C.C.NO.277/2008
Wednesday, the 9th day of December, 2009
K. Sugumar,

B9, Tristar Apartments,

657, Avinashi Road,

Coimbatore – 641 037. --- Complainant

Vs.

1. M/s. ICICI Lombard General Insurance

Co. Ltd. ICICI Bank Towers,

Bandra Kurla Complex,

Mumbai – 400 051.

2. M/s. TTK Health care Services Pvt.Ltd.,

ALF House, 3rd Floor,

Lok Bharati complex,

Mumbai – 400 059. -- Opposite Parties



This case coming on for final hearing before us on 12.11.09, 25.11.09 27.11.09 and 7.12.09 in the presence of , Thiru. B. Kali and Thiru. K.Subtra Advocates for complainant and, Thiru.A.M. Martin Advocate for the 1st opposite party and upon perusing the case records and hearing the arguments and the case having stood over to this day for consideration, this Forum passed the following:

ORDER

Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite party to reimburse a sum of Rs.44,164/- towards the expenses incurred by the complainant for the treatment of the illness, to pay a sum of Rs.50,000/- towards compensation for mental agony, and to pay towards cost of the proceedings.

The averments in the complaint are as follows:

1. The complainant took an Insurance policy for Mediclaim designated “ICICI Lombard Healthcare Insurance” from the 1st opposite party for a sum of Rs.2 Lakhs and paid a premium of Rs.13,439/- on 16.10.2007 at Coimbatore. The Policy Number is 4034/02992613/00/000 for a period from 16.10.2007 to midnight of 15.10.2008. The 2nd opposite party is the 3rd party Administrator (TPA) for the Mediclaim Policy. On 18.01.2008 the complainant got himself admitted in the PSG Medical college Hospital for an ailment described as “Low Back pain, probably Muscle Skeletal”. He was treated at PSG Medical College Hospital as an inpatient from 18.01.2008 till 2.02.2008 and discharged on 2.02.2008. The complainant preferred a claim of Rs.44,164 filing Form No. 9 Claim Form on 4.02.2008.

2. As required by the 2nd opposite party in their letter dated 30.04.2008 some more case records and original bills were sent on 12.05.2008 but his claim rejected by the 2nd opposite party on 20.6.08 stating that the claim is made in connection with a pre-existing illness and hence the claim is rejected under exclusion clause No.3.1 in the policy. The ailment for which treatment was taken from 18.01.2008 to 2.02.2008 as an inpatient at PSG Medical College Hospital at Coimbatore was not pre existing. Hence this complaint.

The counter Statement filed by the 1st opposite party are as follows:

3. The complainant took a medical claim policy with the opposite party in the month of October 2007. This opposite party had issued the policy. Generally, if the claim is admissible, the 2nd opposite party reimburses the claim amount and charges this opposite party for the claim amount paid to the claimant. Therefore the complainant ought to have intimated this opposite party about the denial by the 2nd opposite party. The complainant himself has admitted in this complaint that he consulted Dr.REX for “BACK PAIN” on 15.10.2005, which has to be taken as admission by the complainant about the fact that he had been suffering from “BACK PROBLEM” since then or even much before. Therefore, to cure the same and also to take treatment the complainant has concealed the aliment and had approached this opposite party for a policy and had obtained the same. The application had contained certain clauses to be had be declared by the complainant. The complainant had declared that he had no preexisting disease or aliment”. This means that the complainant had concealed the fact that he had consulted Dr. REX for Back Problem. After obtaining the policy the complainant has approached PSG hospital on 18.01.2008 and got himself admitted and treated for the same and was discharged on 2.02.2008.

4. The complainant put forward a claim of Rs.44,164/- for expenses, which was rightly denied by the 2nd opposite party. The ailment for which the treatment was taken from 18.01.2008 to 2.02.2008 as in patient at PSG Medical College Hospital at Coimbatore is pre existing. It is false to state that the LOW BACK ACHE suffered by the claimant on 15.10.2005 has nothing to do with the Muscular Skeletal for which the treatment was taken from 18.01.2008 to 2.02.2008. The contentions of the opposite party is that the referral to the Dr. REX regarding the BACK ACHE had to be intimated to this opposite party at time of declaring the application. Failing to do so the exclusion clause would come into play. There is no deficiency of service and the complainant is not entitled to any compensation, as claimed in the petition.

5. The complainant and the opposite parties have filed Proof Affidavit along with documents Ex.A1 to A5 was marked on side of the complainant and no documents was marked on side of the opposite parties.

The point for consideration is

Whether the opposite parties have committed deficiency in service? If so what relief the complainant is entitled to?



ISSUE 1

6. The case of the Complainant is that he took an Insurance Policy for Mediclaim on 16.10.2007 from the 1st opposite party for a sum of Rs.2,00,000/- on 18.01.2008, he got himself admitted in the P.S.G. Hospital for ailment, treated as inpatient from 18.01.2008 to 2.02.2008, preferred a claim by filing Form No. 9 claim form on 4.02.2008 claiming a total sum of Rs.44,164/- but the 2nd opposite party who is a third party Administrator (T.P.A.) for the Mediclaim Policy rejected the claim on 20.06.2008 stating that the claim is made in connection with a pre-Existing illness. The reason given for rejection of the claim by the 2nd opposite party is contrary to the facts and law.

7. The case of the opposite parties is that there is no intimation or no claim Form to the opposite party. After obtaining the Policy the complainant has approached PSG Hospital and got himself admitted and treated for illness which is Pre-existing one and claims arising an account of or in connection with any pre-existing illness are excluded from the scope of cover of Policy.

8. As per the terms of the policy, the charges incurred by the insured for medical treatment of the illness as an inpatient in a hospital are reimbursable. As per the policy, the claim arisen on account of or in connection with any pre-existing illness shall be excluded from the scope of cover under the policy. But the present case the 2nd opposite party in his letter dt.20.6.08 has pointed out that the consultation papers of Dr.Rex dt.15.10.05 indicate that the claimant was suffering from low back ache which is prior to the policy and hence the claim is rejected as per clause 3(1). But the contention of the complainant is that the low back ache suffered by the complainant on 15.10.05 has nothing to do with the Muscle Skeletal for which the treatment was taken. But Dr.Rex whom the complainant consulted on 15.10.05 had not diagnosed the ailment as Muscle Skeletal. Therefore the rejection of the mediclaim by the opposite parties on the ground that the claim is made in connection with the pre-existing illness is totally not correct. Actually it was only a muscle pain and not a serious ailment. Dr.Pranesh, Neurologist, also opined that the patient was admitted for low back pain. Hence the ailment for which the complainant took treatment in PSG medical college hospital was not a pre-existing illness. As rightly pointed out by the complainant the opposite parties have purposely avoided the claim stating that the illness was pre-existing one. Hence the rejection of the claim made by the complainant is deficiency of service. The rejection of the mediclaim without proper investigation and scrutiny has caused mental agony to the complainant. Hence there is deficiency of service on the part of the opposite parties. Hence the complainant is entitled to get proper and necessary relief from this Forum.

9. In the result, we direct the opposite parties to reimburse a sum of Rs.44,164 towards the expenses incurred by the complainant for the treatment of illness and to pay a sum of Rs.5000/- as compensation for mental agony and cost of Rs.1000 to the complainant within two months from the date of this order failing which the complainant is at liberty to execute this order u/s.25 and 27 of the Consumer Protection Act, 1986.

Pronounced by us in Open Forum on this the 9th day of December, 2009.

CONSUMER COMPLAINT NO:45/2008.

Mrs.S.Reeta Rajah,

No.141, N.G.O. New Colony,

Ayyappa Nagar,

Tirunelveli – 7. …Complainant.

..vs..

The Area Manager,

Customer Service,

I.C.I.C.I. Lombard General Insurance Co., Ltd.,

Chottabai Centre, II and III Floor,

140, Nungambakkam High Road,

Chennai 600 034. … Opposite party.

This complaint came before us for final hearing on 9-12-2009 in the presence of Thiru K.Jeyabalan, Advocate for the complainant and Thiru S.Sekar, Advocate for the opposite party and having stood over till this day for consideration this Forum made the following:
ORDER

This complaint is filed under section 12 and 13 of the Consumer Protection Act 1986.

1) The averments of the complainant in the complaint are briefly as follows: The complainant is the owner of the vehicle Bolero SLX, bering registration No. T.N.72 P.1803. The vehicle is insured with the opposite party and the policy No. is 3001/50340388/00/000. The policy is comprehensive in nature, which includes payment of expenses for vehicle damage in case of risk. The above said vehicle met with an accident on 21-5-2007 in between Panneri and Mysore and got damaged extensively. The complainant informed the opposite party about the same in accordance with the terms and conditions of the policy. The vehicle was towed to Kodai Auto Mobiles Ltd., at Tirunelveli, which is the authorized dealer of the manufacturer. The entrustment of the vehicle to the authorized dealer for repairing works is also in accordance with the terms and conditions of the policy. The opposite party had sent a surveyor to assess the damage on the vehicle. The surveyor submitted his report to the opposite party. The authorized dealer in view of repairing the vehicle, opined to replace the body shell of the vehicle, because of its mangled condition, which is beyond repairable. A letter dated 16-6-2007 was sent to the opposite party in this regard by the authorized dealer and the consent of the opposite party was sought to carry out the repairing work. The authorized dealer also explained the complainant about the trouble and difficulties to repair the mangled body and firmly said that the body in its condition cannot be restored to the original position. The authorized dealer, the Kodai Automobiles sent the quotation statement to the opposite party for its consent to carry out the repairing work. The complainant was handed over with a copy of the quotation detailing the expenses of repairing and replacement of parts, including new body shell, by the authorized dealer. But the astonishment of the complainant the opposite party had sent a letter dated 24-7-2007 to the complainant containing false allegations. The letter says that the complainant had pressurized the authorized agency to replace the body shell. The complainant is nothing to say about the repairing works of the automobiles. The opposite party sent another letter on 18-1-2008 that they have arrived at a sum of Rs.78,369/- on the basis of the surveyor’s report sent by them. The duty and the job of the surveyor is to assess the damage and not to give opinion about the manner of the repairing work, which is usually carried out, on the opinion of the automobiles engineers. The opposite party is always telling that the body shell is to be repaired and not to be replaced, and adopted the tactics of denying the exact expenses. The complainant was deprived of the vehicle for personal use for a long time and suffered a lot at the hands of the opposite party. At last the complainant took the vehicle by paying the expenses to the tune of Rs.2,44,038/- for repairing work carried out on the vehicle, by her own. It is unfair trade practice on the part of the opposite party to deny the complainant it consents for the claim and to settle the legally entitled repairing expenses. It also amounts to deficiency of service on the part of the opposite party. Hence the complainant sent a legal notice on 16-8-2007 containing the above facts and claim for compensation. The complainant filed this complaint to direct the opposite party to pay the legally repairing expenses of Rs.2,44,038/- and to pay Rs.25,000/- towards compensation for mental agony and Rs.500/- towards cost of the proceedings.

