Date of Filing: 8.01.2008
Date of Order: 13-03-2009

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM –II, HYDERABAD

P r e s e n t*

Sri N. Venkatesham, Bsc., L.L.B., … President
Dr. G. Kumaraswamy Naidu M.A., MPhil., P.hd.,L.L.B., … Member

Friday, the 13th day of March ,2009

Consumer Case No.23/2008

Between
A.K. Agencies,
Having its Office at 5-6-818/2, DarusalamRoad,
Hyderabad. Being Rep.by its Proprietor
Mr. Abdul Gaffar. S/o. Late Abdul Quader,
Aged, Occ:
R/o. 8-1-351/22, Tolichowki, Hyderabad. ……Complainant

And
.
ICICI Lombord General Insurance Co. Ltd.,
Having its Office at Flat No.301, 5th Floor,
Bhavana Towers,S.D. Road, Secunderabad-500 025.
Rep by its Branch Manager. …..Opposite party


This case coming on 18-02-09 for final hearing before this forum in the presence of P. Raja Sripathi Rao advocate for the complainant and Sri Jyothi Rao, advocate for the opposite party No.1 and having stood over till this date for consideration, this Forum pronounced the following:-

O R D E R

(By Sri N. Venkatesham, President on behalf of the bench)

. This complaint under Section 12 of Consumer Protection Act, 1986 was filed by the complainant for a direction to the opposite party to pay a sum of Rs. 67,277/- that is the amount paid by the complainant to M/s. Harsha Toyota together 24% interest per anum and to pay an amount of Rs.25,000/- for causing mental agony and cost of the complaint at Rs.10,000/-.


1. Case of the complainant runs thus:- The complainant is proprietary concern, purchased the vehicle (Toyoto Innova) bearing Registration No. AP 10 AF2408/ under finance from Darusalam Co-operative Bank and paying equal monthly instalments at Rs. 18,700 regularly after purchase of the vehicle, it was insured with the opposite party vide policy No.3001/51937960/00/000 and policy was issued on 14-06-2007, covering the period of insurance from 8-6-2007 to 07-06-2008.

It is stated that the above said vehicle was involved in an accident (Date and place of accident is not mentioned) and immediately after the accident, the vehicle was shifted to M/s. Harsha Toyota for affecting repairs. Later on, intimation was given to the opposite party and inturn, the opposite party deputed the Surveyor who inspected the vehicle and gave the approval for effecting the repairs. After repairs and on intimation was given to the complainant he had taken delivery by paying the bill towards repairs. The bill given by M/s. Harsha Toyota (Authorised Dealer) was submitted to the opposite party for settling the claim and intimation was also given in writing on 25-10-2007 but the opposite party has not settled the bill. Thereafter, a reminder was given to the opposite party on 2-11-07 and on that the opposite party replied vide its letter dated 6-11-07 under Ref. No.HYD/FDRCLM/3561/2007 where under the claim made by the complainant was repudiated on the ground. that “Drivers name, manipulated”. The repudiation of the claim is malafide and non-settling the claim by the opposite party amounts to deficiency in service. Hence complaint is filed to direct the opposite party to pay a sum of Rs.67,277/- towards repair charges paid by the complainant to M/s. Harsha Toyota and to award interest at 24% p.a. The complainant also claimed a sum of Rs.25,000/- towards mental agony and Rs.10,000/- towards cost of the complaint.


2. The opposite party filed a Counter/Written version denying the contents of the complaint by stating that there is no mention as to the date of accident, as also the manner of the accident in the complaint. The FIR copy filed by the complainant reveals that FIR was lodged on 5-8-07, in which it was stated that accident occurred on 4-8-07 by an unknown vehicle and one Scooterist died in the said accident. The police filed the charge sheet on 30-08-2007 in which it was stated that driver of Toyota Innova bearing No.AP 10 AF 2408 drove the vehicle rashly and negligently while coming from Moinabad to Hyderabad, dashed to one scooterist near deer park due to which the scooterist died. Where as the complainant on 12-10-2007 in a written letter to the opposite party stated that when his vehicle was parked near his house at Toil chowki at 6.00 PM, a lorry passing by, hit the vehicle and there by the vehicle was damaged. Even in the said letter, there is no mention about the date of occurrence and damage caused to the vehicle. It is a fact that the opposite party was intimated about the alleged damage on 29-08-07. Though the surveyor of the opposite party informed the complainant to carry out the works as per assessment the claim of the complainant is subject to investigation report and for which the complainant has accepted. The complainant did not inform to the opposite party immediately after the damage was caused to the vehicle in the accident and no police report was given. Therefore, there is discrepancy in the version of the complainant regarding the manner of the accident and statement in FIR lodged on 4-8-07 and that the name of the driver of the accident vehicle was manipulated by the complainant. Thus repudiation of the claim by the opposite party is justified and as such complainant is not entitled to any reliefs prayed in the complaint. Hence prayed to dismiss the complaint of the complainant with costs.


3. After filing Counter/written version, complainant has filed a rejoinder by stating that date of accident was clearly mentioned in the letters dated 29-8-07 and 12-10-07. The repudiation of the claim by the opposite party is based the self drawn conclusion. The accident occurred on 5-8-07 and subsequently the Police Moinabad registered a false crime vide crime No.172/2007. The charge sheet filed by the Police is not within the knowledge of the complainant. The reason for late intimation of the accident to the opposite party is due to registering a false crime by the Police and harassment to the family members of the complainant. The police picked up the brother of the complainant by name Abdul Hameed on 10-08-07 at 12.00 Noon and that police accompanied with civilians visited the office of Mr. Abdul Hameed and started demanding him the presence of the complainant, even though the said Hameed informed the police about the non-availability of the complainant. The police took him in a Police Jeep bearing No.A.P9P 5661 initially to Ciberabad Police Commissioner’s Office and from there he was taken to Harsha Toyota Workshop and from there to Narsing Police Station, At Narsingi Police Station, another brother of the complainant by name Abdul Lateef along with Krishna Vijaya Rao and P.Raja Sripathi Rao, Advocates met the complaiannt’s brother who was under illegal detention and enquired about his wellbeing. Later on, a complaint was given to the Office of the Human Rights Commission and the same is pending.

The driver’s name was not manipulated.. The repudiation letter dated 6-11-07 is not based on the evidence and on what basis the opposite party came they came to the above said conclusion. Hence prayed to allow the complaint.

In course of enquiry, the complainant filed his affidavit, reiterating the contents of the complaint, and got marked exhibits A1 to A12.

Ex A1 is a Copy of First Information Report, dated 5-8-07
Ex.A2 is a Certificate of Registration issued by A.P. Transport Department
Ex.A3is a Copy of Invoice , dated 4-10-2007.
Ex.A4 is a Letter to the opposite party from complainant,
dated 25-10-07.
Ex.A5is a Letter to the Opposite party from complainant,
dated 2-11-07.
Ex.A6 is a Xerox copy of Certificate Cum Policy schedule
Ex.A7is a Xerox copy of Bank Statement
Ex.A8 is a Xerox copy of letter to the complainant, dated 06-11-2007.
Ex.A9is a Copy of Registered post Acknowledgement Due Legal Notice Dated 28-06-08.
Ex.A10 is a Copy of Reminder issued by A.P State Human Rights Commission H.R .Case No.1516/2007
Ex.A11 is a Police Report, dated 11-08-2007
Ex.A12 is a Letter from the complainant, dated 11-08-2007.
As against the evidence of the complainant, the opposite party got marked exhibits B1 to B5
Ex.B1is a Copy of First Information Report, dated 5-8-07
Ex.B2 is a Copy of complaint given by S. Vinayakarao, dated 5-8-07.

Ex.B3 is a Copy of Final result U/S 173 CR.P.C

Ex.B4 is a Copy of letter to the OP, dated 12-10-2007.

Ex.B5 is a Copy of letter to the OP, dated 25-10-2007.


After closure of the oral and documentary evidence adduced by both parties, written arguments were filed and this forum also heard oral submissions.

