accident, the appellant ought not have repudiated the claim of the respondent.

The appellant had not appointed any surveyor to assess the damage caused to the vehicle. The respondent appointed the surveyor without intimating the appellant. The surveyor had not intimated the appellant at the time of the inspection of the vehicle and assessment of the damage caused to the vehicle. The District Forum had awarded the amount of Rs.1,10,000/- on non standard basis by working it out at 75% of the claim amount. The District Forum has also awarded an amount of Rs.10,000/- towards compensation. The appellant, in fact had not disputed the assessment of the loss made by the surveyor. The appellant has challenged only the assessment of the amount on non standard basis. In the circumstances, we award on non standard basis 75% of the amount of Rs,1,43,877/- assessed by the surveyor which comes to Rs.1,07,907.75. The respondent is also entitled to interest on the said amount from the date of the order. The direction for compensation by the district forum is not proper and justifiable when the respondent was granted interest on the amount awarded. In that view of the matter, the impugned order is liable to be modified. Accordingly, the appeal deserves to be allowed.

In the result, the appeal is allowed. Consequently the impugned order is modified. The appellant directed to pay an amount of Rs1,07,907.75 along with interest @ 9%p.a. from the date of filling of the complaint till payment and an amount of Rs.2,000/- towards costs. Time for compliance four weeks.

FIRST APPEAL NO. 627 OF 2009

IN COMPLAINT CASE NO. 37 OF 2009

DISTRICT CONSUMER FORUM: PARBHANI.

Anusayabai W/o. Vijaykumar Bhosale

R/o. Muli, Tal. Gangakhed,

Dist. Parbhani. … Appellant

VERSUS

The Manager,

ICICI Lombard Insurance Company

Zenith House, Keshavrao Khade

Mahalaxmi, Mumbai-400 034. … Respondent


Coram : Shri.S.G.Deshmukh, Hon`ble Preiding Judicial Member.

Mrs. Uma S.Bora, Hon`ble Member.

Present : Adv. Shri.P.R. Adkine, for appellant.

:: ORAL ORDER::
Per Shri S.G.Deshmukh, Hon`ble Presiding Judicial Member



1. The present appeal is filed by the original complainant against the judgment and order dated 24.08.2009 in complaint case No. 37/2003, passed by District Consumer Forum, Parbhani.



2. The appellant/complainant’s case before the Forum is that, her deceased husband Vijaykumar Bhosale was the farmer in Maharashtra. It is contended that, Government of Maharashtra had obtained ‘ Shetkari Apghat Vima Yojna’ policy from respondent no.1 for the farmers in Maharashtra. The sum assured is Rs.1,00,000/-. It is contended that, the Vijaykumar Bhosale, the husband of the complainant died in the accident on 02.05.2005. Accordingly, the accident was registered in the police station. The P.M. was carried on dead body. The inquest panchnama was drawn. It is contended that, the present appellant preferred the claim through Tahasildar to ICICI Lombard on 23.05.2006. The claim was not settled thus, appellant approached the Forum.



2. Respondent no.1 appeared before the Forum and resisted the claim. It is contended that, the act of policy holder amounts to putting over life to Needless Peril and is excluded by Exclusion clause- 2 and thus, they have repudiated the claim. Thus, appellant approached the Forum.



3. Forum dismissed the complaint on the ground of limitation and also action of the deceased amounts to putting over life to Needless Peril and is excluded by Exclusion clause.



4. Being aggrieved by the said judgment and order original complainant came in appeal.



5. We heard learned counsel Shri. P.
R. Adkine, for appellant. We perused the papers. On perusal of papers it reveals that, the claim had been repudiated by ICICI Lombard on 26 Dec.2006, whereas the complaint has been filed on 12.02.2009. The appellant ought to have come before the Forum within period of two years from the date of repudiation i.e. 26.12.2006. It is also apparent that, the appellant did not file any application for condonation of the delay. The appellant did not mention any grounds to condone the delay in her complaint. It also appears that, the appellant did not mention the date of repudiation of the claim in her complaint.



6. In State Bank of India vs. M/s. B.S. Agricultural Industries reported in 2009 ALL SCR 1322. The Hon’ble Apex Court has observed that, provision about limitation is peremptory in nature requires Consumer Forum to see before it admit the complaint that it has been filed within two years from the date of cause of action. The consumer forum however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown.