2) The averment in the counter of the opposite party is as follows: It is admitted that the complainant had taken a private car package insurance policy for his vehicle No. TN.72 P 1803 from this opposite party and the policy has been issued in accordance with provisions of Motor Vehicles Act. As per instructions Insurance Regulatory and Development Authority surveyor or loss assessor has to be appointed by applying an application to the said authority and the persons who possesses a necessary educational qualifications only would be appointed to the above posts. According to Section 64 UM, No claim in respect of a loss which has occurred exceeding Rs.20,000/- cannot be settled unless the insurance company obtained a report from the surveyor or loss assessor. After the intimation of the accident the opposite party appointed Mr.Mahesh Kumar as surveyor to inspect the vehicle on the spot and he has reported on 22-5-2007 and Mr.R.Sivakumar, surveyor and loss assessor was also appointed to assess the damages caused to the vehicle. On 23-5-2007 he inspected the vehicle at Kodai Automobiles Ltd., wherein the complainant had lodged it for repair works. After inspection on various dates by the surveyor he submitted a report on 7-12-2007 to the opposite party. The surveyor opined to carry out the repairs immediately but whereas the dealer has not carried out the repair since the complainant has requested and pressurized them to replace the body shell into a new one. The damages found in the body shell of the complainant’s vehicle are within the repairable limit and it was clearly communicated to the complainant by the surveyor in writing. The surveyor opined and replied to the repairer that there was no damage to the LHS body, fire wall panel, floor panel and LHS doors and there was no damage to the bonnet & RHS fender also. There was no damage to the glasses (except front) also. The body shell can be repaired with new sheet metal parts serviceable by the manufacturers. The door posts damage also found within the repairable limit, the body shell replacement is not required for this vehicle and proceed the repair job with the new parts available/serviceable by the manufacturers. In spite of the complainant had not allowed the repairer to carry out the repairs in spite of the request from the opposite party. The complainant at her own will and without intimation or consent of this opposite party had replaced the body shell to an amount of Rs.2,44,038/- and is claiming compensation for her vehicle which is not at all fair. As per the report of the surveyor Sivakumar the assessment for parts is Rs.47,604/-, labour charges Rs.45,391/- depreciation Rs.11,839.25, compulsory policy excess Rs.1000/-, salvage Rs.2000/- in net loss comes to Rs.78,155.68. This opposite party has sent his report to another surveyor Mr. R.Natarajan an ‘A’ Grade surveyor for his opinion and he also confirmed the report of Mr.Sivakumar. The repair value estimated as Rs.78,155.68 based on the estimate of repairer that there is no deficiency of service can be attributed on the part of the opposite party. The complainant is entitled to the amount of Rs.78,155.68 and since she had replaced the body shell at her own risk she is not entitled for the claim asked for and there is no deficiency of service on the part of the opposite party and the complaint is liable to be dismissed.

3) The points for considerations are;

1. Whether there is any deficiency of service on the part of the opposite party and if so;

2. To what relief the complainant is entitled to?

4) Points: To prove the case of the complainant proof affidavit was filed and Ex.A1 to Ex.A6 were marked. Ex.A1 is the policy copy and Ex.A2 is the legal notice issued to the opposite party. Ex.A3 is the letter from the opposite party to the complainant and Ex.A4 is the letter from the dealer, Kodai Automobiles Limited, Tirunelveli to the opposite party copy marked to the complainant in which the dealer had categorically stated that the body shell is beyond repairable condition and it has to be replaced with new one and Ex.A5 is the letter from the opposite party to the complainant wherein they have assessed the damage to Rs.78,369/- and Ex.A6 is the quotation statement from the dealer for repairing the damaged vehicle. On the side of the opposite party proof affidavit was filed and Ex.B1 to Ex.B6 were marked. Ex.B1 is the quotation from the dealer, Kodai Automobiles Limited for repairing the vehicle and Ex.B2 is the surveyor report submitted by Sivakumar and Ex.B3 is the letter from the opposite party to the dealer Kodai Automobiles Limited. Ex.B4 is the letter from the opposite party to the complainant and Ex.B5 is the survey report submitted by surveyor Natarajan and Ex.B6 is the surveyor report by the surveyor and loss assessor Mahesh Kumar. It is admitted by the opposite party that the vehicle of the complainant was insured with them and on the date of the accident the insurance was in force.

5) The case of the complainant is that as per the policy conditions he produced the damaged vehicle with the dealer the Kodai Automobiles Limited Tirunelveli for repairing work and dealer opined that body shell cannot repaired and it has to be replaced by a new one. But the opposite party on the assessment and the survey made by the surveyor and loss assessor came to the conclusion that body shell can be repaired and it cannot be replaced by a new one. Their opinion was based on the assessment and survey report filed by their assessors and surveyors. Ex.B3 is the letter from the opposite party to the dealer in which they have stated that the body shell can be repaired with the new sheet metal parts serviceable by the manufacturers. Ex.A4 is the letter sent by the dealer to the opposite party wherein the dealer had categorically stated that the body shell has been damaged and the following operations in the body shell have been fully damaged they are front window glass frame, Roof top panel front and RHS and Rear LHS corner, Front facia panel, Front LHS mudguard, Rear RHS QTR Panel, All door posts bent. Because of the above damages they have opined that the body shell is beyond repairable condition and so it has to be replaced by a new one. Against this only the opposite party had sent a letter dated 27-6-2007 under Ex.B3 in which they have stated that the above parts were not fully damaged and they could be repaired either by new parts or by repairing work. The opposite party had sent this letter to the dealer based on the report submitted by the surveyor and loss assessor. Counsel for the complainant argued that the dealer who undertook the work of repairing is the best person to say where a parts in a damaged vehicle could be replaced fully or can be repaired. The loss assessors or surveyors report need not be basis for settlement of a claim by the insurer in respect of the loss suffered by the insurer. He relied on a citation in 2009 ACJ Page 1729 of Supreme Court of India wherein it has been clearly stated as follows:

“The object of the aforesaid provision is that where the claim in respect of loss required to be paid by the insurer is Rs.20,000/- or more, the loss must first be assessed by an approved surveyor (or loss assessor) before it is admitted for payment or settlement by the insurer. Proviso appended thereto, however, makes it clear that insurer may settle the claim for the loss suffered by insured at any amount or pay to the insured any amount different from the amount assessed by the approved surveyor (or loss assessor). In other words, although the assessment of loss by the approved surveyor is a prerequisite for payment or settlement of claim of Rs.20,000/- or more by insurer, but surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured”.

6) The Counsel for the opposite party argued that the assessment of the damage was based on the surveyors report and loss assessor and the insurance company cannot settled the amount pressing aside the report of the surveyor and so the complainant is not entitled for the claim as asked for. He relied on the citations in 2009 (I) CPR Page 284 (NC) and 2009 (IV) CPR Page 1 (NC) where in the insurance company have offered to settle the claim based on the surveyors report and the National Commission have upheld the above propositions and hence the repudiation of the claim of the complainant over and above Rs.78,369/- is legal and the opposite party have not committed any deficiency of service on their part. The Supreme Court has categorically stated in the judgement relied on by the complainant’s side counsel that the service report is not a sacrosanct one and it is not a conclusive one. The dealer of the vehicle who has undertaken the repairing work is the opt person to say whether a damaged part has to be replaced fully or whether it can be repaired. In this case the dealer who is the authorized agent of the opposite party has categorically stated that the body shell is beyond repairable condition and has to be changed into a new one. There is no proof to say that the complainant had only pressurized the dealer to change the body shell into a new one. Hence the argument of the opposite party that the body shell was under repairable condition and only under the instruction from the complainant the dealer had changed it by a new one is not supported by any material.

7) In the circumstances stated above we hold that the opposite party has committed deficiency of service in not entertaining the entire claim of the complainant and the complainant is entitled for the relief as asked for.

8) In the result, the complaint is allowed and the opposite party is directed to pay Rs.2,44,038/- towards repairing expenses of the vehicle and Rs.25,000/- as compensation for mental agony and Rs.500/- towards costs within two months from the date of this order failing which the complainant is at liberty to execute this order u/s.25 and 27 of the Consumer Protection Act, 1986.

Dictated to the Steno-typist, taken and typed by him and corrected by me and pronounced by us in the Open Forum on this the 21st day of December 2009.

Case No. DF 72/ 2008
Suman Das,

of Silbarihat,

P.O. Sonarpur,

Dist. Jalpaiguri …………….……………. Complainant
Vs

1. The Manager ( Claim Section)

ICICI Lambard,

General Insurance Co. Ltd.,

Geneshyam Building,

3rd Floor, Sevoke Road,

Siliguri.

2. The Regional Manager,

ICICI Lambard,

General Insurance Co. Ltd.,

Regional Office, 3rd Floor, Block-B

J.K. Billennium Centre,

46 D. Chawringhee Road,

Kolkata-700071.

3. The Branch Manager,

ICICI Lambard,

General Insurance Co. Ltd.,

1st Floor, Keshab Road,

Near ICICI Bank,

Opp. Raj Prasad Gate,

P.O. & Dist- Cooch Behar………………………. OPS

The case of the complainant is in brief that the petitioner purchased a vehicle being No. WB-71-3711 with financial assistance from HDFC Bank Ltd. The vehicle was insured with the OPS being policy No 3004/B/0003670 valid from 1-03-2006 to 28.02.2007. the OP No1 is the Branch office of the ICICI lambared General Insurance Co. Ltd. and the OP No 2&3 supplied all the papers and insurance policy to the petitioner.

After purchasing the said vehicle the petitioner has been paying the Govt. Taxes and the vehicle was plying smoothly but on 31.12.2006 at 7-30 hours the vehicle met an accident with another vehicle No Wb-71/ 0314 at 4 No Cooch Behar Dinhata Road, under Kotwali P.S Dist. Cooch Behar and the vehicle of the petitioner was fully damaged.

According to complaint of one MD. Afaj Ali Mia of Dhalubari, P.S Kotwali, Dist. Cooch Behar addressed to the Kotwali P.S. vide P.S. case No 1/07 dated 1.1.07, a case was started by the said P.s. under Section 279, 337 and 338 IPC and the police seized the vehicle of the petitioner . The vehicle was released as per prayer of the petitioner by the competent court of Law.

The petitioner informed to the OPs. in regards of the accident in time and as per advice of OPS the petitioner placed the vehicle to the Agrahari Automobiles, Cooch behar for repairing. Thereafter the petitioner submitted the claim form to OP No1 properly along with relevant papers as required by OPS. On 4.2.2008 the OP NO.1 sent a surveyor who enquired the matter and submitted report to the office of OPS mentioning that 55 nos. of different type of parts were fully damaged.

After repairing the vehicle, the Agrahari Automobiles handed over the bills amounting to Rs.23975/- to the petitioner who in turn submitted the same to the office of OPs for payment.

The Complainant stated that the OPs are unnecessary trying to harass him non paying the insurance claim. The petitioner sent a lawyer Notice to the OP No-1 on 9.4.08 but till date the OP did not pay the insurance claim.

The petitioner filed the present complaint against the OPS praying for relief as mentioned in the complaint.

The case contested by OP No.1,2 and 3 by filing w/v and affidavit contending inter alia that the case is not maintainable in law and facts.

The Ld. Agent of OPs stated in w/v that the claim form was filed by the petitioner on 20.12.2007 which is about one year after the date of the accident of the vehicle.

As per the charge sheet filed by the police the vehicle was carrying 11( eleven) passengers and driver at the time of accident which is clear violation of the provisions of the Motor Vehicles Act, 1988 and also the policy.

It is further submitted that the Driving Licence of the person who was driving the vehicle at the relevant time of accident was not valid and effective for the particular type of vehicle.

The OPS stated that they are not liable to pay compensation to the insured/ petitioner for the loss incurred by him as after the written statement was lodged on 01.01.07, the insured petitioner released the same vehicle on 24.06.07 after about 6 months from the date of seizure .

The Opposite Party further submits that the petitioner was himself sleeping over his right and had intimated this Insurance Company after one year of the happening of the accident and the Insurance Co. was prompt enough to appoint investigators and surveyors and after assessing the reports submitted by them the insurance co. repudiated the claim on the ground that the terms and conditions have not been complied with the insured and hence the Complt. is not entitled to receive any compensation from the insurer and there has been no deficiency of service on part of this answering opposite party insurance company.