Points for Consideration :-


1.Whether the repudiation of claim made by the opposite party is sustainable?
2.Whether the complainant is entitled to the directions sought for?
3. To what relief?

Points No.1 and 2:- So far as the insurance policy of the complainant’s vehicle bearing No. AP 10 AF 2408 with the opposite party for the period from 8-6-2007 to 7-6-2008, is not in dispute. There is also no dispute with regard to intimation given by the complainant to the opposite party. It is also not in dispute that the opposite party’s surveyor had inspected the vehicle at their work shop (M/s. Harsha Toyota) and also the bills paid by the complainant towards the repair charges.

The opposite party repudiated the claim on the ground of manipulation of the driver’s name and that the date and time of accident are not mentioned. The contention of the opposite party is not based on any material and the FIR in which a sccorterist died and regarding which Moinabad Police registered a case, it is however, disputed by the complainant and the claim relates to only the damages of the vehicle, which is fully covered by the policy. It is not a claim arising on amount of the said accident of Moinabad Police Station but an altogether different one. Hence the opposite party is bound to indemnify the complainant’s vehicle and that the complainant is entitled for repair charges with interest at 9% p.a. from the date of the complaint till realisation. Regarding damages, complainant is not entitled as he is being compensated the bill amount with interest points are answered accordingly.


Point No.3:- In the result, complaint of the complainant is partly allowed and we direct the opposite party to pay a sum of Rs.67,277/- (Rupees Sixty seven thousand two hundred and seventy seven only) together with interest at 9% p.a. from the date of complaint till its realisation. Costs of the litigation is fixed at Rs.1,000/- (Rupees one thousand only). The order shall be complied within two months from the receipt of this order.

ORDER

By Smt. C.S. Sulekha Beevi, President,

1. It is the say of complainant that his vehicle which is insured with opposite party dashed against an electric post of Kerala State Electricity Board. Complainant had to pay Rs.11,426/- towards damages to the Kerala state Electricity Board for which receipt was issued to him. Though complainant put forward a claim to opposite party to indemnify the above amount opposite party did not honour his claim. Hence this complaint.


2. Opposite party filed version admitting the insurance coverage. It is submitted by opposite party that complainant has violated condition No.2 of the policy which states that the complainant cannot enter into any arrangement or settlement with any other without the written consent of the company. That opposite party has not given any consent much less, a written consent to settle the matter with Kerala State Electricity Board and that therefore opposite party is not liable to compensate the complainant.. That complainant has not sustained any loss and what is claimed is reimbursement of a loss allegedly sustained by a third party which was made good by the complainant. That there is no deficiency in service.


3. Evidence consists of the affidavit filed by complainant and Exts.A1 to A6 marked for him. Opposite party filed counter affidavit. No documents marked for opposite party. Either side has not adduced any oral evidence.


4. Complainant is aggrieved that opposite party failed to reimburse the amount of Rs.11,426/- paid by him to Kerala State Electricity Board for the loss sustained by Kerala State Electricity Board on account of damage caused to the electric post in the accident involving the vehicle belonging to the complainant. Ext.A3 is the notice issued by Kerala State Electricity Board to complainant demanding him to pay Rs.11,426/-. Ext.A4 is the receipt for the payment of the said amount. Thus apparently complainant has paid the amount before obtaining any written consent from opposite party. The complaint is resisted by opposite party stating that as per terms and conditions of the policy, in case of any third party liability, the complainant has no right to arrive at any settlement or compromise with third party without the knowledge and consent of opposite party. Condition No.2 in page 6 of the policy produced along with version reads as under:

1. 
   
   1. 
      
      1. 
         
         1. “No admission offer promise payment or identity shall be made or given by or on behalf of the insured without the written consent of the Company which shall be entitled if it so desires to take over and conduct in the name of the insured the defence or settlement of any claim or to prosecute in the name of the insured for its own benefit any claim for indemnity or otherwise and shall have full discretion in the conduct of any proceedings or in the settlement or any claim and the insured shall give all such information and assistance as the Company may require.”

5. It is clear that complainant cannot make any payment without the written consent of the Company. Complainant has thus violated the conditions of the policy and opposite party cannot therefore be held liable. In our view the repudiation is justifiable. We hold opposite party not deficient in service.
6. In the result,t he complaint fails. We make no order as to costs.

1. Dated this 18th day of March, 2009.

REASONS POINTS 1&2: Complainant is the owner of tempo trax cruiser bearing no. KA29 M2644. it is insured with respondent for the period from 23-3-2008 to 22-3-2009 that vehicle met with accident on 24-5-08 while going from solapur to pune, maharashtra police have registered a case against driver of the vehicle. Damages were caused to that vehicle in that accident.

These facts are not in dispute. Accident has taken place on 24-5-2008. Complaint is filed in the year 2008 itself as such how the complaint is barred by time nothing is stated and proved by respondent as such its contention that complaint is barred by time, cannot be accepted. Respondent has repudiated the claim of the complainant only on a ground that, that vehicle was used for hire and reward purpose. Absolutely no material is produced by the respondent to prove that, that vehicle was used for hire and reward purposes. Respondent has got filed 2 letters of 2 persons who claim to have stated that, they have seen this vehicle using for hire and reward purposes. Affidavits of those 2 persons are not filed.

As such only on those 2 letters it cannot be said that, that vehicle was used for hire and reward purposes. By producing an estimate complainant claims to have spent a sum of Rs.259129.86 ps towards repair of that vehicle at Desai and co. Hubli. Only an estimate is produced but not the bills. Even affidavit of that Desai and Co. is not filed. As such, such quantum of damages cannot be ordered in favour of the complainant. Complainant has produced a bill for Rs.9200/- to state that, that vehicle was brought to Hubli by another vehicle, even affidavit of that person is not filed. Respondent has produced surveyors report.

Surveyor has estimated the damages at Rs.174903/- in which policy excess is deducted. That surveyor has assessed the salvages @ Rs.9800/- if that amount is deducted the damages comes to Rs.165103/- moreover, the complainant has not produced any material to disprove such surveyor’s report, as such if such quantum is ordered, may not be unjust. If reasonable rate of interest is ordered further order for deficiency in service and mental agony may not be necessary. However, the complainant will be entitled to the cost of the litigation. Non settlement of the claim on unproved fact amounts to deficiency in service.

Hence point.1 is answered in Positive and point.2 in Positive but accordingly. Point.3: In view of the finding given on points 1 and 2 proceeded to pass the following O R D E R The complaint is allowed in part with a direction to the respondent to pay Rs.1,65,103/- with 8% interest p.a payable two months after the date of accident i.e.24-5-2008 apart from Rs.1,000/- towards cost of the litigation within one month from the date of receipt of copy of this order. (Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 11th March 2009)

//JUDGMENT//

This is the complaint filed by the Complainant K.Nageshappa against Respondent Nos.1 and 2 ICICI Lombard General Insurance Company Ltd. under Sec-12 of C.P. Act, for to direct the Respondents to pay an amount of Rs.80,528/- which is an expenditure incurred by him for to repair of his damaged car in the accident with interest, to award an amount of Rs.1,00,000/- towards deficiency in their services, to award an amount of Rs.50,000/- for his mental sufferings with cost and other reliefs as deems fit to the circumstances of this case.

2. The brief facts of the Complainant’s case are that;

He is the owner of Indica DLS Car bearing Regn. No.KA-35/M-5131 which comprehensively insured with Respondents Insurance Company met with an accident 28/04/2008 while he was traveling in it near Kappagal village on public road while Insurance Policy was in force. His Car badly damaged in the accident, he informed the same to the Police as well as to the Respondents Insurance Company. He got repaired the vehicle by spending an amount of Rs.80,528/-. He filed claim petition with all necessary records before the Respondents, but they shown their negligence in settling his claim and ultimately they repudiated his claim on untenable ground and thereby both Respondents are found guilty under deficiency in their services as such, he filed this complaint for the reliefs as noted in it.