7. In the instant case, we have mentioned that, the appellant nowhere mentioned the grounds for causing delay in filing the complaint. Neither she filed the separate application for condonation of the delay. So, there was no question to condone the delay for the reasons to be recorded in writing. The Forum below has considered this aspect and rightly dismissed the complaint. We are not inclined to interfere the order passed by the Forum, as the complaint is barred by the limitation. Appeal is dismissed summarily.

FIRST APPEAL NO. :618 OF 2008

IN COMPLAINT CASE NO.:

DISTRICT CONSUMER FORUM :

I.C.I.C.I.Lombard,

General Insurance Co.Ltd.,

Through its Legal Manager,

Zenith House, Keshavrao Khadye Marg,

Mahalaxmi, Mumbai 400034. …APPELLANT

(Org.Opp.No.1 & 2)

VERSUS
1. Machhindra Samrat Pakhare,

R/o N-9, K-74/2, Pawan Nagar,

Cidco,Aurangabad.

2. ICICI Bank,

Opp. Dist and Session Court,

Aurangabad. …RESPONDENTS

(No.1-Org.Complainant,

No.2-Org.Opp.No.4)

CORAM : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.

Mrs.Uma S.Bora, Hon`ble Member.

Present : Adv.Shri.R.H.Dahat for appellant,

Adv.Shri.S.N.Pagare for respondent No.1,

None for respondent No.2.

O R A L O R D E R

Per Shri.S.G.Deshmukh Hon`ble Presiding Judicial Member.



1. The present appeal is filed by original opponent No.1 & 2 against the judgment and order dated 09.04.2008 in complaint case No. 422/07 passed by District Consumer Forum, Aurangabad.



2. Respondent No.1/Org.Complainant`s case before the Forum is that, he had purchased Tata Specio Gold MH-20/AG-8633 on 10.02.2006 by raising loan from I.C.I.C.I.Bank. It is contended that the vehicle was insured with present appellant for the period 02.10.2006 to 1.10.2007. It is contended that vehicle in question was stolen in the midnight in between 24.5.2007 and 25.5.2007. It is contended that the complainant lodged F.I.R. in Cidco Police Station, Aurangabad in the morning of 25.5.2007 and informed the present appellant on 10.6.2007 and submitted the claim. It is contended that claim was repudiated on the ground that insured vehicle was being used for hire and reward purpose. It is not covered under the terms and conditions of the policy. Thus respondent No.1 approached the Forum.



3. Present appellant appeared before the Forum and resisted the claim. It is contended that they have rightly repudiated the claim as the vehicle was used for hire and reward purpose thus complainant committed breach of the terms and conditions of the policy.



4. Respondent No.2 was served but did not appear before the Forum and thus the complaint was proceeded exparte.



5. The Forum below after going through the papers and hearing the parties allowed the complaint and directed appellants to pay Rs.4,30,972/- with interest @ 9% p.a. from 18.8.2007.



6. Being aggrieved by the said judgment and order passed by the District Forum, Aurangabad, I.C.I.C.I.Lombard came in appeal.



7. Notices were issued to the respondents. Adv.Shri.S.N.Pagare appeared on behalf of respondent No.1. None appeared on behalf of respondent No.2. We heard learned counsel Shri.R.H.Dahat for appellant and learned counsel Shri.S.N.Pagare for respondent No.1. Learned counsel Shri.Dahat submitted that as the vehicle in question was used for hire and reward purpose complainant is not entitled for insurance claim as he committed breach of terms and conditions of the policy.



8. Learned counsel Shri.Pagare for respondent No.1 fully supported the judgment and order passed by the Dist.Forum. We perused the papers and gave our anxious to the arguments advanced by both counsels. On perusal of papers, it reveals that appellant is not at dispute that vehicle in question has been insured with them for amount of Rs.4,30,972/-. There is also no dispute that the vehicle has been stolen by somebody else in the night between 24.5.2007 to 25.5.2007. Accordingly, F.I.R. is filed in the Cidco Police Station, Aurangabad. The claim had been repudiated by appellant on the ground that the vehicle was used for hire purpose which is not covered under the policy. It is apparent from the complaint that in the relevant night when vehicle was stolen it was not being used on hire. It has come on record that the vehicle was parked in front of house of complainant. However, it also be mentioned that use of vehicle for hire purpose can not be said fundamental breach of policy in question. It is not the case of appellant that vehicle was stolen only because same was used for hire purpose. The Forum below has rightly considered all these aspects and rightly allowed the complaint. We are not inclined to interfere the order passed by the Forum. We pass the following order.