The Ld. Agent of OPs have prayed for dismissal of the case
Points for determination
No(1) Whether the O.P.S caused deficiency in service against the Complt. by repudiating the insurance claim for repairing expenses of the Cuiser Jeep No WB-71/3711 ?
No (2) Whether the Complt. is entitled to get the relief, as prayed for ?
Decision with reasons

Perused the evidences, affidavits, documents adduced by the both parties and the decisions referred on behalf of the parties.

It is true the vehicle of the complt. met an accident on 31.12.2006 with another vehicle at 4 No Cooch Behar Dinhata Road. The opposite party had not filed any documentary evidence to substantiate their allegation that there were more number of passengers in the vehicle violating the policy conditions . Their contention that the Driver of the vehicle was not having valid driving licence is also not supported by any documentary evidence. We have gone through the FIR/ charge sheet which states that 11 ( eleven) passengers were traveling in the Cuiser Jeep No WB-71-3711. We are of the view that the cause of accident was nothing to do with eleven passengers in the vehicle. The accident was informed to the police by a local resident. The surveyor was appointed by the OPS who submitted report and given consent to repair the vehicle. It is contended that surveyor has given approval for expenses . The claim was preferred by the complt. which was repudiated by the Insurance company of the OPS for submission of insurance claim after one year and such delay is likely not to be considered as time barred.

As a reference the case may be referred of Andhra Pradesh State Consumer Disputes Redressal Commission, Hydrabad of 11(2008) CPJ 221 as cited by the complt.

We perused the papers and gave our anxious thought to the arguments advanced by both the parties. On perusal of papers it reveals that the OPS did not adduce any sort of statements recorded by the police as evidence. Therefore, we see no reason for the Insurance Company in not settling the claim . Accordingly deficiency in services of the OPS. in terms of Sec 2 (1) (g) of the C.P. Act, 1986 also stands duly proved.

Considering the materials on record, we hold our opinion that the OPS caused deficiency in service by not rendering proper services to the Complt.

Point No 2: It is decided that the OPS caused deficiency in service against the complt. by repudiating the claim and therefore the complt. is entitled to get relief and compensation .
Hence
Ordered

That the complaint dt. 08.12.2008 of the Complt. is allowed on contest with cost of Rs.1000/-.

The OPS are directed to pay the repairing cost of the vehicle amounting to Rs.23975/- to the complt. against insurance claim and also pay compensation of Rs. 15,000/- for causing mental pain and agony within 2(two) months from this date of order and in default a penal interest @ 10% p.a shall be levied upon the unpaid amount till realization.

consumer case(CC) No. CC/08/22
Sunita Kochar
...........Appellant(s)
Vs.

ICICI Lombard General Insurance Co. Ltd.
...........Respondent(s)


BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, Kolkata-700087.
CDF/Unit-I/Case No. 22 / 2008

1) Mrs. Sunita Kochar,

1D, Amrapali, 35/7, Padmapukur Road,

Kolkata-700020. ---------- Complainant

---Verses---

1) ICICI Lombard General Insurance Co. Ltd.,

15, Park Street, Kolkata-700016. ---------- Opposite Party



Present : Sri S. K. Majumdar, President.

Sri T.K. Bhattachatya, Member



Order No. 1 9 Dated 0 4 / 0 1 / 2 0 1 0 .



The instant case arises out of the petition of complaint filed on 29.1.08 by the complainant Mrs. Sunita Kochar of 1D, Amrapali, 35/7, Padmapukur Road, Kolkata-20 u/s 12 of C.P. Act, 1986 against the o.p. ICICI Lombard General Insurance Co. Ltd., Appejay House, 7th floor, Block-B, 15, Park Street, Kolkata-16 with a prayer to (a) recover the cost of repairing of the car amounting to Rs.21,900/- paid by the complainant, (b) pay penalty of Rs.10,000/-, (c) pay litigation cost and such other or order orders as the Forum thinks fit and proper.

Specific case is that the complainant had taken an insurance policy under no.3001/51561347/00/000 from the o.p. in respect of the complainant’s private car bearing registration no. WB 24C 4176, a CORSA SAIL (1.4) made by General Motors, valued at Rs.2,85,670/- with the following coverage –

(a) Loss or damage to the vehicle,

(b) Liability to thirty parties,

(c) Personal accident cover to owner-driver,

and paid a premium of Rs.9960/- for the period from1.4.07 to 31.3.08 (annex-P-1, P-2).

The said car had been damaged while the same was parked in the parking place in the residence of the complainant consequent to its submerging in flood water due to heavy shower on and from 22.9.07 to 23.9.07 and the complainant informed the o.p. through their helpline on 26.9.07 who registered the claim of such damage of the complainant under complain no. MOT000605102 and as per their advice the said car was moved to M/s. India Automobile, 2, Justice Chandra Madhab Road, Kolkata-20 on 8.9.07 (annex-P-6).

The said car was inspected by the officer of the o.p. on 9.10.07 and 10.10.07 and the car was finally delivered by the aforesaid repairing centre on 17.10.07 after complete repairing of the said car on payment of Rs.21,900/- by the complainant (annex-P-3 & 4).

In response to insurance claim no. MOT000605102 the o.p. repudiated the claim of he complainant in their letter dt.15.10.07 on the ground that “the vehicle was already repaired before the initial survey, hence the insurer could not get any opportunity to assess the loss. The claim is thus not admissible within the terms and conditions of the policy”. In view of the above referred; the o.p. close the claim as “No Claim” and because of this letter of the o.p. dt.15.10.07 the cause of action starts (annex-P-5).

Even on getting the letter dt.31.10.07 of advocate on behalf of the complainant, the o.p. did not give any reply to his letter.

Hence, the instant case has been filed by the complainant against the o.p. u/s 12 of C.P. Act, 1986.



Decision with reasons :-

The said car was insured under policy no.3001/51561347/00/000 which was submerged under the flood water due to heavy shower on 22.9.07 and 23.9.07.

The complainant had to pay Rs.21,900/- in cash to M/s. India Auto Mobile, 2, Justice Chandra Madhav Road, Kolkata-20 for their repair of the damages of the said car (annex-P-3 & P-4), but the reimbursement of which was repudiated by the o.p. in their letter dt.15.10.07 (annex-P-5).

The o.p. claimed that the claim bearing no.MOT000605102 was lodged by the complainant on 8.10.07 at 15-31 hrs. by one Rabi Kochar who claimed to be the relative of the complainant and not on 26.9.07 as stated by the petitioner.

It is further more stated by the o.p. that while reporting the claim, the said Mr. Rabi Kochar purportedly and malafidely intimated the date of loss as on 3.10.07 which had also been registered at the call centre of the o.p. By reporting the aforesaid false and misleading story of loss the complainant violated the terms and conditions of the concerned motor policy and therefore, the o.p. is not liable to pay any claim to the complainant in respect of said alleged loss. Though the o.p. stated that they annexed the copy of the said claim intimation sheet and copy of repudiation letters, but those were not found with o.p’s w/v.

The complainant informed the o.p. through the o.p’s helpline on 26.9.07 who registered her claim of such damage under complain no.MOT000605102 and as per their advice the said car was moved to M/s India Automobile on 8.9.07 (annex-P-6).

But the o.p. did not adduce any evidence to prove that the above averment of the complainant is false.

It is worth mentioning that the insurance company should send the surveyor on receipt of the first information, i.e. on 26.9.07 but the o.p. did not do that. They waited for the claim to be lodged by the complainant, which is totally unethical

The averment of the o.p. that on receipt of the claim intimation, the surveyor was appointed on 8.10.07 to survey the nature of damage and the quantum of loss. The surveyor on the very next day, i.e. on 9.10.07 duly inspected the said vehicle at the garage where the said car was lying as per the information of said Rabi Kocher while lodging the claim (annex-w/v of o.p).

But the surveyor should have been appointed immediately after receipt of damages of the said car on 26.9.07, which was not done by the o.p. for the reasons best known to them.

It is to be noted that if the surveyor could have come earlier on receipt of information of damage of the car on 22.9.07 to 23.9.07 due to heavy shower, the o.p. could not raise the question of surveyor’s appearance on 9.10.07 but the surveyor came late for which they could not have assessed the quantum of loss (annex-w/v of o.p) and it is not the fault of the complainant.

But on receive of the letter of advocate on behalf of the said complainant dt.31.10.07, the o.p. did not make any reply which indicates that they had nothing to say against the petition of complaint.

Hence, ordered,

That the o.p. is directed to pay (i) Rs.21,900/- (Rupees twenty one thousand nine hundred) only to the complainant for their deficiency in service, (ii) a penalty of Rs.10,000/- (Rupees ten thousand) only for disservice and (iii) litigation cost of Rs.5000/- (Rupees five thousand) only within thirty days from the date of communication of this order to the o.p. and in default, the aforesaid amount will carry an interest @ 10% p.a. till the recovery of the aforesaid amounts in full to be paid by the o.p. to the complainant.

Fees paid are correct.

The case is thus disposed of from this Forum.

Supply certified copy of this order to the parties on receipt of prescribed fees.

Consumer Complaint No

1218 of 2009

Date of Institution


27.08.2009

Date of Decision

15.01.2010

Ravi Verma s/o Sh. Mangat Ram Verma, r/o #426/1, Sector 40-A, Chandigarh previously r/o #1240, Sector–11, Panchkula.

…..Complainant
V E R S U S

1] The Managing Director, ICICI Lombard General Insurance Company Ltd., Regd. Office ICICI Bank Towers, Bandra-Kurla Complex, Mumbai - 400051

2] The In-Charge, ICICI General Insurance Company Ltd., SCO 24-25, 1st Floor, Sector 8-C, Madhya Marg, Chandigarh.

3] The In-Charge, ICICI Lombard General Insurance Company Ltd. Quiet Office No.10, Sector 40-B, Chandigarh

……Opposite Parties

CORAM: SH.JAGROOP SINGH MAHAL PRESIDENT

DR.(MRS) MADHU BEHL MEMBER

Argued by: None for complainant.

Sh. Sandeep Suri, Adv. for OPs

PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

Succinctly put, the complainant got his car insured from the office of the OP-2 for the period 29.01.2008 to 28.01.2009. On 12.12.2008, the said car met with an accident at Dharampur, where it was badly damaged. The complainant accordingly informed the OP regarding the accident of the said car. A surveyor was sent by the OP-2 and the estimate of the repairs was assessed to the tune of Rs.3,40,000/-. The complainant visited the office of the OP-2 several times, so that the matter be processed further for claim but was of no use at all. On 7.01.09, the complainant received a letter from the office of OP-3 in which it was mentioned that “the claim of the complainant cannot be honoured as the said car was used for Hire & Reward”. The complainant immediately rushed to the office of the OP-2 & OP-3 and clarified that the said car was used for personal purposes only but the OPs had rejected the claim of the complainant on the pretext that the car was used for Hire & Reward. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2. Notice was served to the OPs. In their written reply the OPs admitted the factual matrix of the case. The OPs submitted that the policy taken by the complainant was only for the purposes of private car, whereas the said car was used for commercial purposes as the car was attached on hire with BSNL Sector 18, Chandigarh and that is why, the claim of the complainant had been rightly repudiated. Denying all the material allegations of the complainant, the OPs pleaded that there has been no deficiency in service or unfair trade practice on their part and prayed for dismissal of the complaint.