3. The Respondent Nos.1 and 2 appeared in this case through advocate and Respondent No.2 filed Written Version and Respondent No.1 adopted the W.V. of Respondent No.2. The brief facts of W.V. of Respondents are that;
[

Vehicle Indica Car DLS bearing No.KA-35/P-194/TR/08-09 is a private Car of the Complainant comprehensively insured with Respondents Insurance Company and its validity is from 17.04.2008 to 16.04.2009 subject to the terms and conditions in it. On 28/04/2008 the said vehicle met with an accident while it was using for commercial purpose. Hence, the Complainant has violated the terms and conditions of Policy and thereby it rightly repudiated the claim of Complainant vide its letter dated: 05/06/2008. Surveyor was appointed, he assessed the loss and damage to the vehicle. The Complainant’s claim is without support of bills. There was no deficiency in service on their part. Accordingly, they prayed for to dismiss the complaint with cost.

4. In view of the pleadings of parties, now the points that arise for our consideration and determination are that;

1.
Whether the Complainant proves that while traveling by him in his Car bearing No.KA-35/M-6131 comprehensively insured with Respondents Insurance Company met with an accident on 28/04/2008 on public road, near Kappagal village, his car was badly damaged in the said accident, he informed to the Police as well as to the Respondents Insurance Company, he got repaired the vehicle, thereafter, he submitted claim petition with all relevant documents, but Respondents shown their negligence in settling his claim and ultimately his claim was repudiated on 05/06/2008 on untenable ground and thereby both Respondents found guilty under deficiency in their services towards him?

2.
Whether the Complainant is entitled for reliefs as prayed in this complaint?

3.
To what relief the Complainant is entitled for?

//POINTS//

5. Our findings on the above points are as under.

Point No.1:
In Affirmative.


Point No.2:
As discussed in detail in the body of this Judgment.


Point No.3:
In view of the findings on Point Nos.1 and 2, we pass the final order for the following;

//REASONS//

Point Nos.1 & 2: -


6. In order to prove the facts involved in these two points, the affidavit evidence of Complainant was filed, he was noted as P.W.1. Documents Ex.P.1 to Ex.P.12 are marked. On the other hand, the affidavit evidence of Manager-Legal of Respondents Insurance Company was filed, he was noted as R.W.1. Surveyor’s affidavit evidence was filed, he was noted as R.W.2. Documents Ex.R.1 to Ex.R.4 are marked. No Written Arguments filed by both parties.

7. In the instant case, ownership of vehicle of Complainant in question, comprehensive insurance of said vehicle with Respondents Insurance Company, general registration certificate of it and on 28/04/2008 it met with an accident, due to it the said vehicle badly damaged are all not in dispute between the parties. In the similar way, filing of claim petition by the Complainant with relevant records before Respondents Insurance Company is also not in dispute. Hence, documents Ex.P.1 to Ex.P.5 are need not required much appreciation.

8. Material document to decide the dispute in between the parties is Ex.P.9 which is repudiating letter by the Respondents Insurance Company addressed to the Complainant. In the said letter, the claim of Complainant was rejected on the ground that the said Car was used for commercial purpose.
9. In the light of such contention, the Respondents Insurance Company further contended that, the Complainant has violated the terms and conditions of Insurance Policy and thereby it justified in rejecting the claim of Complainant.

10. The learned advocate for Complainant contended that, on the said date, time and place of accident the Complainant was traveling in the said Car and thereby it was for his personal use as such, he not violated any terms and conditions of Policy. Hence, repudiating the claim by the Respondents Insurance Company is illegal.

11. To decide who is correct and who is wrong as contended by themselves, this Forum has referred a ruling reported in 2006 CTJ 793 (CP) (SCDRC) Tata AIG General Insurance Co. Ltd. Vs. B.Balasubramanian & Anr as a guideline to us. In the said ruling, their lordships of Hon’ble State Commission held as the burden is on the insurer to aver and to prove that insured has violated the terms and conditions of Policy.

12. In the light of principles of above said ruling, now we have to see as to whether Respondents Insurance Company has discharged its burden of proving the fact that, the Complainant has violated the terms and conditions of Policy. Admittedly, the Respondents averred in their Written Version that, the said vehicle was using for commercial purpose at the time of accident.

13. Now, what is the proof of such averments by the Respondents Insurance Company. The Manager-Legal of Respondents Insurance Company stated this fact in his affidavit evidence who is noted as R.W.1. RW.2 is Surveyors’ affidavit evidence is silent in this regard. Now the documentary evidences of Respondents are concerned, Ex.R.1 is the Policy schedule not relevant document in proving this fact. Ex.R.2 the copy of claim petition, Ex.P.3 the repudiation letter and Ex.R.4 the copy of Surveyor’s report which are also not relevant for deciding this contention of Respondents Insurance Company.

14. The Complainant himself stated in his affidavit evidence that he personally travelling in his car on the date of accident which supports document Ex.P.5 copy of FIR with copy of complaint that the Complainant was personally travelling in his car as on the said date, time and place of accident. There are no acceptable evidences from the side of Respondents Insurance Company to hold that the said vehicle was used for commercial purpose at the time of accident. Hence, the contention of Respondents Insurance Company is rejected as it is not supported by acceptable evidences, so the contention of Complainant is accepted.

15. Admittedly, there is a delay in settling the claim of Complainant by the Respondents Insurance Company. Invariably Insurance Company have to settle the claim of insured within three months, if there is delay in settling the claim on untenable grounds within the said period of three months then the said delay is amounting to deficiency in service on the part of Insurance Company. (2006 CTJ 1090 (CP) (NCDRC) Govind Rubber Ltd. Vs. United India Insurance Company).

16. In the light of observations of their lordships of Hon’ble National Commission, we come to conclusion that, the delay caused by the Respondents Insurance Company in settling claim of Complainant on the ground as noted in Ex.P.9 and Ex.R.3 without substance is amounting to deficiency in service on the part of Respondents Insurance Company to the Complainant. Accordingly, we answered Point No.1 in affirmative.

17. As regards to the reliefs as prayed by the Complainant are concerned, he claimed expenses of Rs.80,528/- incurred for repair of his damaged vehicle in a private show room. In support of this claim, he filed estimation copy Ex.P.6 prepared Bhagyodaya Motors, Hospet, Ex.P.7 reciept and Ex.P.8 tax invoice. On the other hand, the Respondents denied such claim of him. It relied on the affidavit evidence of R.W.2 and his report vide Ex.R.4. According to Survey report Ex.R.4 and his evidence R.W.2 total loss assessed by the Surveyor after inspection of the vehicle is to the extent of Rs.66,300/-.

18. In the light of these contentions, we have gone through the evidence of R.W.2 and his report Ex.R.4. Surveyors’ report shows that, the net loss recommended to the insured is of Rs.66,300/- which is after deduction of salvage value of Rs.2,110/-. Hence, there need not be second time deduction of Rs.2,110/- in the net amount of Rs.66,300/-. We are of the view that, placing reliance on affidavit evidence R.W.2 and his report Ex.R.4 is safe. The amount claimed by Complainant and net amount assessed by Surveyor is not much difference as such, we have accepted the affidavit evidence of Surveyor R.W.2 and his report Ex.R.4 and came to conclusion that, the Complainant is entitled for to recover an amount of Rs.66,300/- towards net loss sustained by him due to damage to his vehicle from the Respondents jointly and severally.

19. The second prayer of Complainant is for to grant an amount of Rs.1,00,000/- towards deficiency in service by the Respondents for non-settling his claim. No doubt, we have noticed the deficiency in service on the part of these Respondents towards the Complainant. But we are not satisfied with this claim of Complainant as it has no suffcinet and proper evidence to grant such abnormal amount under this head. As such, we are of the view that, granting an amount of Rs.3,000/- to the Complainant payable by these Respondents jointly and severally under this head is proper and reasonable amount. Accordingly, it is granted.


20. Another claim of Complainant is for to award an amount of Rs.50,000/- for his mental sufferings. We not found proper and sufficient evidence to accept it. Hence, it is rejected.