O R D E R

1. Appeal is dismissed summarily.

2. No order as to cost.

3. Pronounced and dictated in the open court.

4. Copies of the judgment be issued to both the parties.

Complaint Case No : 994 of 2009

Date of Institution : 16.07.2009

Date of Decision : 10.11.2009
Manmohan Singh s/o Sh. Harbans Singh, R/o H.No.3393, Sector 71, SAS Nagar, Mohali.

….…Complainant

V E R S U S
ICICI Lombard General Insurance Co. Ltd. through its:

1] Branch Office:

The Manager, ICICI Lombard General Insurance Co. Ltd., Quiet Office No. 10, Sector 40-B, Chandigarh.

2] Registered Office:

ICICI Lombard General Insurance Co. Ltd., ICICI Bank Towers, Bandra – Kurla Complex, Mumbai – 400051.

3] Corporate Office:

ICICI Lombard General Insurance Co. Ltd., Zenith House, Keshav Rao Kahde Marg, Mahalaxmi, Mumbai – 400034.

.…..Opposite Parties

CORAM: SH.JAGROOP SINGH MAHAL PRESIDENT

SH.SIDDHESHWAR SHARMA MEMBER

DR.(MRS) MADHU BEHL MEMBER
Argued by:Sh.Gurdial Singh, Adv. for Complainant.

Sh.Mrigank Sharma, Adv. for OPs.

PER SH.JAGROOP SINGH MAHAL, PRESIDENT

Concisely put, the Complainant was approached and allured by the agents of the OP Insurance Co. to take and avail various insurance plans/schemes. Accordingly, he got his Maruti Zen (PB-65-B-9593) insured with the OP after paying a total premium of Rs.3,888/- vide Policy (Ex.C-1) which was valid from 28.8.2008 to 27.8.2009. Unfortunately, the said car met with an accident on 25.10.2008, due intimation of which was given to the OP on the same day. Thereafter, a Surveyor was appointed, who inspected the damaged car and after getting the rates from M/s Chittosho Motors, Mohali, he calculated the estimate to be Rs.31,965.77P. It was averred that the Complainant was given a free option to get the car repaired either with brand new spare parts or with second hand/used spare parts. As per the advice given by the Surveyor the Complainant obtained the rates of second hand/used spare parts from M/s Punjab Motors, Sector 45-B, Chandigarh (Ex.C-3) and rates of labour charges from M/s Dashesh Car Care, Sector 32-C, Chandigarh (Ex.C-4) and shown the same to the OP as well as the Surveyor concerned, who told him to go ahead with the work. As such, he got the repairs of the car and submitted the bills to OP for reimbursement of the amount of Rs.20,246/-. It was alleged that against the total amount of Rs.20,246/- only an amount of Rs.7,943/- was reimbursed by the OP vide Cheque dated 1.12.2008, which was got encahsed under protest. A legal notice dated 14.5.2009 (Ex.C-6) was also served upon the OPs, but in vain. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2] Notice of the complaint was sent to OPs seeking their version of the case.

3] OPs filed their joint reply admitting the factual matrix of the case. It was pleaded that immediately upon intimation of the claim, the OP deputed an independent Surveyor for the proper assessment of the loss and the said Surveyor vide report dated 26.11.2003 assessed the claim to the tune of Rs.7,943/-. It was asserted that the entire claim was assessed and scrutinized by the Surveyor and the amount was released to the Complainant on 1.12.2008 and the present complaint was filed after a period of more than 7 months i.e. on 1.12.2008, which was nothing but an attempt on the part of the Complainant to get the amount as per his wishes after accepting the amount assessed by the Surveyor. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

4] Parties led evidence in support of their contentions.