3. The Parties led evidence in support of their contentions.

4. We have heard the learned counsel for the OPs and have also perused the record.

5. The claim was repudiated by the OPs on the ground that the vehicle was used for hire and reward as mentioned in the letter (Annexure C-6) issued by the OPs to complainant. The learned counsel for the OPs argued that the complainant has taken a loan for the purchase of the vehicle and the monthly instalment of Rs.6,750/- being paid by the complainant is much more than the approximate salary of the complainant which is about Rs.5,000/- per month. It is also contended that when the car met with an accident on 11.12.2008 it had already been driven for 40000 kms. which comes to approximately 141 kms. per day. Their contention is that the vehicle has been attached on hire with BSNL, Sector 18, Chandigarh and, therefore, the OPs are not liable to make the payment of compensation because the vehicle was being used as commercial, contrary to the policy of insurance which was taken for a private vehicle. All these contentions have been denied by the complainant. The OPs have not collected any such document to suggest if the car has been attached on hire with BSNL authorities. In order to prove this allegation it was necessary to obtain information from the BSNL and to produce the affidavit of the concerned person which they have failed to do. The mere fact that the vehicle had been driven for about 40000 kms. is not proved from any document. The learned counsel for the OPs has argued that there is a statement of the complainant/insured attached with the investigation report in which he admitted this fact. A perusal of the record, however, shows that the said statement is not signed by the complainant but has been signed by some “D. Verma” who is not shown to be having any connection with the complainant. The signatures of the complainant appended on the complaint and affidavit do not resemble with the signatures appearing on this statement. The OPs have submitted affidavit of Ravinder Dhull, Manager, ICICI Lombard General Insurance Company Ltd. but in the said affidavit or in the reply there is no mention if the investigator ever recorded the statement of the complainant or if the complainant ever admitted any such facts. Even the affidavit of the investigator has not been produced and, therefore, no such assertion can be accepted. It is, therefore, clear that the statement now being attached with the report of the investigator is a procured one having no authenticity and cannot be considered to decide these facts. Even the affidavit of the investigator has not been produced and, therefore, no such assertion can be accepted. In order to prove that the car was attached with the BSNL on hire the OPs could produce evidence from the said authority but the same has not been produced. When direct evidence is available on a point the same should be adduced instead of hearsay or circumstantial evidence which would not be admissible in evidence. We are, therefore, of the opinion that the OPs have failed to prove if the car was being used for hire and reward and the claim submitted by the complainant could not be repudiated on this ground.

6. The complainant in his complaint has referred to Annexure C-5 which is the estimate of repair to be Rs.3,47,576.76. When the investigator was appointed he submitted his report showing that only Rs.78,311.46 are payable to the complainant. The complainant has not produced evidence to suggest that this report of the surveyor is biased or contrary to facts and should not be accepted. Under these circumstances the report of the surveyor becomes binding on the parties in view of which the complainant is entitled to Rs.78,311.46.

7. In view of the above discussion we are of the opinion that the present complaint should succeed partly. The same is accordingly allowed. The OPs are directed to pay to the complainant a sum of Rs.78,311/- alongwith Rs.2,200/- as costs of litigation within thirty days from the date of receipt of copy of this order failing which they would be liable to pay the same alongwith penal interest @ 12% per annum since 5.2.2009 (one month after the surveyor’s report) 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.

C.C. No.781/2009

Between:-
1. A.Anand Babu,

S/o.Late Sri Venkateshwarlu,

Aged about 31 years

2. A.Suresh Babu,

S/o.Late Sri Venkateshwarlu,

Aged about 36 years

3. Smt. B.Sudha Rani,

W/o. B.Rajshekar

Aged about 33 years

4. Smt. A.Vijayalakshmi,

W/o. Late Sri Venkateshwarlu,

Aged about 52 years.

All residents of H.No.263, EWSH,

New Santoshnagar, Saidabad, Hyderabad. ….Complainants
And

1. Yashoda Hospital,

Malakpet, Hyderabad,

Rep. by its Chairman and Managing Director.

2. Dr. B.V.G. Swamy,

Working with Yashoda Hospital,

Malakpet, Hyderabad.

3. ICICI Lombard,

No.3-6-365/A/B,

Sama Towers, Opp. Remedy Hospital,

Liberty X-Roads, Himayathnagar,

Hyderabad – 500029. ... Opposite Parties

This case coming on this day for final hearing before this Forum in the presence of Sri N.Harinath Reddy, Advocate for the complainant and Sri Nivedita Reddy, advocate for opposite party No.1&2 and Sri D.Jyothi Rao, advocate for opposite party No.3 and having stood over till this date for consideration this Forum pronounced the following:-

O R D E R

(per Hon’ble President, Sri M.Vijaya Bhaskara Reddy on behalf of bench)


1. This is a Complaint filed by the Complainant under section 12 of C.P. Act, 1986, seeking a direction against the opposite parties 1 & 2 to pay jointly and severally a sum of Rs.15,00,000/- towards compensation for Medical negligence meted out to the petitioners, to pay Rs.2,00,000/- towards damages and Rs.50,000/- towards costs.

2. The case of the complainants as set out in the complaint in brief is that the first petitioner is the youngest son of Late Sri Venkateswarlu who here in after referred to as ‘deceased’, who was admitted in opposite party No.1 Hospital on 02-07-2007 with breathing problem and was treated by opposite party No.2. He was prescribed with Medicines and injections till 04-07-2007. He was not administered with any medicines and no investigations were conducted between 03-07-2007 and 11-07-2007. The patient was kept in acute medical care unit for inflating the bill as the deceased was covered with the insurance policy taken by the second complainant with the 3rd opposite party. There was no improvement in the condition of the patient. When questioned, opposite party No.2 assured that due care was being taken and that there was nothing to worry. The petitioners asked the opposite parties 1 & 2 to discharge the diseased so, that he could not be admitted in NIMS. The complainants showed the case records to the family doctor. When the deceased was intended to be admitted in NIMS on 27-07-2007, he died on the previous night. When the complainants asked the Hospital authorities regarding their negligence, they called the police. There was clear negligence on the part of the opposite parties 1 & 2. Though the patient died on 26-07-2007 the medical records disclose that he was administered medicines even on 27th also.

3. Opposite parties 1 & 2 gave a false complaint to the police to pressurize the complainants not to venture into consumer litigation. Hence the complaint.

4. Opposite parties 1 & 2 filed the written version [counter]. They pleaded that the deceased was a known case of corpulmonale with congestive cardiac, renal failure, coronary Heart diseases with recurrent pulmonary edema, Type-2 DM, diabetic foot and hyper tension and was admitted with acute exacerbation of chronic obstructive airway diseases with severe SOB, Cough, with Sputum and fever. He had previous history of Hospitalization for about 5 to 6 times during the past 5 years for recurrent AE, COPD, CAD with recurrent pulmonary edema, acute on Chronic renal failure, DM foot with Sepsis and bilateral, pleural effusion. After the admission, all relevant investigations were carried out and appropriate medical treatment was started. He was on regular monitoring for all the diseases including blood sugar etc. At the time of admission he was critically ill and after reasonable stabilization he was shifted to the ward. Due to persistent infection inspite of the medical management, his condition deteriorated with acute renal failure and there was fresh episode of pulmonary edema secondary to LAF and volume overload because of renal failure on 11-07-2007, secondary to sepsis. The patient was re shifted to the acute medical care once again. As the patient was suffering from severe co morbid condition, he was given medicines. The attendants of the patients were regularly given counseling regarding the critical condition and guarded prognosis. Thus, inspite of their best efforts, the patient died on 26-07-2007.

5. It is further pleaded that the copies of the medical record now filed by the complainants were not furnished by opposite party No. 1. The complainants 1 & 2 created a scene on the date of death of the patient, abused the doctors and the security personnel, threatened to kill them, damaged the glass doors of the hospital and forcibly took away the entire case sheet of the patient. Opposite party No.1 gave a police complaint and the police registered it as a case in C.C.No.290/2008 on the file of VIII CMM. They tampered with the case sheet and to cover up their illegal activities they filed this complaint.

6. It is denied that the patient was not given any treatment from 04-07-2007 to 11-07-2007. The complainants have not filed the material portion of the case sheet. They filed this case as a counter blast to the complaint given to the police. There was no negligence on their part and the claim of the complainants is imaginary. Finally, opposite parties 1 & 2 requested this Forum for dismissal of the complaint with exemplary costs.

7. Opposite party No.3 filed separate counter and admitted the policy taken by the second complainant covering even the deceased also. It is also admitted that opposite party No.1 took approval from opposite party No.3 for rendering the required medical treatment and the entire cost incurred for the treatment was also approved. There was no deficiency in service on their part. Opposite party No.3 is not a necessary party as no deficiency of service has been attributed against them.

8. The points that arise for consideration are:-

I. Whether there is any deficiency in service and negligence on the part of the Opposite parties 1 & 2? and if so, whether the complainants are entitled for compensation? and if so, to what amount?

II. Whether opposite party No.3 is a necessary party?

III. To what relief?

9. Point No.I:- To substantiate their case, the complainants have chosen to file the evidence affidavit of the first complainant and relied on Exs.A1 and A2. He was cross examined on commission. On the other hand opposite parties 1 & 2 have chosen to file the evidence affidavit of opposite party No.2 doctor B.V.G. Swamy who was cross examined on commission. They relied on Exs.B1 and B2. Opposite party No.3 also filed the evidence affidavit but did not rely on any documents. All the parties filed the written arguments and also advanced oral arguments.

Practically, the complainants have asked for the compensation against opposite parties 1 & 2 only and they impleaded opposite party No.3 Insurance Company as a formal party.

10. There is no dispute that one Venkateswarlu (the deceased) was admitted in opposite party No. 1 Hospital on 02-07-2007 with certain health complications and died on 26-07-2007. The main grievances of the complainants are that the opposite parties 1 & 2 have not given proper medicines or treatment that they unnecessarily shifted him from one ward to the other and exhibited some show of treatment to extract money and even went to the extent of recording as if they administered medicines on 27-07-2007 i.e., even after the death of the deceased. It is also the case of the complainants that after admission of the deceased in opposite party No.1 hospital on 02-07-2007 they gave treatment and medicines only up to 04-07-2007 but did not conduct any tests till 11-07-2007 except shifting the deceased from acute medical care unit-2 to room No.557, from there to from room No.220 and from there to acute medical care one. The contention of the complainants is that the opposite party Nos.1&2 did so, just to inflate the bill. It is argued that there was no improvement in the condition of the deceased. It is also pleaded that opposite party No.2 furnished the copies of records as on 24-07-2007 which were shown to their family doctor who advised for admitting the deceased in NIMS. Ofcourse, the complainant in his evidence stated that he showed the medical records to a doctor of Apollo Hospital who stated that the operation was failure.