21. As regards to claim of Complainant towards cost of litigation is concerned, we have considered the entire case of Complainant and circumstances behind it and we come to a conclusion that, granting an amount of Rs.2,000/- to the Complainant towards cost of this litigation is proper and reasonable amount. Accordingly, that amount is granted to him.

22. Lastly, the Complainant prayed for to grant an interest @ 24% p.a .on the amount of Rs.80,528/-. There are no special circumstances out coming to grant such big rate of interest. We have taken note of entire claim of Complainant and other circumstances as evidenced and we came to a conclusion that, grating interest @ 9% p.a. on the above said total sum from the date of this complaint till realization of full amount will suffice to meet out the ends of justice. Accordingly, that rate of interest is granted. Hence, we answered Point No.2 accordingly.


Point No.3: -

23. In view of findings on Point Nos.1 & 2, we pass the following;

//ORDER//

The complaint filed by the Complainant is partly allowed with cost.


The Complainant is entitled to recover total sum of Rs.71,300/- (rupees seventy one thousand three hundred only) including cost from the Respondent No.1 and 2 jointly and severally.
The Complainant is entitled to recover interest @ 9% p.a. on Rs.71,300/- from the date of this complaint i.e. 02/02/2009 till realization of full amount from the Respondent Nos.1 and 2 jointly and severally.



The Respondent Nos.1 and 2 jointly and severally are hereby granted two months time from the date of this Judgment for to make the payment of total sum and interest as stated above to the Complainant.

C. F. CASE NO.-CC/38/2008.

PETITIONER =Vs. = O.P
Uttam Ghosh, S/o Sanod Ghosh, 1) ICICI Lombard Gen. Ins. Co. Ltd.
Bolpur Trisulapatti, Po & PS-Bolpur, Apejay House, 7th, 8th & 4th floor,
Birbhum. Block-D, 15 Park St. Kol-16.
2) ICICI Lombard Gen. Ins. Co. Ltd.
Citi Plaza Bldg., City Centre
Durgapur, Sayed Khudiram Sarani
Dist. Burdwan. (3rd Floor)
Durgapur-16
3) City Motors, Suri Rabindra Pally,
Auth. Agent of ICICI Gen. Ins.
Co., PO & PS-Suri, Birbhum.

PRESENT:-Shri S.K. Roy ----------- President.
:- Shri M.K. Pal -----------Member
:- Smt.Bula Koley -----------Member

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

Dated: 02.04.2009
In short the complaint case is that the complainant has a vehicle “TATA SUMO” (Registration number not mentioned). Said vehicle was insured with the opp. Parties vide policy no. 3001/53395958449/00/000(period of insurance not mentioned). Said vehicle met with a road traffic accident (Date of accident not mentioned) at Burdwan near CAMRY hospital and damaged. He lodged a G.D.E. with Burdwan P.S. vide M.A case no.22/08 dt. 9/6/08. He preferred claim before the OP-2 on the basis of the assessment of the loss assessor appointed by the OP but the claim has been repudiated. Hence this case.
The Opp. parties contested the case by filing a written version wherein they have taken a few legal objection, denied all the material allegation made in the petition of complaint and has stated that the complainant has violated the terms and conditions of the Insurance which was a “private car package policy” and used this vehicle for hire and reward, so the claim has been repudiated. The case merits dismissal.
To prove the complaint case the complainant alone sworn and file an affidavit on evidence and a few documents marked exts.1 to 4. On the other hand one Mrs. Banhea Ray sworn and file a counter affidavit and a document marked ext. A to substantiate the defence case.
Contd…/2

-::2::-

Points for consideration are:-

1)Is the case bad for defeat of parties?
2)Has there any deficiency in service on the part of the opp. Parties?
3)Is the complainant entitled to the reliefs prayed for?

D E C I S I O N S

Points No.1 to 3:- All the points are taken up together for the sake of convenience brevity.
From the written version, counter affidavit. On evidence filed by the opp. Parties and the argument advanced by the Ld. Lawyer for them the financer of the vehicle should be impeded in this case as the vehicle has been pledged with the financer. So as per the rules and regulations of the OP ICICI Lombard vide caption – “IMT.7 – vehicles subject to endorsements hypothecation Agreement” from the extract of Indian Motor Tariff and has drawn my attention to said endorsement which runs as follows:-
It is hereby declared and agreed that the vehicle insured is pledged to/hypothecated with ……………………….(hereinafter referred to as the “pledgee”) and it is further understood and agreed that the pledgee is interested in any monies which but for this Endorsement would be payable to the insured under this policy in respect of such laws or damage to the vehicle insured as cannot be made good by repair and/or replacement of parts and such monies shall be paid to the pledgee as long as they are the pledgee of the vehicle insured and their receipt shall be a full and final discharge to the insurer in respect of such loss or damage.
But the policy certificate does not say so. Moreover there is no material in the record whether the loan amount has been repaid or not. The payment in terms of the above endorsement may be made to the pledgee when the vehicle is not repairable otherwise not. Herein this case the vehicle has been repaired. As such I am of the view that there is no defeat of parties in this case.
As regard deficiency in service it is learnt from the materials on record and the argument of the Ld. Lawyers that the complainant no where in the petition of complaint has stated the validity period of the insurance and the number of the vehicle which was insured and the date on which the accident took place. I do not find any pleading or evidence about the date on which the accident was intimated to
Condt…/3.

-::3::-

the insurer and the date on which surveyor Santunu Kundu was appointed and on what date he inspected the vehicle. Even there is no assessment certificate issued by any such assessor Santunu Kundu. There is also no pleading and evidence about the date on which the complainant preferred his claim. It is well settled that the burden lies upon him, who wants to assert something. So, the complainant has to prove the facts I have stated above which is lacking. But at the same time it is to keep in mind that the facts admitted need not be proved.
In this case, the opp. Parties have admitted the happening of accident, issue of insurance policy for the vehicle, preference of claim for repair of the vehicle, but has not admitted the appointment of any surveyor named Santunu Kundu. Rather has stated that one Asok Kumar Khanuja inspected the vehicle and assessed the loss (Ext. A). Said Asok Kr. Khanuja assessed the loss at Rs.23374/- only. While the complainant has claimed an amount of Rs.58093/- against the assessment of Rs.72472/- made by Santunu Kundu. But in absence of any reliable and cogent evidence such claim of Rs.58093/- can not be acceeded to.
The opp. Party has repudiated the claim on the ground of violation of the terms and conditions of the policy by using the vehicle for hire and reward. Unfortunate to say that there is no iota of evidence to prove such an allegation. Accordingly I am unable to accept this plea. Having no cogent reason and proof thereof for the alleged violation of the terms and conditions of the plea the insurer was deficient in its service to the customer/consumer by not disbursing the assessed amount of loss as assessed by his appointed surveyor Asok Kr. Khanja.
In view of my above discussions the complainant is entitled to the assessed amount of Rs.23374/- for loss caused to the vehicle and for harassment by not allowing the assessed amount the complainant is entitled to compensation and I think that an amount of Rs.2000/- towards compensation will meet the ends of justice together with the above amounts litigation cost of Rs.500/- should be allowed.
The points are answered accordingly. In the result the complaint succeeds in part on contest against the opp. Party ICICI Lombard General Insurance Co. Ltd. and dismissed against the OP no.3.


Contd…/4.

-::4::-

Fees paid are correct.
Hence, it is
Ordered
That the complaint is allowed in part on contest against the Insurance Co. i.e. ICICI Lombard General Insurance Co. Ltd.
The complainant is allowed Rs.23374/- towards the loss for repair of the vehicle, Rs.2000/- as compensation and Rs.500/- as litigation cost.
The Op Insurance Co. is directed to pay the awarded amounts within 30 days of this order failing which the amounts shall carry interest @ 10% p.a. after the expiry for 30 days till payment. The case is dismissed against the OP no.3.