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

6] The contention of the Complainant is that with the consent of the OP and the Surveyor, he purchased second hand/used parts for being used in his car, regarding which he submitted the retail invoice Annexure C-3. The total value of the parts was Rs.7,330/- + Rs.916/- as VAT i.e. Rs.8,246/-. However, if he had used the new parts then the value thereof would have been Rs.13,432.67P + Rs.1,679.10P as VAT i.e. total of Rs.15,111/-. The parts were, therefore, about 50% of the new parts and were much economical. However, when the Surveyor submitted his report, he first mentioned less amount as the price of the parts and thereafter, applied depreciation thereon and in this manner, reduced the amount of compensation to Rs.4522.50P. In our opinion, when the Complainant was using second hand parts and the value of which was even less than the depreciated value of the new spare parts, no further depreciation should have been applied by the Surveyor. The surveyor has not led any evidence to prove as to how he assessed the value of the used parts lesser than the amount for which the Complainant had purchased it. It was only guess work on the part of the Surveyor, which cannot be accepted in view of the direct evidence in the shape of Annexure C-3. We are, therefore, of the opinion that instead of Rs.4522.50P, the Complainant is entitled to the full amount of Rs.8246/- as the value of the spare parts.

7] The report of the Surveyor further shows that he assessed the cost of labour only on the parts which were replaced. He totally ignored the denting and painting repair and the other ancillary repairs, such as shocker repair, bush set, tyrod end repair, alignment and balancing, which had got to be done due to the accident. The Surveyor allowed only Rs.3920/- as the cost of labour, but did not allow Rs.12,000/- which the Complainant has spent vide Annexure C-4. The Surveyor has not given any criteria as to how the labour cost was assessed by him, nor gave any reasons as to why the denting and painting etc. have not been allowed. We are, therefore, of the opinion that the report of the Surveyor is far from truth and cannot be accepted to determine the amount of compensation.

8] The Complainant has paid Rs.8246/- as the price of the parts vide Annexure C-3 and paid Rs.12,000/- as labour charges vide Annexure C-4. We are of the opinion that the Complainant is entitled to the full amount thereof. The present complaint therefore, succeeds. The same is accordingly, allowed. The OPs are directed to pay to the Complainant Rs.20,246/- along with litigation costs of Rs.1100/- minus the amount already paid, if any. If the amount is not paid within 30 days from the date of receipt of the copy of the order, the OPs would pay interest thereon @12% per annum since the filing of the present complaint i.e. 16.07.2009, till the amount is actually paid to the Complainant.

Certified copies of this order be sent to the parties free of charge. The file be consigned.

Complaint Case No.65/2009

Date of Institution 25-2-2009

Date of Decision 12-11-2009


Sh.Surinder Kumar alias Surender Pal son of Sh.Ganga Ram resident of village Bagla, Post Office Nagchala, Tehsil Sadar, District Mandi, H.P.

…Complainant
V/S

M/S ICICI Lombard General Insurance company ltd. Mandi, District Mandi, H.P. through its Manager Customer Service Mandi, H.P.

…..Opposite party

For the complainant Sh. Narinder Kumar , Advocate

For the opposite party Sh. Sandeep Bhardwaj, Advocate

Complaint under Section 12 of the

Consumer Protection Act, 1986.

ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party .The case of the complainant is that he purchased a jersey cow in the sum of Rs.12,000/-. The said cow was insured with the opposite party vide policy No.4057/0000098 on 18-3-2008 for a period of one year . Tag No. ILN-61364 was allotted to the insured cattle . On 12-6-2008 the cow died at about 1.30 PM Death of the cow was duly intimated to the opposite party on 12-6-2008 at about 2 PM. The opposite party deputed doctor Mr.Sanjay who accompanied the complainant and verified the deceased cow and has also verified the token of the same . Photographs of the deceased cow were also taken by the Veterinary Doctor of Veterinary Hospital Bhangrotu . Thereafter the Senior Veterinary Officer Veterinary Hospital Bhangrotu visited the spot and conducted the postmortem of the cow in presence of Pradhan ,Gram Panchayat Nagchala and as per his opinion , the cow died due to septicemia . The complainant averred that at the time of death the pregnancy of six months was found in the cow . The complainant averred that he had submitted all the documents to the opposite party including photographs and the ear tag which was allotted to the cow by the opposite party for early settlement of the claim. It had been alleged that the opposite party had repudiated the claim of the complainant illegally vide letter dated 29-9-2008 on the ground that the deceased cow was having no ear tag .The value of the cow has also been shown Rs.4000/- instead of Rs.10,000/-by the opposite party. The complainant represented the repudiation before the opposite party but the same has been condemned unheard .On these facts , the complainant has sought a direction to the opposite party to pay Rs.10,000/- , the assured sum of the cattle with interest at the rate of 12% PA from the date of death and also to pay Rs.50,000/- as compensation , and also to pay costs of complaint at Rs.10,000/-.