11. It is well settled law that it is not suffice just to level mere allegations of negligence against the doctors but there should be enough evidence from an expert doctor to the effect that there was negligence on the part of the opposite party doctor in treating the patient. The burden is also on the complainants to prove that the patient was not treated properly. In the instant case, the complainants have not chosen to examine any expert doctor to substantiate that there was negligence on the part of the doctors of opposite party No.1 and that proper treatment was no given to the deceased. After all, the first complainant who filed his evidence affidavit is not a medical person or an expert to say that there was negligence on the part of opposite parties 1 & 2. He could not even name the doctor who later told him that the patient was not treated properly. We cannot appreciate the contention of the complainants that opposite parties 1 & 2 failed to come out with the details of the treatment given to the deceased. Interestingly, opposite parties 1 & 2 gave a complaint against some of the complainants as seen from Ex.B1 FIR for stealthily taking away the case sheet and damaging the furniture etc., of opposite party No.1 hospital. The police registered a case and filed the charge sheet under Ex.B2. The complainant had alleged that opposite party No.1 hospital did not even furnish the case sheet and according to the opposite parties 1 & 2 the complainants high handedly taken away the records. As observed by us earlier, the complainants themselves pleaded that on 24-07-2007 opposite parties had furnished certain medical record, could be Ex.A1, but it is contended on behalf of the opposite parties that at some place in Ex.A1, the complainants fabricated the entries. Infact Ex.A1 contains the details of the investigations done, the medicines used and the treatment given. As already noted, the complainants could not examine any expert to prove that there was negligence on the part of the opposite parties 1 & 2 in treating the patient. Even otherwise, simply because, the doctors have not conducted any tests or prescribed medicines for few days to the patient while in Hospital, it does not mean that there was no proper treatment. Similarly, simply because the patient was shifted from one intensive care unit to the other or to the ward, it does not mean that such acts should be treated as acts of negligence. Rw1 clearly stated that as the original case sheet was taken away by the complainants forcibly, he could not exactly say as to the exact medicines prescribed and other details. However, by perusing Ex.A1 he stated that the deceased was a known case of COPD Corpulmonale with congestive cardiac failure, renal failure, coronary heart diseases with recurrent pulmonary edema type-2 DM, Diabetic foot and hyper tension and was admitted with acute exacerbation of chronic obstructive Air way diseases with severe SOB, cough with sputum and fever. He also stated, which the first complainant also admitted in his cross examination that the patient had previous history of hospitalization for about 5 to 6 times during the previous 5 years for the selfsame health complications. The doctor asserted that they monitored the patient clinically blood sugars diabetes and pulse Oximeter monitoring for respiratory failure etc., He denied that there was no treatment from 04-07-2007 to 11-07-2007. He further narrated in detail as to what was the treatment and the tests conducted during the hospitalization of the patient. The complainants could not deny the same and could not produce any evidence to show that there was medical negligence on the part of the opposite parties 1 & 2. Unfortunately, the patient could not recover from his multy ailments. As rightly argued on behalf of the opposite parties, when Ex.A1 was furnished to the complainants on 24-07-2007, there could not be any endorsements at pages 27 to 47 dated 25-07-2007 and 26-07-2007. Pw1 could not state as to who put the serial numbers in Ex.A1 that were denied by opposite party No.2 doctor. Infact Pw1 himself admitted that the doctors informed about the failure of the operation and poor prognosis. After all, the doctors are there to perform their medical duties and they could not guarantee the success is treatment all the times. There is no convincing material to support the allegations of the complainants that the doctors could not make their efforts. The deceased was a chronic patient with several complications and the complainants miserably failed to prove that the negligence on the part of opposite parties 1 & 2 resulted in the death of the patient. Similarly, the complainants also failed to prove that there was deficiency in service on the part of the opposite parties 1 & 2. There are absolutely no merits in this case.

12. Point No.II:- Opposite party No.3 is an unnecessary party as the complainants themselves have not attributed any role of them in this case.

13. Point No.III:- In the result, the complaint is dismissed. There is no order as to costs.

C.C. No.37/2008

Between:
1. Godala Vinoda, w/o.late Ramachandra Reddy, age; 40 years,

occu: household.

2. Godala Abhilash Reddy, s/o.late Ramachandra Reddy, age: 21

years, occu: Student.

3. Godala Avanthi, D/o.late Ramachandra Reddy, Age: 19 years,

occu: House hold.

All the complainant Nos.1 to 3 are the permanent residents of

Seethampeta village of Garla Mandal of Khammam District.

…Complainants

and

1. The ICICI Lombard General Insurance Company Ltd., rep. By

its Manager/authorized signatory, r/o.House No.6-3-3-2/1,

3rd/4th floor, OSMAN Plaza, Road No.1, Banjara Hills,

Hyderabad- 500 034.

2. The General Manager, The Khammam District Co-operative

Central Bank Ltd., Khammam, r/o.Mahathma Gandhi Road, Post

Box No.61, Khammam town, Khammam District 507 003.

3. The Secretary, The District Co-operative Central Bank Ltd.,

Khammam Rural Bank Branch, Garla, r/o.Post and Mandal

Garla, Khammam District.

…Opposite parties.

This C.C. is coming on before us for hearing in the presence of Sri.N.Chenna Keshava Rao, Advocate for complainants and of Sri.G.Seetha Rama Rao, Advocate for opposite party No.1 and of Sri.A.Koteswara Rao, Advocate for opposite party Nos.2 and 3; upon perusing the material papers on record; upon hearing arguments, and having stood over for consideration, this Forum passed the following:-

ORDER

(Per Smt.V.Vijaya Rekha, Member)
1. This complaint is filed under section 12(1) of the Consumer Protection Act, 1986. The brief facts as set out in the complaint are that;

The husband of the complainant No.1 and the father of complainants No.2 and 3 had joined as member in DCCB, Garla Branch, Khammam District and obtained insurance policy from opposite party No.1 on 29-9-2006 for one year and on 9-5-2007 the husband of the complainant No.1 died due to electrocution at about 20.30 hours while contacting the GI wire at his house and a police case was registered u/s.304 –A of I.P.C. against the Junior Lineman, A.P.N.P.D.C.L., Garla under Cr.No.46/2007 and C.C.No.514/2007 and intimated the same to the opposite party No.2. The opposite party No.1 replied that the claim is not payable due to violation of Insurance Act. The complainants further submitted that the deceased/policy holder was accidentally contacted the wire and died due to electrocution. As such, there is no violation of insurance rules and the complainants 1 to 3 being the legal heirs, were issued legal notice on 18-2-2008 even though, the opposite parties did not respond to pay the insured amount. As such, they approached the Forum with a prayer to direct the opposite parties 1 to 3 to pay an amount of Rs.50,000/- towards insurance amount together with interest and costs.

2. On behalf of the complainants No.1 to 3, complainant No.1 filed affidavit and also filed the following documents.

i) Certified copy of FIR, dt.10-5-2007

ii) Xerox copy of charge sheet

iii) Certified copies of 161 Cr.P.C. statements.

iv) certified copy of PME report

v) certified copy of panchanama

vi) Repudiation Letter, dt.26-9-2007.

vii) Xerox copy of death certificate

viii) office copy of legal notice, dt.18-2-2008 along with courier receipts

ix) Receipt, dt.29-9-2006 issued by opposite party No.2.

3. On being noticed, the opposite parties made their appearance and filed counters by denying the averments made in the complaint.

4. In the counter, the opposite party No.1 admitted the issuance of personal accident policy in the name of the deceased on 29-9-2006 for one year, and also admitted that they received claim documents, after verification of such documents and investigation report, it clearly comes out that the deceased/insured had touched the electric wire without using safety measures and as per exclusion of the policy, “the payment of compensation in respect of death… when the insured is self exposing to needless perils (except in an attempt to save human life)”. As such there is no liability on the part of them and prayed to dismiss the complaint.

5. Along with a petition, the opposite party No.1 filed repudiation letter, addressed by the opposite party No.1 to the opposite party No.2.

6. In the counter, the opposite party No.2 and 3 admitted that they issued membership to the husband of the complainant No.1 in PACS, Garla Branch and the opposite party No.1 had issued JPA policy by collecting premium through them. As such the insurance company is only responsible to pay the policy amount and prayed to dismiss the complaint against them.

7. Both the parties filed written arguments.

8. In view of the above submissions, the point that arose for consideration is, whether the complainant is entitled to any relief as prayed for?

POINT:

9. It is an admitted fact that the opposite party No.1 had issued JPA policy in the name of husband of the complainant for a period of one year and the liability of Rs.50,000/- in the event of accidental death of the insured and denied the other averments that the complainants are entitled the insured amount and as per the counter averments, after verification of claim documents and investigation report, it was revealed that the deceased touched the electric wires without using safety measures and also contended that, according to the exclusions of the policy, the complainants are not entitled the policy amount as the deceased was self exposed to needless perils. As such there is no liability on the part of them. But it is the case of the complainants that on 9-5-2007 the deceased/policy holder accidentally died due to electrocution while contacting the GI wire, using for the purpose of drying clothes. As such the opposite parties are liable to pay the insured amount and according to the charge sheet, furnished by the complainants, the deceased unfortunately touched the GI wire, the extra wire touched with slab, as a result, he received electric shock and died with electrocution and as per the final report and 161 Cr.P.C. statements clearly speaks that, one week prior to the death of the deceased, the walls and slabs of about 20 houses in the village getting electric supply and the villagers reported the same to the officials concerned, but did not rectify. As such, it is clear that the deceased died accidentally due to the negligence of electricity authorities, as such the point raised by the opposite party No.1 with regard to the death of deceased is not tenable and the point is answered accordingly in favour of the complainant.

10. In the result, the complaint is allowed, directing the opposite party No.1 to pay an amount of Rs.50,000/- towards insurance amount under JPA policy to the complainants together with interest at the rate of 9% P.A. from the date of repudiation i.e. from 26-9-2007 till the date of realization. Out of the compensation amount, the complainant No.1 is entitled Rs.20,000/- and the complainants No.2 and 3 are entitled for Rs.15,000/- each. The complainant No.1 is entitled the interest at 9% P.A. on Rs.50,000/- and costs of Rs.1,000/-. The complaint against opposite parties No.2 and 3 is dismissed.

Typed to my dictation, Corrected and pronounced by us, in this Forum on this 28th day of January, 2010

CC.No:49/2009

BETWEEN:

Melam Vimala Devi,

W/o late Srinivasa Rao,

Aged about 28 years, Hindu,

Housewife, R/o Lingamgunta (v)

Maddipadu Mandal,

Prakasam District. ... Complainant.

Vs.

1. The Regional Manager,

ICICI Lombard General Insurance Co.Ltd.,

Anjaneya Towers,

D.No. 39-1082(A), 5th Floor,

Labbipet, Venkateswarapuram,

M.G.Road, Vijayawada.
2. The Branch Manager,

ICICI Lombard General Insurance Co. Ltd.,

Kurnool Road, Near Chunduri Petrol Bunk,

Ongole. …Opposite parties.



COUNSEL FOR COMPLAINANT: SRI. S.V. MALLIKHARJUNA RAO,

ADVOCATE, ONGOLE.
COUNSEL FOR OPPOSITE PARTY NO.1: EX-PARTE.
COUNSEL FOR OPPOSITE PARTY NO.2: SRI S. RAGHUNADHA REDDY,

ADVOCATE, ONGOLE.

This complaint is coming on 12.01.2010 for final hearing before us and having stood over this day for consideration this Forum delivered the following:



PER SRI. A PRABHAKAR GUPTA: ORDER:



1. This is a complaint filed by the complainant under Section 12 of Consumer Protection Act, 1986 against the opposite parties.



2. The averments in the complaint are as follows: One M. Srinivasa Rao who is the husband of complainant is the policy holder, issued by the 2nd opposite party bearing No.4005/0009017/0369229, dated 29.05.2008, which is having the nature of group insurance policy. The said policy is inforce from 29.05.2008 to 28.05.2009 for Rs.1,00,000/-. Subsequently, the said M. Srinivasa Rao died on 25.12.2008 due to accident and the same was registered as Crime No.450/2008 of Ongole Taluk Police Station. After his death the present complainant submitted her claim form along with all concerned documents to the opposite party for claim amount. The complainant issued a legal notice on 28.02.2009 and received by the opposite parties on 02.03.2009. Even inspite of legal notice the opposite parties not settled the claim amount and hence the present complaint.


3. In reply to the complaint, O.P.2 filed his counter admitting the fact of policy issuance and denying the submission of intimation, documents and also legal notice. Since, the complainant failed to intimate the fact of death within 90 days as per the terms of the policy, O.P.2 prays this fora to dismiss the complaint.