Consumer complaint No.82/07
Date of presentation: 28.3.2007
Date of decision: 10.4.2009

Rahul Sharma son of Jeevan Lal Sharma resident of village and PO Boda, Tehsil Palampur, District Kangra (HP)

Complainant

Versus

1 ICICI Lombard General insurance Company Ltd. ICICI Towers Bandra-Kurla Complex, Mumbai 400051 through its Manager
2. Shri Baldev Raj & Sons (Auto Division) authorised Dealer Hero Honda motors ltd. Palampur (HP)-176061
3. Sh. Rajesh kumar, Surveyor, ICICI, Insurance company Navy House Industrial Area, Nagrota Bagwan, District Kangra

Opposite parties

Complaint under section 12 of the Consumer Protection Act, 1986

PRESIDENT: A.S.JASWAL
MEMBERS PABNA SHARMA & PARDEEP DOGRA


For the complainant: Sh. Manu Bharti, Advocate
For the opposite Party No.1: Ms. Rajni Katoch, Advocate
For O.P. No.2 Sh. Vishal Katoch, Advocate
O.P.No.3 already exparte

ORDER

A.JASWAL, PRESIDENT (ORAL)

Briefly stated, the case of the complainant is that he is a registered owner of Motor Cycle ( Hero Honda) bearing registration No.HP-37-A-4620 and that the same was got insured with opposite party No.1. It is asserted that during the subsistence of the Insurance Policy, the said Motor cycle had met with an accident on dated 14.4.2005 at Palampur. Upon this, opposite party no.1 was accordingly informed. On its advice, he got the motor cycle repaired from opposite party No.2 and paid Rs.2348/- and Rs.1999/- respectively. Thereafter, after completing necessary formalities, he submitted his claim before opposite party no.1, but it failed to settle the same and thus committed deficiency in service.


2. The case of the complainant has been resisted and contested by the opposite party No.1 by asserting that there is no deficiency in service on the part of the answering opposite party. Since, the complainant has failed to file insurance Policy or its number before the opposite party, the answering opposite party is not liable to pay anything to the complainant. The other averments have been denied.


3. The opposite party no.2 by filing its reply has asserted that the vehicle of the complainant has been repaired and a sum of Rs.4357/- has been charged from him as per bill. Opposite party No.3 did not appear before the Forum, and was proceeded against exparte.


4. This Forum on 12.3.08 framed the following points for determination:-
1. Whether O.P committed deficiency in service, as alleged? OPC
2. Whether the complaint is not maintainable, as alleged? OPOPs

3. Final order

4. For the reasons to be recorded hereinafter while discussing points for determination, our findings on the aforesaid points are as under:-
Point No.1: Partly in affirmative
Point no.2: No
Relief: The complaint is partly allowed as per operative part of the order.

REASONS FOR FINDINGS
POINTS No.1 and 2

5. Both these points are inter connected and inter linked, hence are taken up together for determination, in order to avoid repetition in discussion and for the sake of brevity. Learned counsel for the complainant has argued that the opposite party No.1 has failed to settle his claim till date and thus committed deficiency in service.

6. On the other hand, the learned counsel for the opposite party No.1 has argued that since the complainant has not submitted the copy of insurance Policy or number thereof, the opposite party No.1 is not liable to pay anything to the complainant. Learned counsel for the opposite party No.2 has argued that the opposite party no.2 had only repaired the vehicle and is not liable to pay anything to the complainant.

7. To appreciate the arguments of the learned counsel for the parties, the entire record available on the file was gone into in detail. The complainant has filed his affidavit, Ex.CW1, in which he has re-counted the averments as made in the complaint. From the material on record, it stands proved that during the subsistence of the Insurance Policy, the motor cycle of the complainant had met with an accident and for the repair of the same, he had incurred a sum of Rs.4367/-. We are of the view that the opposite party No.1 was under legal obligation to pay the said amount to the complainant, but it failed to pay the same. The, aforesaid act of the opposite party No.1, in our considered view, tantamounts to great deficiency in service.

8. The only plea of the opposite party No.1 is that the complainant has failed to supply the copy of Policy or number thereof, is rejected being devoid of any force. The complainant has placed on record; copy of cover note issued by the opposite party No.1, Annexure C-1, but the opposite party No.1 did not opt to consider the case of the complainant, even during the proceedings of the present complaint. We are of the view that since the opposite party no.1 is providing public utility services, they cannot deny the genuine claim of the complainant. Thus, the opposite party No.1 has committed deficiency in service. So far as opposite parties no.2 and 3 are concerned, the complainant has not adduced any cogent and convincing evidence to prove that they have also committed deficiency in service.


9. Now, how this deficiency can be cured? We are of the view that the ends of justice will be met, in case the opposite party No.1 is directed to pay Rs.4367/- to the complainant within 30 days after the receipt of copy of this order. Due to deficiency in service, the complainant has also suffered mental pain, agony and inconvenience and the ends of justice will be met in case the opposite party no.1is directed to pay compensation, which is quantified at Rs.2000/-. Hence, point no.1 is answered partly in affirmative.

12. No other point argued or urged.


Relief


13. In view of our findings on point No.1 above, the complaint is partly allowed and we order the opposite party No.1 to pay Rs.4367/- to the complainant within 30 days after the receipt of copy of this order, failing which it will carry interest @ 9% per annum from the date of complaint, till its realization. The opposite party no.1 is also directed to pay compensation to the tune of Rs.2000/- coupled with litigation costs of Rs.1500/-. The complaint against opposite parties no.2 and 3 is dismissed

Complaint Case No.226/ 2008
Date of Institution 26-8-2008
Date of Decision 30-4-2009


Baldev Singh son of Sh.Lachman resident of village and Post Office Kummi, Illaqua Balh, Tehsil Sadar, District Mandi, H.P.

…Complainant


V/S

ICICI Lombard General Insurance Ltd Home Finance Co. Ltd Chaman Commercial complex ,Seri Bazar, Mandi Town , H.P. through its Branch Manager.

…..Opposite party


For the complainant Sh.Mahesh Chopra, , Advocate
For the opposite party Sh. Sandeep Bhardwaj, Advocate

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

ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party .The case of the complainant is that he is registered owner of vehicle No. HP-32-1703 ( Tata Mobile-207) which was insured with the opposite party vide insurance policy No.3003/53392469/00/B00 for the period from 28-1-2008 to 27-1-2009. It has been alleged that the said vehicle met with an accident within the insured period and intimation of the accident was also given to the opposite party well in time . The vehicle was damaged in the accident. The opposite party had deputed a surveyor for inspection of the vehicle at the site of accident and for assessment of the damage . After inspection of the vehicle , the complainant had removed the vehicle from the site of the accident to the workshop at Nerchowk/ Lunapani for necessary repair. The complainant spent Rs.35,000/- for repair and replacement of the parts of the vehicle and submitted all the bills to the opposite party for settlement of the claim, but the claim has been repudiated by the


Opposite party vide letter dated 25-7-2008 wrongly and unlawfully on mis- understanding and mis-appreciation of documents as also on the ground of invalid license . The complainant had alleged that the repudiation of the claim is on flimsy reasons and amounts to unfair trade practice The complainant had further alleged that he has suffered mental torture and harassment and claimed R.10,000/- in lump sum besides a sum of Rs.35,000/- spent on repair. On these facts , the complainant has filed the present complaint.


2. The opposite party resisted the complaint and raised preliminary objections that there is no deficiency in service on its part , that the complaint is not maintainable and that the complainant is guilty of mis- representation and suppression of the material facts . On merits , the complainant has admitted the insurance of the vehicle in question . The opposite party has also admitted that after receipt of information of the accident of the vehicle , it had deputed Surveyor to make survey and assess the loss. The surveyor has assessed the loss subject to terms condition, limitations and exception of the insurance policy to the tune of Rs.10,600/-. The opposite party had denied that the vehicle was inspected by the surveyor at the site of the accident and in fact he surveyed the vehicle at M/S Shivam Denting and Painting , Bhangrotu. The complainant had misrepresented and suppressed the material facts by stating that the report has been prepared at site of accident . It had been denied that the vehicle was inspected at the site of the accident. It has been averred that the repudiation of the claim is legal .The opposite party had prayed for dismissal of the complaint.