2. The opposite party has resisted the complaint and raised preliminary objections that there is no deficiency in service on its part , that the complaint is not maintainable that the cow has died of disease named septicemia and at the time of death of the cow six months pregnancy was found and that it has been specifically mentioned in the policy document that diseases are excluded from the cover of insurance unless specifically mentioned. On merits , the opposite party had admitted that the cow was insured with it and died during the currency of the policy. It has been contended that the cow had died due to disease named Septicamia which is not covered under the policy and has rightly repudiated the claim . Rest of the averments of the complaint have been denied being wrong. The opposite party had prayed for dismissal of the complaint.

3. We have heard the ld. counsel for the parties and have carefully gone through the record of the case . It is admitted case of the opposite party that cow in question was insured with it . The opposite party had taken inconsistent pleas while repudiating the claim of the complainant. In the reply it has been mentioned that the claim has been repudiated on the ground that deceased cow was not bearing any ear tag and the cow had died due to disease named as Septicemia which is not covered under the policy as it has been specifically mentioned in the policy that diseases are excluded from the cover of insurance unless specifically mentioned .However, in the repudiation letter dated September 29,2008 addressed to the complainant Annexure C-5 the claim has been repudiated only on the ground that the claim was received without ear tag. In this back ground , the repudiation letter Annexure C-5 has material bearing on the decision of this complaint and therefore, its contents are being reproduced herein asunder :-

On perusal of the documents submitted by you, we find that the Claim has been received without ear tag. The said cause of death is excluded from cover under clause 8 of the policy wording. The said clause is reproduced hereunder:-

8. The company shall not be liable under this policy for compensating the insured for any loss or damage in the following events

“ all the claims received without ear tags” ( No tag no claim principle)

Under the circumstances , we regret to inform you that the said claim cannot be settled.

4 A perusal of the Annexure C-5 extracted hereinabove clearly reflects that the claim has not been repudiated on the ground that the cow was not insured for any disease .From the perusal of the aforesaid repudiation letter Annexure C-5 and from the perusal of reply it is clear that the opposite party has chosen to take up inconsistent pleas in this case. During the course of arguments also , the ld. counsel for the opposite party has failed to explain as to why the inconsistent pleas have been taken by the opposite party. In our opinion once the complainant was informed by way of repudiation letter Annexure C-5 that his claim has been repudiated only on the ground that the same was received without “ear tag”, the opposite party cannot be allowed to take another plea in repudiating the claim regarding exclusion of the disease from the cover of insurance.

5 Now the question which arises for determination by this Forum is as to whether the deceased cow was not bearing the ear tag as allotted to it by the opposite party. The perusal of the insurance cover note annexure C-1 shows that the tag No ILN.61364 was allotted to the deceased cow . In the post mortem report Annexure C-2 also the same tag number has been mentioned. Post mortem report is a credible piece of evidence as it has been issued by Senior Veterinary Officer , Incharge Veterinary Hospital Bhangrotu, District Mandi, H.P. in the discharge of his official duty and there is no reason to disbelieve the same. No evidence to the contrary has been led by the opposite party. The complainant has specifically mentioned in the complaint that he had submitted all the documents in original to the opposite party and has filed his affidavit in support of the complaint. Even the reply filed on behalf of the opposite party is not supported by the affidavit of any of its official. Moreover no affidavit in evidence has been filed on behalf of the opposite party. Therefore, it cannot be said that the claim has been received by the opposite party without “ear tag ”. In our opinion, the identity of the deceased cow has been well established in view of the post mortem report as tag number which has been issued to the cow has been mentioned in the same . Hence we have no hesitation to conclude that the complainant has proved that the opposite party had been deficient in providing service by repudiating the claim . In the repudiation letter insurance claim has been mentioned as Rs.4000/-, However, the perusal of the cover note Annexure C-1 shows that the market value of the cow at the time of insurance was Rs.10,000/- Hence the complainant is held entitled to Rs.10,000 /- on account of death of the insured cattle.

6 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay the insured sum i.e. Rs.10,000/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party is also directed to pay to the complainant Rs.2000 /- on account of compensation for harassment suffered by him and also to pay a sum of Rs.1,500/- as costs of litigation.

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

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

Complaint Case No.79 /2009

Date of Institution 16-3-2009

Date of Decision 12-11-2009

Hans Raj son of Sh. Prem Singh resident of village Kohal, Post Office Gagal , Tehsil Sadar, District Mandi, H.P.