4. The OP.1 became ex-parte.



5. On behalf of the complainant Exs.A1 to Ex.A7 were marked. The Ex.A1 is the G.P.A Policy bearing No. 4005/0009017/0369229, dated 29.05.2008 issued by 2nd opposite party. Ex.A2 is the Office copy of legal notices dated 28.02.2009 along with postal receipts. Ex.A3 is the Two served acknowledgements. Ex.A4 is the Xerox copy of FIR in Cr.No.450/2008 of Ongole Taluk P.S. Ex.A5 is the Xerox copy of Inquest certificate dated 26.12.2008. Ex.A6 is the Post Mortem certificate dated 26.12.2008. Ex.A7 is the Letter dated 21.03.2009.



6. On behalf of the 2nd opposite party filed Ex.B1 is the Conditions of Group Personal Accident Insurance Policy for Rs.1,00,000/- per person, policy period from 01.04.2006 to 31.03.2008.



7. The point for consideration is whether the complainant is entitled for the reliefs of the complaint.



8. The learned counsel for complainant argued that the complainant herself intimated the fact of policy holder’s death within time and issued a legal notice to both the opposite parties on 28.02.2009 and received by them on 02.03.2009. So, the allegation of counter that the complainant was not intimated and not submitted the documents is not maintainable. Since she issued the legal notice within 90 days, she prays the fora to grant reliefs.





9. The learned counsel for opposite party argued that according to the clause 7 of policy, the complainant has to intimate the fact of death and has to submit all the required documents within 90 days. In the present case he denied the issuance of legal notice and submission of relevant documents, and prayed this fora to dismiss the complaint.





8. On hearing both sides and with the strength of material available on record, it is an admitted fact that the husband of the complainant is the policy holder, which was issued by the OP.2 and which is inforce as on date of death. Now, the point for discussion is whether the complainant complied the terms and conditions of the policy in claiming the compensation. On verification of Ex.A2 and Ex.A3 it is revealed that the present complainant issued a legal notice through her counsel on 20.02.2009 and the said notices were served on both the opposite parties on 02.03.2009, that is within 90 days. So, she made an intimation and thus she complied the terms and conditions of the policy. Since the opposite parties not made any agitation in connection with other terms of the policy and filed his counter for only ground of non intimation within 90 days, this fora discussed and decided the present case based on the agitated allegation.



9. In the result, the petition is allowed directing the opposite parties to pay Rs.1,00,000/- towards compensation with interest @ 9% p.a., from the date of filing of this complaint till the date of payment and also to pay Rs.5,000/- towards mental agony and Rs.2,000/- towards cost of the litigation to the complainant.

C.C.No:116/2009

BETWEEN:

Pullagujju Venu Madhav,

S/o Ramaiah,

Dr.No.5/180,

R/o N.G.O.Colony,

Kurnool Road,

Ongole.

... Complainant.

Vs.

1. The Branch Manager,

ICICI Lombard General Insurance,

Anjaneya Towers,

Venkateswara Puram,

Labbipet, Vijayawada,

Krishna District.



2. The Branch Manager,

Karur Vysya Bank Limited,

Kurnool Road,

Ongole. …Opposite parties
COUNSEL FOR COMPLAINANT : SRI K. SIVA NAGESWARA RAO.

ADVOCATE, ONGOLE.

COUNSEL FOR OPPOSITE PARTY NO.1 : SRI E. RAJASEKHAR REDDY,

ADVOCATE, ONGOLE.

COUNSEL FOR OPPOSITE PARTY NO.2 : SRI B. RAMALINGAM,

ADVOCATE, ONGOLE.
This complaint is coming on 05.01.2010 for final hearing before us and having stood over this day for consideration this Forum delivered the following:

Per: SRI A. PRABHAKAR GUPTA, MEMBER: ORDER:



1. This is a complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 against the opposite parties.



2. The case of the complainant is that the complainant is the owner of Toyota Innova Car bearing number AP16 AP 5666 which is having worth of Rs.9,00,000/- and he insured the said vehicle with the 1st opposite party by paying the premium, and inturn the 1st opposite party issued a policy bearing no.3001-53889326/01/000 which is valid from 1304.2009 to 12.04.2010. In payment of premium amount the complainant issued a cheque for Rs.13,000/- and a D.D. for Rs.1,266/- dated 11.04.2009. After receiving the said instruments the policy has been issued in favour of the complainant. Subsequently on 18.05.2009 at about 4 a.m. while the said vehicle was coming from Hyderabad collided with a Volvo Bus as the driver of the bus applied sudden brakes, due to which the car of the complainant damaged at Nakarikallu check post. Immediately he reported the matter to the Nakarikallu police station for which they issued a certificate to that effect. Immediately the complainant informed the said damage to the 1st opposite party company through their toll free no.18002098888 for which the opposite party requested the complainant to bring the vehicle to Radha Madhav Toyoto Show Room at Vijayawada. Accordingly, the complainant brought the vehicle to Vijayawada by spending Rs.5,000/-. Further on 18.05.2009 the surveyor who was sent by 1st opposite party inspected vehicle at Vijayawada and also took the claim form bearing no.1128158 from the complainant. The show room authority assessed the damages of the vehicle as Rs.1,90,022/- besides the damage of battery, brake of ally along with tires and expenditure of Rs.22,500/-. When the complainant submitted the claim form to the 1st opposite party mentioning all the true facts on 21.05.2009 the 1st opposite party sent a letter stating that the claim of the complainant is not admissible as the policy was not in force due to the non realization of premium amount. Immediately the complainant approached the 2nd opposite party and enquired about the fate of the issued cheque. The 2nd opposite party stated that due to technical problem in their system on 28.03.2009 the system debited the amount of Rs.1684.60 Ps. twice and the balance falls insufficient to the issued cheque amount, and hence they are not honoured the cheque and returned the same with an endorsement in sufficient of funds. The fact of the technical problem has been intimated to the 1st opposite party by the 2nd opposite party by a letter dated 20.05.2009 and requested the 1st opposite party to re-present the dis-honoured cheque by explaining the technical problem. Since the 2nd opposite party did not rectify his mistake of debiting twice of amount and causes the present problem, the complainant attributed deficiency of services on them. Further, as the 1st opposite party not intimated to him with regard to the bounce of cheque and as the claim of the complainant repudiated by the 1st opposite party though the policy is in force, the complainant attributed deficiency of services of opposite party no.1 also. Hence, the complaint.



3. In reply to the complaint the 1st opposite party filed his counter admitting the fact of issuance of policy and receive of cheque and denying the deficiency of services on the part of them due to non payment of premium amount as the issued cheque was bounced. Further the 1st opposite party confirm the liability on 2nd opposite party since the 2nd opposite party is the main party to cause this problem and prayed this for a to dismiss the complaint against them.



4. In reply to the complaint the 2nd opposite party bank filed his counter admitting the fact of debiting amount twice and requested this fora to dismiss the complaint against them since the fact was intimated to the 1st opposite party by way of letter which contains a request for re presentation of the bounced cheque, which caused due to technical problem. Further the 2nd opposite party confirm the liability in payment of claim amount on 1st opposite party as the policy is in force and the defect was caused due to technical problem and prays the forum to dismiss the complaint against them.



5. On behalf of the complainant Exs.A1 to A16 were marked. Ex.A1 is the copy of policy issued by 1st respondent. Ex.A2 is the Savings Account copy of Complainant. Ex.A3 is the Certificate issued by the Police of Nakirikallu. Ex.A4 is the Cash receipt issued by Sri Sai Teja Car Travels, Ongole. Ex.A5 is the Copy of claim Form issued by Surveyor of 1st respondent. Ex.A6 is the Damage Estimation copy issued by Show Room Authority. Ex.A7 is the letter dated 21.05.2009 sent by 1st respondent. Ex.A8 is the letter sent by 2nd respondent to the 1st respondent. Ex.A9 is the Cash Bill issued by Radha Madhav show Room for Rs.1,64,000/-. Ex.A10 is the Tow cash receipts for Rs.1,64,000/- issued by show Room. Ex.A11 is the cash receipt issued by Sri Hasini Tires dated 08.06.09

for Rs.6,000/-. Ex.A12 is the Cash receipt issued by Sri Hanuman Enterprises dated 08.06.2009 for purchase of Battery for Rs.6,001/-. 13. Cash receipt dated 08.06.2009 issued by Area Car shopee for Rs.16,500/-. 14. Certificate of Registration for vehicle AP 16 AP 5666. Ex.A15 is the copy of legal notice dated 23.05.2009. Ex.A16 is the Acknowledgements of couriers 4 in number.



6. On behalf of the 1st opposite party Exs.B1 to B11 were marked. Ex.B1 is the Private Car Package policy certificate cum policy schedule bearing No.3001/53889326/01/000 issued for the vehicle bearing no.AP 16 AP 5666. Ex.B2 is the notice issued to complainant about cancellation of policy due to the cheque bounce, dated 05.08.2009. Ex.B3 is the under certificate of posting dated 16.05.2009. Ex.B4 is the Notice issued to R.T.O., Ongole about cancellation of policy due to the cheque bounce, dated 05.08.2009. Ex.B5 is the under certificate of posting dated 19.05.2009. Ex.B6 is the Surveyor report dated 21.05.2009. Ex.B7 is the claim repudiation letter dated 21.05.2009. Ex.B8 is the Karur Vysya Bank; Ongole A/c Copy for the complainant a/c. Ex. B9 is the letter issued by the Karur Vysya Bank Limited, Ongole admitting their mistake. Ex.B10 is the cheque no.811678 dated 11.04.2009 for Rs.13,000/- belongs to the complainant of the Karur Vysys Bank Limited, Ongole Branch. Ex.B11 is the Cheque Return Memo dated 27.04.2009 that the cheque was returned due to the insufficient funds.



7. No documents are marked on behalf of the 2nd opposite party.



8. The point for consideration is whether the complainant is entitled for the claim as mentioned in the complaint since the insurance policy is in force?



9. The learned counsel for the complainant argued that at the time of obtaining policy he issued a cheque for Rs.13,000/- belongs to 2nd opposite party dated 11.04.2009 and a D.D. of Rs.1,266/- dated 11.04.2009 towards the payment of premium. After receiving of the same the 1st opposite party issued the policy and on 18.05.2009 with his call the 1st opposite party requested him to bring the damaged vehicle to Vijayawada and O.P.1 himself appointed a surveyor who visited and inspected damaged vehicle and who issued a claim form. All these acts are done by the 1st opposite party and surprisingly on 25.01.2009 when the complainant made a claim the 1st opposite party repudiated the same on the ground that the policy was not in force due to non realization of premium amount. Further, he argued that when once the policy was issued it is in force. Until, the same was cancelled by the insurance company with due process of law. Admittedly this policy was issued by the 1st opposite party which is inforce from 13.04.2009 to 12.04.2010 and in the absence of any intimation in connection with the cancellation of the policy and in the absence of intimation to the concerned authorities with regard to the cancellation of the policy, dis-honour of issued cheque is not a ground to repudiate the claim of the complainant. For which he submitted the authority is reported in (2009) ACCI-12-690(AP) and 2008 (1) An.W.R.218 (A.P.) and requested the fora to allow the claim.



10. The learned counsel for the 1st opposite party argued that the cheque for Rs.13,000/- dated 11.04.2009 was presented for collection and the same was returned by the 2nd opposite party with an endorsement in sufficient of funds and on that basis the contract is not maintainable since the consideration was not paid by the complainant. He further argued that the technical problem with regard to debiting of double time entry is purely defect of 2nd opposite party and the 2nd opposite party is solely responsible for the payment of claim and requested this forum to dismiss the complaint against them.