3 We have heard the ld. counsel for the parties and have carefully gone through the record. As per the registration certificate adduced in evidence by the complainant the vehicle in question is a light goods vehicle. According to the complainant the vehicle was being driven by him at the time of the accident and has also filed his own driving license and the perusal of which shows that it was issued on 12-10-2004 by Motor Licensing Authority Mandi and was valid to drive light motor vehicle ( non transport) up to 15-8-2019. The driving license of Sh. Baldev Ram complainant was also endorsed for driving light motor vehicle , Transport with effect from 12-12-2008. However, the accident had taken place on 2-7-2008. Hence complainant Baldev Singh who was on the wheel of the vehicle at the time of the accident was only authorized to drive light motor vehicle , non transport as per driving license filed by him . The opposite party i.e. the insurance company had repudiated the claim of the complainant on the ground that aforesaid driving license possessed by the complainant/ driver was not a valid driving license as according to the opposite party since the vehicle in question is light goods vehicle, it falls under the category of “transport vehicle” as per Motor vehicles Act ,1988. and driving license possessed by the driver was not endorsed to drive transport vehicle.


4 Now the question which arises for consideration by this Forum is as to whether the complainant/ driver was holding a valid and effective driving license at the time of the accident. As discussed hereinabove , the vehicle was being driven by Baldev Singh complainant and he was only authorized to drive light motor vehicle ( non transport) at the time of the accident . At this stage, it would be relevant to refer to the definition of the transport vehicle as defined in section 2(47) of the Motor Vehicles Act,1988 which reads as under:-
(47) “ transport vehicle” means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.


5 As per the registration certificate, the vehicle in question is a “light goods vehicle” .Since it is a goods vehicle therefore , according to section 2(47) of the Motor Vehicles Act,1988, it falls under the category of a
“ transport vehicle”. As per section 3 of the Motor Vehicles Act,1988 , a specific endorsement is necessary on the driving license for driving a transport vehicle. However, there is no such endorsement on the driving license of the complainant


Sh. Baldev Singh that he was authorized to drive transport vehicle at the time of the accident .

In a case titled
as New India Assurance Co. vs Prabhu Dayal 2008(1)CPC-239 heavy transport vehicle met with an accident and damaged and person driving the vehicle was holding license to drive light motor vehicle only and not heavy transport vehicle. The Hon’ble Apex Court in that case held that the driver was not competent to drive heavy transport vehicle in the absence of valid driving license in view of sections 2,10,15 and 27 of the Motor Vehicles Act 1988 . Para No.29 and 33 of the aforesaid judgment reads as under:-

“ 29.We find considerable force in the submission of the learned counsel for the insurance company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under clause (47) of section 2 of the Act. Section 3 , therefore required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram, Narain was allowed to ply transport vehicle. On the contrary the case of the complainant was that it was Mohd Julfikar who was driving the vehicle. To us , therefore the District Forum was right in holding that Ram Narain could not have driven the vehicle in question.
………………………………………………………..
33 In the present case all the facts were before the District Forum. It considered the assertion of the complainant and defence of the insurance company in the light of the relevant documentary evidence and held that it was established that the vehicle which met with an accident was a transport vehicle. Ram Narain was having a licence to drive Light Motor Vehicle only and there was no endorsement as required by Section 3 of the Act read with Rule 16 of the Rules and Form No.6. In view of necessary documents on record , the insurance company was right in submitting that Ashoke Gangadhar does not apply to the case on hand and the insurance company was not liable.”


6 In a recent judgment the Hon’ble Apex court in the case titled Oriental Insurance Co. Ltd vs Angad Kol and others 2009(2)418 Recent Apex Judgments , a goods carriage vehicle met with an accident causing death of a lady and its driver was possessing driving license to ply light motor vehicle only. The Hon’ble Apex court had held that the driver did not held a valid and effective driving license for driving a goods vehicle Relevant portion of para No.10 of the order is reproduced herein below:-

“The distinction between a “light motor vehicle” and
“transport vehicle” is therefore evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same a distinct licenses is required to be obtained . The distinction between a “transport vehicle “ and passenger vehicle can also be noticed from section 14 of the Act. Sub section (2) of Section 14 provides for duration of a period of three years in case of an effective license to drive a transport vehicle where as in case of any other license , it may remain effective for a period of 20 years .

In the present case also the vehicle is admittedly a goods vehicle and it falls under the category of a “transport vehicle”. Sh. Baldev Singh complainant who was on the wheel of the vehicle at the time of accident was only authorized to drive light motor vehicle ( non transport ) as per driving license adduced by the complainant himself and in the absence of specific endorsement on the driving license to drive “ transport vehicle” it cannot be said that he was having a valid and effective driving license at the time of accident and we hold that the repudiation of the claim of the complainant by the opposite party is genuine and it does not amount to deficiency in service .


7 In view of the legal position and in view of what has been discussed hereinabove, the complaint fails and the same is hereby dismissed with no order as to costs

Before the District Consumer Disputes Redressal Forum, Mandi, H.P.

Complaint Case No.87 /2008
Date of Institution 27-3-2008
Date of Decision 30-4-2009


Vina Thakur wife of Sh. Hem Raj resident of village Aut, District Mandi, H.P. through her General Power of attorney Sh. Hem Raj son of Sh. Kishori Lal resident of village Aut, Post Office Aut, District Mandi,



…Complainant

V/S

ICICI. Lombard General Insurance Company Ltd Sahib Complex of Ist Floor Plot No.118/9 College Road , Mandi District Mandi, H.P.

…..Opposite party

For the complainant Sh. Mayur Parkash Sharma, Advocate
For the opposite party Sh Amar Singh . Thakur, Advocate

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

ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that she is the registered owner of ( SKT-1613 Turbo ) vehicle bearing registration No. HP-66-7400 as per the registration certificate and permit Annexures C-1 and C-2. The complainant averred that she being simpleton lady could not prosecute the complaint and authorized her husband Sh. Hem Raj vide General Power of attorney dated 11-2-2008. The complainant had insured the said vehicle with the opposite party with effect from 29-3-2007 /31-3-2007 to 28-3-2008 as per insurance cover note Annexure C-3 in the sum of Rs.9.89 lacs. It had been averred that on 24-11-2007 at about 8.30 AM aforesaid truck ,met with an accident at village Bharas , Tehsil Chachiot at Gohar which was firstly gazed by local resident at 7 AM on 24-11-2007 and reported the matter to the police at Gohar and first information report was recorded. Thereafter the matter was investigated by the police and during investigation it came to notice that the vehicle was driven at the relevant time by Sh. Hari Singh son of Sh. Devi Singh who had run away from the place of accident taking undue advantage of night hours and thereafter challan has been constituted under section 279 and 304-A IPC against Sh. Hari Singh . First information report and investigation report are annexure C-4 and C-5. The matter was reported to the opposite party and documents were also submitted to it. The opposite party had appointed Surveyor for investigation who has recorded the statement at his own in the letter pad of the husband of the owner of the vehicle under the garb of settlement of the claim and got signed without explaining the statement in Hindi as the husband of the owner is under middle and does not know English. That the vehicle was under the Hire Purchase agreement with ICICI bank being Financer and monthly instalment at the rate of Rs.23,550/- has regularly been paid up to November 2007 right from the date of the purchase i.e. March 2007. The complainant has averred that due to accident of the vehicle and non settlement of the claim, instalment could not be deposited and vehicle has been delivered to the ICICI Bank as per their directions to their registered office at Dehar on 27-12-2007 and the Financer had issued pre sale notice dated 8-1-2008 to the complainant owner . The complainant alleged that she had submitted all the documents to the opposite party but despite that the insurance company is denying the indemnity on unreasonable , arbitrary and illegal grounds which amounts to deficiency in service as well as unfair trade practice . On 12-2-2008 the opposite party was served with legal notice but the same was not responded . That the cause of action had accrued to the complainant on 24-11-2007 and thereafter on 29-1-2008 on which date the claim has been repudiated illegally and arbitrarly. On these allegations, the complainant had sought a direction to the opposite party to pay Rs. Rs.9,99,000/- alongwith interest at the rate of 15% per annum till date .