…Complainant

V/S

ICICI Lombard General Insurance company ltd. , through its Manager Branch Office Mandi, District Mandi, H.P.

…..Opposite party


For the complainant Sh. Ramesh Thakur , Advocate

For the opposite party Sh. Sandeep Bhardwaj, Advocate



Complaint under Section 12 of the

Consumer Protection Act, 1986.

ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party .The case of the complainant is that he insured a cow in the sum of Rs.10,000 with the opposite party vide policy No.4057/0000098 for the period from 15-2-2008 to 14-2-2009. During the subsistence of the policy, the cow met with its pre-mature death on 24-2-2008 with sudden collapse and sign of struggling The matter was immediately reported to the opposite party and claim was lodged with the opposite party on the same day ,but the claim has been arbitrarily and illegally rejected vide letter dated 25-9-2008 on the ground that disease contracted within 15 days from the commencement of the date of the policy . The complainant has alleged that the repudiation of the claim is unjust as the said clause was not the part of the insurance policy nor it was brought to the notice of the complainant and is not binding upon him. On these facts , the complainant has sought a direction to the opposite party to pay Rs.10,000/- , the assured sum of the cattle and also to pay Rs.5,000/- as compensation , and also to pay costs of complaint at Rs.5,000/-.

2. The opposite party has resisted the complaint and raised preliminary objections that there is no deficiency in service on its part , that the complaint is not maintainable that cattle was insured subject to certain limitations, exception and conditions and if these terms and conditions are not complied with . the insured is not entitled to any compensation and the death of the animal in question has taken place within 15 days of the commencement of the policy and as such the complainant is not entitled to any compensation from the opposite party, that the complainant is guilty of suppression of material facts and that the complainant has misrepresented and concealed the material facts and , therefore , the complainant is not maintainable and deserves to be dismissed. On merits , the opposite party had reiterated the stand as taken in the preliminary objections and further stated that the claim has been rightly repudiated. The opposite party has prayed for dismissal of the complaint.

3. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.

4. We have heard the ld. counsel for the parties and have carefully gone through the record of the case . The insurance of the cow and its identity is not in dispute. It is also not in dispute that the cow was insured in the sum of Rs.10,000/- as per the cover note Annexure R-1 .However, the claim of the complainant has been repudiated by the opposite party on the ground that since the insured animal died within 15 days of the commencement of the policy, the insured is not entitled to any compensation from the insurer as per the terms and conditions of the insurance policy.

5. Now the question which arises for consideration by this forum is as to whether the opposite party was justified in repudiating the claim of the complainant on the aforesaid ground . As per the case of the complainant, aforesaid exclusion clause was not a part of the insurance policy nor it was brought to the notice of the complainant at the time of the issuance of the policy, therefore, the same is not binding upon the complainant. The complaint is supported with the affidavit of the complainant. However, the opposite party has denied the aforesaid contention of the complainant. Therefore, the onus was upon the opposite party to prove and establish that the terms and conditions of the insurance policy were a part of the insurance policy and the same were made known to the complainant However , no evidence has been adduced by the opposite party to the effect that it had explained the exclusion clauses to the complainant and the terms and conditions of the policy were supplied at the time of the issuance of the policy. In the reply the opposite party had simply denied the allegations of the complaint and the same is not supported with any affidavit . In the affidavit dated 28-10-2009 Annexure R-3 of Sh. Ravinder Singh adduced in evidence on behalf of the opposite party nothing has been mentioned that the exclusion clause was ever brought to the notice of the complainant and terms and conditions were the part of the policy and supplied alongwith it. Therefore, in the absence of any evidence on record, it cannot be said that the terms and conditions were the part of the policy and same were supplied to the complainant at the time of issuance of the policy. It is well settled that unexplained or unnoticed exclusion clause would not be binding on the insured . In the case titled National Insurance Co. Ltd vs D.P. Jain III( 2007) CPJ-34( NC) = 2007(2) CPC -251 ( NC) it has been observed by the Hon’ble National Commission that unexplained or unnoticed exclusion clauses would not be binding to the insured , the reason being the Regulations are of mandatory in nature so as to protect the consumers interest. In AIR 2000 Supreme Court 1014 titled M/S Modern Insulations Ltd vs Oriental Insurance company It has been held by the Hon’ble Apex Court as under:-

“It is fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non disclosure of the facts which the parties known . The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since obligation of good faith applies to both equally”

In the present case , since it has been proved on record that the terms and conditions of the policy were not the part of contract and the exclusion clause was also not brought to the notice of the complainant, as such the exclusion clause is not binding on him and no benefit can be derived by the opposite party from same . Hence we hold that the opposite party had been deficient in providing service to the complainant and repudiation of the claim is illegal and unjustified and the complainant is entitled to Rs.10,000 /- on account of death of the insured cattle.