12. The learned advocate for 2nd opposite party argued that the technical problem beyond their control and under un-avoidable circumstances that debiting of double time occurred in the account, and the fact has been intimated to the 1st opposite party with a request to represent the cheque. Further he argued that as the policy is inforce and the filed documents of the 1st opposite party are not having genuiness and hence the 1st opposite party is alone liable to pay claim to the complainant.



13. With the arguments of the advocates for all parties and on the strength of documents available on hand, it is an admitted fact that the complainant is the owner of the damaged vehicle and he is the holder of insurance policy issued by the 1st opposite party which is inforce from 13.04.2009 to 12.04.2010. There is no dispute with regard to these facts. The fact of issuance of cheque for Rs.13,000/- drawn on to 2nd opposite party issued by the complainant towards the payment of premium and the balance amount of premium has been paid by the complainant by way of D.D. to the 1st O.P. and after receiving of the said instruments only the 1st opposite party issued the present policy which is inforce. So, issuance of policy by the 1st opposite party is also admitted by the 1st opposite party in his counter and argument. The version of the 1st opposite party is that he presented cheque dated 11.04.2009 for collection and the 2nd opposite party returned the same on the ground of insufficient funds is a fact and ground for repudiation of complainant claim since the consideration of the policy is not received by the 1st opposite party is not tenable.



14. Further argument of the 1st opposite party that they never appointed any surveyor and they intimated the fact to the authorities concerned including the complainant in connection with the bounce of cheque on 16.05.2009 and 19.05.2009. So, the 1st opposite party already cancelled the issued policy by way of intimation is not on proper line since the accident took place on 18.05.2009 and the letters to the concerned authorities dispatched on 19.05.2009 though the concerned letters are appearing prior dates. So, it seems to be the 1st opposite party intimated the fact of cancellation of policy after accident. Further by the Ex.B2 filed by the 1st opposite party which is a intimation to the complainant with regard to the cancellation of policy not bearing authenticated signature and bearing date as 05.08.2009 and the dispatch of the Ex.B2 is also not made on the letter bearing date. So, the genuiness of this document is suspicious. Since the opposite party intimated the fact of cancellation after the occurrence of the accident, the 1st opposite party is liable to pay the claim amount. For which this forum observed precedents delivered by Supreme Court and reported in AIR 2008 (SC) 764. In that case their lordships held that intimation with regard to cancellation of policy to be made to all concerned authorities by the insurance company. Failing which it would be treated to be statutory default and insurance company can not avoids its liability. In such circumstances the same views are also expressed by the Alhabad High Court reported in 2009 (ACLI.C.R.690 (AII) and 2008 (1) Ar.W.R.218 (A.P.). So, this fora feels that the intimation made by the 1st opposite party after the occurrence of accident is confirmed. Coming to the liability of 2nd opposite party the mistake committed by them is purely technical and one cannot avoid such defect. Further the 2nd opposite party made a representation to the 1st opposite party with all material facts admitting their defect in debiting the entry twice and requested the 1st opposite party for the representation of the bounced cheque. This fact and this act clearly shows the innocence and admission of 2nd opposite party. Since, 1st opposite party not followed the statutory procedure contemplated under Section 149 and 147 of Motor Vehicle Act, 1988 and as the defect of 2nd opposite party is occurred in un avoidable circumstances this fora fells that the 1st opposite party alone responsible to pay the claim of the complainant.



15. In the result, the complaint is allowed in part directing the 1st opposite party to pay Rs.1,66,253/- covered under the bill and Rs.5,000/- for costs of litigation to the complainant with in one month from the date of order. Failing which the amount carries interest at 12% P.a till realization. Case against the 2nd opposite party is dismissed with out costs.

C.C.No.158 OF 2008.

Date of filing: 28.08.2008.
Between :

M/s. S.V.R. Exporting Agency, Rep: by its Managing Partner, Bihari Prasad, Kaikalur, Krishna District.

….. Complainant.
And

M/s ICICI Lambord General Insurance Company Ltd., Rep: by its Branch Manager, Anjaneya Towers, Door No.39-1-82/A, M.G. Road, Venkateswarapuram, Vijayawada.

….. Opposite Party.

This complaint is coming before us for final hearing on 08.01.2010, in the presence of Sri S. Mallikharjuna Rao, advocate for complainant and Sri T. Veerabhadra Rao advocate for opposite party and having stood over for consideration till this day, the Forum doth order the following :

O R D E R

Smt N. Tripura Sundari, Member:

This complaint is under Section 12 of the Consumer Protection Act, 1986.
1. The averments of the complaint in brief are as follows:

That the complainant is the registered owner of the vehicle TATA Safari EX bearing No.A.P. 16 AG 7929 and the same was insured with the opposite party to comprehensive risk. The opposite party issued a policy baring No.3001/50408395/00/00 from the period from 08.10.2006 to 07.10.2007 while so the said vehicle met with an accident on 10.06.2007 and the same was badly damaged. The said fact was informed to the opposite party and on their advise the complainant kept the damaged vehicle at M/s Jasper Industries Pvt., Ltd., Vijayawada for repairs and asked the complainant to submit requirements for processing the claim. Accordingly, the complainant submitted all relevant documents to the opposite party but the opposite party instead of settling the claim, sent a letter dated 21.07.2007 stating that their inability to honour the claim on the strength of flimsy grounds. The complainant made several representations to the opposite party requesting to settle the claim, but in vain. The attitude of the opposite party in not settling the claim of the own damage to the vehicle amounts to deficiency in service. Hence, the complaint.

2. The opposite party filed version, which runs in briefly are as follows:

That the opposite party denied all the allegations of the complaint and submitted that the complainant approached the opposite party for insurance to hi vehicle No. AP 16 AG 7929 on 06.10.2006 along with previous policy of United Insurance Co., Ltd., in policy No.151000/31/5/04612 for the period from 08.10.2005 to 07.10.2006 of the said vehicle and submitted ICICI Lombard Proposal Form for private cars package policy and paid premium of RS.25,137/- by receipt dated 06.10.2006 to the opposite party. The opposite party had issued Motor Insurance Policy No.3001/50408395/00/000 covering the period from 08.10.2006 to 07.10.2007 basing on the previous policy furnished in the proposal form. At the time of obtaining motor insurance policy the complainant’s vehicle had no valid insurance policy with any insurance company and obtained the present policy by misrepresentation of fact and incorrect answer in proposal form about the details of previous policy of United India Policy. On enquiry of this opposite party came to know that the previous policy furnished by the complainant was expired on 27.09.2006 and to mislead the opposite party, the complainant tampered the date of United India Policy as 08.10.2005 to 07.10.2006. The complainant willfully and voluntarily suppressed the facts which are within the knowledge of him and acted against the principles of Insurance Act, i.e., contract of utmost good faith prior to obtain policy. The policy in question from this opposite party the complainant obtained a policy from opposite party for the same vehicle from 27.09.2006 to 26.09.2007 No.3001/50288916/00/000 and this opposite party cancelled the same due to bounce of premium cheque issued by the complainant and all this information had been suppressed by the complainant. The opposite party wrote letters to the complainant on 26.10.2007 and 21.07.2008 but the complainant had not been given any satisfactory reply and filed the complaint for unlawful gain. The opposite party carefully examined and expressed its inability to honour the claim on the ground of ‘misrepresentation’ of facts in obtaining the ‘policy in-question’. The opposite party has to bound to follow the rules and regulations of the Tariff Advisory committee & Insurance Act. As per the Insurance Act, the opposite party is not liable to indemnify the complaint for suppression of material facts. There is no police report of accident or proof of accident or statements of witnesses, accident spot survey photos, survey report, repair bills of spare parts or labour charges etc., or salvage item, photos after repair. There is no evidence to know the exact damage of the vehicle or assessment and to its repair bills by authorized dealer. The estimation given by Jasper Industries Pvt., Ltd., dated 18.06.2007 and 19.06.2007 is created for the purpose of claim. The complainant is not entitled any amount i.e., Rs.8,10,329/- and Rs.50,000/- for mental agony and Rs.1,00,000/- towards loss and Rs.10,000/- towards costs and garage rent Rs.24,000/- and interest and costs. The opposite party prayed to dismiss the complaint with exemplary costs.
3. On behalf of the complainant the complainant himself file an affidavit and got marked Exs.A1 to A11. On behalf of the opposite party Sri J. Mohan Reddy, Manager legal filed an affidavit and got marked Exs.B1 to B14 and Sri Y. Madhu Babu an independent Insurance Surveyor IRDA on behalf of the opposite party gave his affidavit and submitted his survey report of the damaged vehicle of the complainant.
4. Heard and perused.


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

I) Whether the complainant acted against the principles of Insurance Act by suppressing the material facts in proposal form at the time of obtaining the policy from the opposite party?

II) Whether there was any deficiency in service on the part of the opposite parties? If so the complainant is entitled for the relief?

III) To what relief the complainant is entitled?

6. Point No.1: As could be seen from the material on hand the complainant is the owner of the vehicle TATA Safari EX bearing No.AP 16 AG 7929 and it was insured with the opposite party to cover the comprehensive risk and the complainant paid premium of Rs.25,550/- by way of D.D. No.576496 dated 06.10.2006. The opposite party received the premium and issued policy to the complainant bearing No.3001/50408395/00/000 valid from 08.10.2006 to 07.10.2007. Ex.A10 a cover note motor vehicle insurance and Ex.B1 proves the same. As per the complainant the insured vehicle was met with an accident on 10.06.2007 and was damaged badly. On the advise of the opposite party the vehicle was kept at M/s Jasper Industries Pvt., Ltd., at Vijayawada by the complainant for repairs. The complainant submitted claim form to the opposite party under Ex.B4 proves the same. The opposite party sent a letter dated 26.06.2007 to the complainant that is Ex.A2 stating that the opposite party was unable to retrieve the policy which was submitted by the complainant in opposite party’s system (i.e., 3001/50288913/00/000) and requested to submit correct policy. Again the opposite party sent letter to the complainant dated 21.07.2007 that is Ex.A4 stating that the opposite party had received the documents submitted by the opposite party for processing the claim but the opposite party regret inability to honour the claim for further process due to misrepresentation of facts that previous policy coverage details were damaged at the time of proposing the policy. Again the opposite party sent a letter to the complainant dated 20.09.2007 (Ex.A3) requesting the complainant to explain the facts which were misrepresented at the time of proposal and stated that at the time of proposal, policy copy of previous insurer was manipulated by extending the policy schedule. Ex.B8 and Ex.B9 proves the same. The version of the opposite party is that at the time of obtaining insurance policy from the opposite party the complainant’s vehicle had no valid insurance policy and obtained the present policy by misrepresentation of facts and incorrect answer in proposal form. The previous policy furnished by the complainant was expired on 27.09.2006. The complainant tampered the date of previous policy as 08.10.2005 to 07.10.2006 to show that the complainant’s vehicle had previous policy at the time of taking the policy from the opposite party. The counsel for the opposite party argued that the complainant suppressed the above facts willfully and voluntarily which were within his knowledge and acted against the principles of Insurance Act, i.e., contact of “Utmost good faith”. Prior to the present policy, the complainant obtained a policy from the opposite party for the same vehicle from 27.09.2006 to 26.09.2007, policy No.3001/50288913/00/000 rand it was cancelled due to dishonour of premium cheque issued by the complainant. Ex.B6 and Ex.B7 proved the same. But now in the present case it is not the issue whether the complainant suppressed the material facts in the proposal form at the time of obtaining the present policy form the opposite party and acted against the principles of Insurance Act or not? The complainant had the vehicle and the same was registered with transport department of Andhra Pradesh (Ex.A11 and Ex.A13) and the same was insured with the opposite party the premiums were paid by the complainant and it is true that the insured vehicle met with an accident and damaged badly. The driver of the vehicle had valid license at the time of accident and the insurance policy issued by the opposite party to the complainant was in force at the time of accident. The Forum holds that the opposite party cannot escape from his liability by showing that the complainant suppressed the material facts in the proposal form at the time of obtaining the policy from the opposite party and acted against the principles of Insurance Act and accordingly this point is answered.