2. The opposite parties resisted the complaint by raising preliminary objections that the complaint is not maintainable and sustainable in the eyes of law , that the complainant has violated the terms and conditions of the insurance policy and as such the complainant is having no insurable interest and that the complainant has not come with clean hands before this Forum .On merits , the opposite party had admitted the contents of the complaint to the extent of accident of the vehicle and lodging of First Information Report It has been denied that Sh. Hari Singh was driving the vehicle at the time of accident and in fact Sh. Bhag Singh alias Prema son of Sh. Birbal Ram who died in the above accident was driving the vehicle but since he was not holding valid and effective driving license , the complainant in connivance with the police officials has later on manipulated the story and shown one Sh. Hari Singh as driver of the vehicle only to grab the insurance amount . The opposite party had averred that the surveyor has recorded the statement of husband of the complainant as per his actual and factual version which was further explained to him . It has been averred that the complainant had violated the terms and conditions of the insurance policy and in view of this fact the complainant is not liable to be indemnified by the opposite party. The opposite party had prayed for dismissal of the complaint


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


4. We have heard the ld. counsel for the parties and have carefully gone through the record. Be it stated that the opposite party has not denied the factum of insurance of the vehicle in question and its accident. The opposite party had also not denied that the information in this respect was given to it by the complainant and it had appointed surveyor to assess the loss caused to the vehicle in question. It is a matter of record that one Sh. Bhag Singh @ Prema son of Sh. Birbal died in the accident . According to the complainant the vehicle was being driven by Sh. Hari Singh at the time of accident whereas according to the opposite party the vehicle was being driven by Sh. Bhag Singh and since he was not possessing valid and effective driving license to drive the vehicle the claim of the complainant was repudiated on this ground alone . On analyzing the rival submissions as well as the material available on record the short controversy needs redressal in this complaint is as to whether the opposite party has rightly repudiated the insurance claim lodged by the complainant on the ground that the vehicle was being driven by Sh. Bhag Singh and not by Sh. Hari Singh as alleged by the complainant.


5 The onus to prove that Sh. Bhag Singh @ Prema was driving the vehicle at the time of accident and the same was not being driven by Sh. Hari Singh lies on the opposite party. In this respect , the opposite party had placed reliance upon investigation report of Sh.A.P. Singh which is undated . As per the insurance company it had deputed Sh.A.P.Singh G.I.C. Claim Investigator to carry out investigation with respect to the accident in question who in his report concluded that the insured had planted Sh. Hari Singh as driver in place of Sh. Bhag Chand alias Prema who might not be having valid driving license to drive the category of vehicle in question . According to the Investigator , he had conducted thorough investigation at the spot of accident near Bheraj and also conducted discrete enquiries from the residential area of the insured and from the Police Station Gohar. He is also stated to have recorded the statements of husband of the complainant Sh. Hem Raj and one Sh. Khime Ram Office Secretary Truck Union Aut . Photostat copies of aforesaid statements have also been placed on record alongwith first information report No.155/2007 dated 24-11-2007, of Police Station Gohar U/S 279,304-A IPC .We have carefully scrutinized the report of the Investigator Sh.A. P. Singh and ,in our opinion, the same cannot be relied upon being un-supported by any cogent evidence on record . It was incumbent upon the opposite party to have proved all the facts which are alleged in the report of the investigator, however it has failed to do so. No affidavit of the investigator has been adduced in evidence . Moreover investigation report is unsupported by the affidavits of persons on the basis of whose statements report was prepared . The Investigator had only recorded the statement of witnesses but had failed to procure their affidavits and in the absence of the affidavits of these persons this forum is not satisfied as to whether these statements were actually given by them . Moreover, the husband of the complainant Sh. Hem Raj had filed affidavit dated 22-7-2008 before this Forum wherein he has deposed that the opposite party had appointed surveyor for investigation who recorded his statement in English in his letter pad under the garb of settlement of the claim and got signed without explaining the statement in Hindi as he is under Middle and does not know English and the act and conduct of the opposite party’s surveyor is quite unfair , arbitrary and also amounts to misrepresentation and a legal notice dated 12-2-2008 had also been served upon the opposite party explaining each and everything regarding recording of statement by the Investigator . Therefore, in view of the affidavit filled by the husband of the complainant , the opposite party should have filed counter affidavit of the Investigator to show that he recorded his statement out of his own free will but the same has not seen the light of the day . Therefore , also the report of the investigator cannot be relied upon . The ld. counsel for the opposite party further contended that in the First Information report also it has been recorded that one Sh. Bhag Singh was driving the vehicle at the time of accident and therefore the opposite party was right in repudiating the claim of the complaint . However, this submission of the ld. counsel for the opposite party is devoid of any force because after recording the first information report , the matter was thoroughly investigated by the Police and during investigation they came to know that the vehicle was being driven by Sh. Hari Singh son of Sh.Devi Singh . The complainant has also placed on record photocopy of charge sheet filed under section 173 Cr.P.C. against Sh. Hari Singh in the court of Ld. SDJM Gohar . The perusal of the charge sheet shows that the police had carried out the investigation with respect to the accident in question and their investigation revealed that at the time of the accident Sh. Hari Singh was driving the vehicle in question. The charge sheet has been filed by Investigating agency of the State in the discharge of its official duty and nothing has been shown by the opposite party as to why the police officers in the discharge of official duty would file charge sheet against a person who was not driving the vehicle at the material time . Moreover the investigation carried out by the police officials cannot be ignored because they are the first ones to have reached the spot and gathered information. The case of the opposite party is that the complainant has manipulated the story later on in connivance with the police officials to show that Sh. Hari Singh was driver of the vehicle . However, no material has been placed on record by the opposite party to prove this fact. No
other evidence to the contrary has been filed by the opposite party in support of their case that Sh. Bhag Chand was driving the vehicle at the time of accident . Therefore in view of the above facts and circumstances of the case it would not be improper to conclude that Sh. Hari Singh was driving the vehicle in question at the time of the accident . The complainant has also placed on record driving license of Sh. Hari Singh Annexure C-6. No evidence has been filed by the opposite party to show that aforesaid driving license possessed by Sh. Hari Singh is invalid. Hence in our opinion the opposite party has repudiated the insurance claim illegally and arbitrarily which act and conduct on the part of the opposite party is gross deficiency in service.


6 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by her due to accident of the vehicle. The complainant in her complaint had claimed insurance sum which is Rs.9.89,000/-.On the other hand the opposite party has placed on record Motor Interim Surveyor report of Sh. Mohinder K Sharma dated 14-12-2007 which depicts that the estimated loss was Rs.9,91,705 and indemnity assessed was to the tune of Rs.6,47,774/-which is payable subject to the terms and conditions of the policy . No final survey report has been placed on record by the opposite party. There is no other concrete material on record regarding
the assessment of the loss caused to the vehicle . The complainant had also not adduced any satisfactory evidence contrary to the report of Surveyor . Hence this forum is left with no other alternative except to take into consideration the interim survey report of Sh. Mohinder K Sharma 14-12-2007 for the assessment of the loss caused to the vehicle in question .Moreover the aforesaid report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons. The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kiran Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle is at Rs.6,47,774.80 paise on repair basis


7 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.6,47,774.80 paise alongwith interest at the rate of 9% p.a. from the date of filing of the complaint till realization to the complainant .The opposite party is further directed to pay Rs.5,000/- as compensation on account of harassment and Rs.2000/- as costs of litigation.

Before the District Consumer Disputes Redressal Forum, Mandi, H.P.

Complaint Case No.241/2008
Date of Institution 6-9-2008
Date of Decision 30-4-2009

Sharifa Bibi w/o Safar Ali village Masar Post Office Shivabadar Tehsil Sadar, District Mandi, H.P.