7 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay the insured sum i.e. Rs.10,000/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party is also directed to pay to the complainant Rs.2000 /- on account of compensation for harassment suffered by him and also to pay a sum of Rs.1500/- as costs of litigation.

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

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

Complaint Case No.72 /2009

Date of Institution 6-3-2009

Date of Decision 11-11-2009

Kanta Devi Soni wife of Sh.R.K.Soni ,House No.237/S-3 BBMB Colony, Tehsil Sundernagar, District Mandi, H.P.

…Complainant

V/S

ICICI Lombard General Insurance Ltd through its Manager through its Branch Manager Sahib Complex Ist Floor Plot No.118/9 College Road, Mandi, H.P.

…..Opposite party





For the complainant Sh. Neeraj Sharma , Advocate

For the opposite party Sh. Sandeep Bhardwaj, Advocate



Complaint under Section 12 of the

Consumer Protection Act, 1986.



ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party .The case of the complainant is that she is the owner of Hyundai Santro make car No.HP-31A-7474 which was insured with the opposite party in the sum of Rs.2,34,000/- with effect from 15-9-2008 to 14-9-2009 as per insurance policy Annexure C-2. During the currency of the policy, the vehicle in question met with an accident on 20-9-2008 while being driven by Sh. Nek Ram @ Raj Kumar driver near Bilaspur and vehicle was damaged badly. The vehicle was brought to the campus of authorized dealer i.e. M/S Shivansh Hyundai at Gutkar on 21-9-2008 for repair but the vehicle was declared beyond repair and in between the accident was reported to the opposite party. The complainant alleged that the non settlement / repudiating of the claim by the opposite party amounts to deficiency in service and she had been forced to pay parking charges of Rs.12,000/- to the dealer On these facts , the complainant has sought a direction to the opposite party to pay the insured sum i.e Rs. 2,34,000/-with interest and had also prayed Rs.12000/- as parking charges paid to the Shivansh Hyundai . Apart from this, litigation charges and costs of complaint has also been prayed .

2. The opposite party resisted the complaint and raised preliminary objections that there is no deficiency in service on its part , that the complainant has played fraud upon the opposite party simply to extract money from the insurer , that the opposite party got the case investigated through the investigator and it was found that the accident had occurred on 14-9-2008 and on this date there was no contract of insurance between the complainant and the opposite party, that the complainant has changed the date of accident from 14-9-2008 to 20-9-2008, that the complainant has admitted before the investigator that the accident has occurred on 14-9-2008 at Nauni , that the complainant did not lodge first information report regarding the accident which is the requirement to lodge the claim with the opposite party, that the complainant has suppressed the material facts and therefore the complaint is not maintainable, that the complainant has flouted the principle of law of equity, that the complainant is estopped to file the complaint by her own act and conduct and that the opposite party got the loss assessed through surveyor who assessed the same at Rs.1,65,851.78 paise subject to policy of insurance . On merits the opposite party has reiterated the stand as taken in the preliminary objections. The opposite party had prayed for dismissal of the complaint.

3. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.

4. We have heard the ld. counsel for the parties and have carefully gone through the record of the case . The case of the complainant is that her vehicle was insured with the opposite party with effect from 15-9-2008 to 14-9-2009 as per the insurance policy Annexure C-2 and the vehicle met with an accident on 20-9-2008 near Bilaspur . Conversely the case of the opposite party is that the accident had occurred on 14-9-2008 but on that date there was no contract of insurance between the complainant and the opposite party. The further case of the opposite party is that the complainant had mis-represented the facts and played fraud upon the opposite party to extract money as she has changed the date of accident from 14-9-2008 to 20-9-2008. Therefore, the opposite party had repudiated the claim of the complainant only on the ground that on the date of the accident the vehicle was out of the policy period Repudiation letter dated 24-10-2008 has been annexed as Annexure C-3.