7. Point No.2: On pursuing documents and on hearing both the counsels it is true that the complainant had TATA Safar vehicle and he registered the same and insured the vehicle with the opposite party and the vehicle was met with an accident and the same was informed to the opposite party. On the advise of the opposite party the damaged vehicle was kept at Jasper Industries Pvt., Ltd. Ex.A5 and Ex.A8 proves the same. The complainant submitted claim form to the opposite party as there was no response from the opposite party in settlement of the claim he sent register letter to the opposite party to settle the claim (Ex.A6) and the opposite party refused to settle the claim on the ground by showing that the complainant acted against principles of Insurance Act, by suppressing the material facts in the proposal form at the time of obtaining the policy from the opposite party, the complainant sent a complaint though his letter dated 19.03.2008 to the insurance ombudsman, Hyderabad (Ex.A9) and requested to issue registration form to submit the claim file. It is true that the opposite party appointed a surveyor and loss assessor to estimate the loss of the damaged vehicle of the complainant. The surveyor submitted his report on 28.06.2007 to the opposite party (Ex.B5) and the loss was assessed at Rs.1,79,072/-. But the opposite party did not move to settle the claim of the complainant till now and the opposite party is trying to escape from his liability by showing that the complainant suppressed the material facts in proposal form at the time of obtaining the policy from opposite party. It is true that the complainant did not file any police report of accident or proof of accident or statements of witnesses, accident spot survey photos, survey report, repair bills of spare parts or labour charges etc., or salvage items, photos after repair. There is no proven and hard evidence to show the extact damage of the vehicle or assessment by an independent surveyor and loss asse3ssor and corresponding to its repair bills by authorized dealer with relevant depreciation. But we the Forum come to a conclusion on the available documents in our hand, that the insured vehicle of the complainant was damaged due to accident and the opposite party assessed the loss by its surveyor but did not take any steps to settle the claim even to that extent. So it seems there is deficiency in service on the part of the opposite party and is liable to pay the costs of the damages of the insured vehicle of the complainant. Though, the complainant could not show any evidence about the damages of the vehicle and loss to him, in view of the principle of natural justice the Forum hold that the complainant is entitled to get reliefs for his damaged vehicle as assessed by the surveyor of the opposite party. The counsel for the opposite party filed citations (i) The National Insurance Company Ltd., Vs Blanny C.D. Souze in 2009 (2) CPR 201 (NC) (ii) United India Insurance Co., Ltd., Vs Deen Dayal in 2009 (1) CPR 284 (NC) (iii) Pradeep Kumar Sarma Vs National Insurance Co., in 2008 (3) CPR 51 (NC). In the present complaint the Forum is also in the same view, so, we agree with the citations filed by the counsel for the opposite party and the complainant is entitled to get the sum of Rs.1,79,072/- as assessed by the surveyor of the opposite party for the damaged vehicle and accordingly this point is answered.

8. Point No.3: In the result, the complaint is allowed in part and the opposite party is directed to pay Rs.1,79,072/- (Rupees one lakh seventy nine thousand and seventy two) only to the complaint as assessed by the surveyor of the opposite party and do pay Rs.1,000/- (Rupees one thousand) only towards costs. Rest of the claim if any claimed by the complainant is rejected. Time for compliance one month. If the opposite party fails to comply the order of this Forum within the stipulated time the awarded amount carries interest at 9% till the date of payment.

DATED THIS THE 06th DAY OF JANUARY 2010.

COMPLAINANT

BY-SRI. SRI. S.RANGAIAH CHETTY,

SRI. G. VEERESH,

ADVOCATES, BELLARY.

//VS//


SRI. M. MANJUNATH,

S/O M. KUMARSWAMY, R/O SMIORE COLONY,

SANDUR POST, BELLARY DISTRICT.
RESPONDENT/S

By-Sri. B.Venkateswara Prasad,

Advocate, Bellary.

For Respondent No.1 and 3.



By-Sri.R.Sandeep,

Sri.M.K.Srihari,

Advocates, Bellary.

For Respondent No.2.



By-Smt. K.Girija,

Advocate, Bellary.

For Respondent No.4.


1. THE MANAGER/THE AUTHORISED

SIGNATORY, ICICI/LOMBARD GENERAL

INSURANCE, UPSTAIR, LAXMI TVS,

PARVATHI NAGAR, 1ST LINK ROAD,

BELLARY – POST.



2. THE MANAGER/THE AUTHORISED

SIGNATORY, BHAGYODAYA MOTORS

PVT. LTD., TATA PASSENGER CAR

DEALERS, No.174/1, BELLARY ROAD,

HOSPET – 583 201.

3. THE MANAGER/THE AUTHORISED

SIGNATORY, ICICI/LOMBARD GENERAL

INSURANCE, REGISTERED OFFICE,

ZENITH HOUSE, KESHAVARAO KHADAYE

MARG., MAHALAKSHMI, MUMBAI-400 034.


4. SRI. D. UMESH KUMAR,

WORKING UNDER No.1, CARE OF THE

MANAGER, ICICI/LOMBARD GENERAL

INSURANCE, UPSTAIR, LAXMI TVS,

PARVATHINAGAR, 1ST LINK ROAD,

BELLARY POST.

//JUDGEMENT//

Sri. S.M.Reddy, President.

This is the complaint filed by above named Complainant under Sec-12 of C.P.Act, 1986 against the Respondents claiming damages caused to his vehicle from the Respondents under an Insurance Policy along with compensation towards deficiency of service, mental torture etc.
2. The brief facts of the Complainant’s case are that;

He is the registered owner of Tata Sumo vehicle bearing Regn. No.KA-35/M-8008(old) and KA-35/MB-8 (new) and the said vehicle was being used for his private family purpose and the said vehicle was validly insured with the Respondent No.1 and 3 under Private Car Package Policy for the period from 17-01-2008 to 16-01-2009. Further it is the case of Complainant that, on 06-09-2008 when the Complainant and his family members were travelling in the said vehicle from Hospet to Sandur near Range Forest Office, Sandur, due to heavy rains the ditches on the road were covered with water as a result of which the driver was not able to know about depth of the same as a result the right side wheel fell into one of such ditch as a result of which the chassis and other parts of vehicle were damaged which act has not intentional one. After the said incident, the Complainant gave information to the Respondent No.1 and 3 who are the insurers and got estimated the damages for repairs from the Respondent No.2 who estimated the damages as Rs.1,00,000 and odd. Thereafter, the Complainant got effected the repairs and put forward the claim to the Respondent No.1 and 3 and the Respondent No.1 and 3 vide letter dated: 25-10-2008 issued by its Manager-Respondent No.4 repudiated the claim on the ground that the damages in the said vehicle was due to mechanical failure of the parts (due to alteration of front suspension). The ground put forward by the said Respondents is untenable, because the entire purpose of insuring the vehicle was to give protection to the persons travelling in the vehicle and also for any type of damages which will be caused to the said vehicle. Therefore, the repudiation of claim by the said Respondents amounts to deficiency of service and so after issuing legal notice dated: 21-11-2008 calling upon the Respondents to settle the claim of Complainant. When they failed to comply with the said notice, the Complainant is constrained to file this complaint against the Respondents. The Complainant has claimed a sum of Rs.1,03,113/- towards approximate bills are prepared given by the Respondent No.2 and also he has claimed compensation of Rs.50,000/- towards deficiency of service and mental torture and also Rs.25,000/- each towards long delay in paying repair charges and also delay in giving report and timely reply and also claimed cost of Rs.6,000/-. Thus, he has claimed a total sum of Rs.2,09,113/- from all the Respondents with future interest @ 18% p.a. from the date of notice till the date of realization.



3. The Respondent No.2 is appeared through an Advocate, but he has not filed his Written Version and adduced any evidence inspite of sufficient time granted to him and not participated in the proceedings.



4. The Respondent No.1 and 3 who are the insurers have appeared and Respondent No.1 has filed Written Version which has been adopted by the Respondent No.3 by filing a Memo to that effect. The said Respondent No.1 and 3 in their written version except admitting that the Complainant has insured said vehicle with the Respondent No.3 under a Policy referred to therein in the complaint for a period from 17-01-2008 to 16-01-2009 has denied all other averments made in the complaint and according to them the Policy issued by the said Respondents is subject to terms and conditions enumerated therein which are binding on both the parties. Further it is the case of said Respondents, that on intimation given by the Complainant the Respondent No.1 has appointed one Mr.M.Rusheeswar Reddy, Surveyor & Loss Assessor, Hospet and he has visited the premises of Respondent No.2 on 21-10-2008 and has inspected the vehicle of Complainant and also enquired about how the damages occurred and also noted down the damages caused to the vehicle and further on inspection at the time of survey, the Surveyor has found that the damages are not due to any incident/accident that is external means and the same occurred due to alteration of front suspension and wear and tear of mechanical breakages and Surveyor has specifically mentioned the cause how the damages occurred in Page-2 of report at Observation and hence, these Respondents are not liable to indemnify the Complainant for the said damages as per the terms and conditions of the Policy . Therefore, these Respondents vide letter dated; 25-10-2008 have repudiated the claim of the Complainant. So there is no deficiency of service on their part. Therefore, there is no cause of action to file this complaint. On these grounds, they have prayed for dismissal of the complaint.

5. The Respondent No.4 who is working as a Manager, Customer Service of Respondent No.1 and 3 who has also been made as a party has appeared through his counsel and filed his Written Version wherein he has stated that the Complaint against him is not maintainable and he is working as a Manager of Respondent No.1 and 3 and he has acted legally on behalf of the Company in repudiating the claim and sent the said letter dated: 25-10-2008 and he has unnecessarily been made as a party. So the Complaint is bad for mis-joinder of parties. On these grounds, he has prayed for dismissal of the complaint against him with cost.

6. The Complainant in support of his case filed his affidavit evidence as P.W.1 and got marked documents as Ex.P.1 to Ex.P.14 and closed his side. On behalf of the Respondent No.1 and 3, the Manager-Legal of Respondent No.3 has filed his affidavit evidence as R.W.1 and got marked documents Ex.R.1 to Ex.R.6. The Respondent No.4 has filed his affidavit evidence as R.W.2 and the Respondent No.1 and 3 have filed the affidavit evidence of Surveyor as R.W.3 and closed their side. Both parties have filed their respective written arguments and oral arguments are also heard.

Is government paid farmers insurance premium

Sir,
I have taken policy no. 400/0009017/0204978 dated: 05.03.2008 and paid the first premium vide receipt no. 17006550 at following place
INDIA INFOLINE
2nd Floor
Gold Sulth complex
Girnar chowk
chandrapur
Maharashtra.
I have not received any premium notice till date. Pleasse look into the matter and send me premium notice at following address.
5 / c type 4 sector 5 O F Chanda, Bhadrawati, Dist: Chandrapur Pin : 442501, Maharashtra.

icici lambard general insurance





















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Hi,

This is really a great post. I have also herd that this year ICICI is going to lower down the Interest rate. Is that true?


Thank You