5 Now the question which arises for consideration before this Forum is as to whether the date of accident of the vehicle was 14-9-2008 and the complainant had changed the date of accident to 20-9-2008 . The onus was upon the opposite party to establish that the complainant had played fraud upon it as she had changed the date of the accident . In this respect , the opposite party has placed reliance upon the report of the Investigator Er. Sachin Gulati dated October 18,2008 Annexure R-3 wherein it has been mentioned that the vehicle met with an accident on 14-9-2008 and the said report is based upon the statement of the insured , local inquiry as well as towing receipt However, only photocopy of statement of the complainant / insured Annexure R-9 has been filed . No original copy of the statement has been placed on record by the opposite party. Furthermore, it has been observed in the report that the Investigator had made local inquiry from nearby persons , but no statement of any local person has been placed on record . The towing Bill dated 14-9-2008 alleged to have been issued by M/ S Darbra Recovery service Bilaspur is also a photocopy ,therefore , the same cannot be relied in evidence . The opposite party should have produced in evidence the affidavit of the complainant in support of her statement before the Investigator and affidavit of the person who had issued the towing receipt and the affidavit of the investigator Er. Sachin Gulati in support of his report dated 18-10-2008 but no such affidavits have been filed by the opposite party in support its allegations regarding the change of date of accident . The investigation report unsupported by the affidavit of the person on the basis of whom statement it was prepared cannot be relied upon. The investigator had only recorded the alleged statement of the complainant but had failed to procure her affidavit . Therefore, in the absence of her affidavit , this forum is not satisfied as to whether statement of the complainant was actually given by the complainant . It is settled law that every fact which is alleged in the report of the investigator has to be proved as fact on record . However, the opposite party had failed to prove the facts which have been alleged in the aforesaid Investigation report. No other evidence has been produced by the opposite party to establish that vehicle in question met with an accident on 14-9-2008. Therefore , in the absence of any satisfactory evidence on record , it cannot be said that the accident took place on 14-9-2008 as contended by the opposite party. On the other hand , the complaint is supported with the affidavit of the complainant Kanta Devi and affidavit of her husband Sh.R.K.Soni as well as her driver has also been filed by the complainant to establish that accident took place on 20-9-2008. It is not in dispute that the vehicle in question was insured with the opposite party with effect from 15-9-2008 to 14-9-2009. The opposite party had failed to explain as to why its agent had insured the vehicle on 15-9-2008 when the same allegedly met with an accident on 14-9-2008. It is a matter of common knowledge that when there is a gap in renewing the insurance policy, the same is renewed after the complete satisfaction of the insurer about the physical condition of the vehicle .In the present case, as per the renewal notice of the opposite party dated July 3,2008 annexure R-5 previous policy expired on 12th September 2008 . The policy was renewed with effect from 15-9-2008. Hence there was a gap of three days in renewing the previous policy. Therefore, the presumption arises with respect to the fact that the agent of the insurer must have inspected the physical condition of the vehicle prior to the insurance and only then insurance policy was issued by the opposite party. Therefore, now it does not lie in the mouth of the opposite party to state that the vehicle met with an accident on 14-9-2008 prior to the issuance of the policy as it has failed to explain as to why the vehicle was insured on 15-9-2008 when the same allegedly met with an accident on 14-9-2008. The reason given by the opposite party for repudiation of the insurance claim does not appear to be plausible . Hence we hold that the opposite party was not justified in repudiating the just and legitimate claim of the complainant on the alleged ground of change of date of the accident .

6 Now the next question which

arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by her due to accident of the vehicle . The complainant in her complaint had claimed Rs. 2,34,000/- i.e. the insured sum. On the other hand , the opposite party

has adduced in evidence Surveyor report dated 17-10-2008 of. Er. Mohinder K Sharma ,Surveyor and Loss Assessor Annexure R-2 which shows that he had assessed the net loss in the sum of Rs.1,65,851/- on repair basis . The report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons. The Hon’ble National Consumer Disputes Redressal Commission in

United India Insurance company vs Jadhav Kirana Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor dated 17-10-2008 which is duly supported with his affidavit and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle is at Rs.1,65,851/-.



7 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.1,65,851/-to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party is also directed to pay to the complainant Rs.10,000 /- on account of compensation for harassment suffered by her due to deficiency in service and also to pay a sum of Rs.2500/- as costs of litigation.

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

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

Announced