…Complainant


V/S

ICICI Lombard General Insurance Ltd through its Manager ,C/0 Sahib Complex Ist Floor Plot No.118/9 College Road, Mandi, H.P.
…..Opposite party


For the complainant Sh. Bhupinder Singh , Advocate
For the opposite party Sh. Sandeep Bhardwaj, Advocate

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

ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party .The case of the complainant is that he was owner of buffalo which was got insured with the opposite party vide policy No. 4057/0000098 and tag No 145594 Annexure C-1 for the period from 21-3-2008 to 20-3-2008. During the currency of the policy, the buffalo died at Shivabadar . The complainant reported the matter to the Veterinary Hospital Shivabadar and post mortem of the dead animal was conducted there. It has been averred that the matter was thereafter reported to the opposite party for settlement of the claim and all the requisite documents were also supplied. It has been alleged that the opposite party has repudiated the claim vide letter dated 12-8-2008 Annexure C-2without any reasonable ground . The complainant has alleged that the repudiation of the claim is arbitrary, without application of mind and amounts to unfair trade practice as well as deficiency in service on the part of the opposite party. On these facts , the complainant has sought a direction to the opposite party to pay Rs.15,000/- , the assured sum of the cattle with interest at the rate of 12% PA from the date of death and also to pay Rs.5500/- as litigation charges and Rs.5000/- as compensation.


2. The opposite party resisted the complaint and raised preliminary objections that there is no deficiency in service on its part , that the complaint is not maintainable that the opposite party has insured the cattle subject to certain limitations , exceptions and conditions and if these terms and conditions are not complied with ,the insured is not entitled for any compensation, that negligence is one of the exceptions and the same is not covered under the policy of insurance, that the claim has been repudiated after having given a deep thought to it, that the animal had died in an accident i.e. falling from a cliff while leaving the buffalo for grazing and it was the duty of the owner to keep the animal away from the cliff and the owner was negligent while leaving the buffalo for grazing . Also it was the duty of the insured to make better arrangements to feed the animal in tough circumstances . On merits , it has been admitted that the cattle was insured with it and rest of the allegations have been denied . It has also been averred that the matter has not been forthwith reported to the Doctor Veterinary Hospital Shivabadar. It has further been averred that the claim submitted by the complainant was rightly repudiated . It has been averred that no cause of action accrued in favour of the complainant to file the present complaint . The opposite party had prayed for dismissal of the complaint.


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


5. We have heard the ld. counsel for the parties and have carefully gone through the record of the case . It is admitted case of the opposite party that the animal in question was insured with it and it died during the currency of the insurance policy. The identity of the animal is also not in dispute . However , the claim of the complainant has been repudiated only on the ground that the animal died due to the negligence on the part of its owner as it died of an accident on account of falling from a cliff and it was the duty of the owner to keep the animal away from cliff .


6 Now the question which arises for consideration before this forum is as to whether the opposite party was justified in repudiating the claim only on this ground . The onus was upon the opposite party to prove that the animal died due to negligence on the part of its owner . The opposite party had placed reliance on the report of Veterinary Doctor Annexure R-5 and Annexure R-6, death certificate Annexure R-7 , post mortem report Annexure R-8 to prove its case wherein it has been recorded that the animal died because of “falling from height” However, in our opinion these documents are not sufficient to establish negligence on the part of the owner of the animal. In the aforesaid documents , it has only been recorded that the animal died due to falling from height . However , no material has been placed on record by the opposite parties to show that the owner of the cattle was negligent . It was incumbent upon the opposite party to place on record statements of witnesses or their affidavits to establish negligence on the part of the complainant but the same had not seen the light of the day. There is no concrete material on record on the basis of which it can be concluded that the complainant was negligent .In the absence of any evidence with respect to negligence on the part of the complainant, we have no hesitation to conclude that the complainant has proved that the opposite party had been deficient in providing service. As per the cover note Annexure C-1,the cattle was insured in the sum of Rs..15,000/- on 21-3-2008 with the opposite party. Hence the complainant is held entitled to Rs.15,000/- on account of death of the insured cattle.


7 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.15,000/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party is also directed to pay to the complainant Rs.2000 /- on account of compensation for harassment suffered by him due to deficiency in service and also to pay a sum of Rs.1500/- as costs of litigation.

Complaint Case No.240/2008
Date of Institution 6-9-2008
Date of Decision 30-4-2009

Jaina Bibi wife Barkat Ali village Masar, , Post Office Shivabadar Tehsil Sadar, District Mandi, H.P.



…Complainant


V/S

ICICI Lombard General Insurance Ltd through its Manager ,C/0 Sahib Complex Ist Floor Plot No.118/9 College Road, Mandi, H.P.
…..Opposite party


For the complainant Sh. Bhupinder Singh , Advocate
For the opposite party Sh. Sandeep Bhardwaj, Advocate

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

ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party .The case of the complainant is that he was owner of buffalo which was got insured with the opposite party vide policy No. 4057/0000098 and tag No 145590 Annexure C-1 for the period from 21-3-2008 to 20-3-2008. During the currency of the policy, the buffalo died at Shivabadar . The complainant reported the matter to the Veterinary Hospital Shivabadar and post mortem of the dead animal was conducted there. It has been averred that the matter was thereafter reported to the opposite party for settlement of the claim and all the requisite documents were also supplied. It has been alleged that the opposite party has repudiated the claim vide letter dated 12-8-2008 Annexure C-4 without any reasonable ground . The complainant has alleged that the repudiation of the claim is arbitrary, without application of mind and amounts to unfair trade practice as well as deficiency in service on the part of the opposite party. On these facts , the complainant has sought a direction to the opposite party to pay Rs.15,000/- , the assured sum of the cattle with interest at the rate of 12% PA from the date of death and also to pay Rs.5500/- as litigation charges and Rs.5000/- as compensation.
2. The opposite party resisted the complaint and raised preliminary objections that there is no deficiency in service on its part , that the complaint is not maintainable that the opposite party has insured the cattle subject to certain limitations , exceptions and conditions and if these terms and conditions are not complied with ,the insured is not entitled for any compensation, that negligence is one of the exceptions and the same is not covered under the policy of insurance, that the claim has been repudiated after having given a deep thought to it, that the animal had died in an accident i.e. falling from a cliff while leaving the buffalo for grazing and it was the duty of the owner to keep the animal away from the cliff and the owner was negligent while leaving the buffalo for grazing . Also it was the duty of the insured to make better arrangements to feed the animal in tough circumstances . On merits , it has been admitted that the cattle was insured with it and rest of the allegations have been denied . It has also been averred that the matter has not been forthwith reported to the Doctor Veterinary Hospital Shivabadar. It has further been averred that the claim submitted by the complainant was rightly repudiated . It has been averred that no cause of action accrued in favour of the complainant to file the present complaint . The opposite party had prayed for dismissal of the complaint.
4. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.
5. We have heard the ld. counsel for the parties and have carefully gone through the record of the case . It is admitted case of the opposite party that the animal in question was insured with it and it died during the currency of the insurance policy. The identity of the animal is also not in dispute . However , the claim of the complainant has been repudiated only on the ground that the animal died due to the negligence on the part of its owner as it died of an accident on account of falling from a cliff and it was the duty of the owner to keep the animal away from cliff .
6 Now the question which arises for consideration before this forum is as to whether the opposite party was justified in repudiating the claim only on this ground . The onus was upon the opposite party to prove that the animal died due to negligence on the part of its owner . The opposite party had placed reliance on the report of Veterinary Doctor Annexure R-7 and Annexure R-8, death certificate Annexure R-9 , post mortem report Annexure R-10 to prove its case wherein it has been recorded that the animal died because of “falling from height” However, in our opinion these documents are not sufficient to establish negligence on the part of the owner of the animal. In the aforesaid documents , it has only been recorded that the animal died due to falling from height . However , no material has been placed on record by the opposite parties to show that the owner of the cattle was negligent . It was incumbent upon the opposite party to place on record statements of witnesses or their affidavits to establish negligence on the part of the complainant but the same had not seen the light of the day. There is no concrete material on record on the basis of which it can be concluded that the complainant was negligent .In the absence of any evidence with respect to negligence on the part of the complainant, we have no hesitation to conclude that the complainant has proved that the opposite party had been deficient in providing service. It has not been denied by the opposite party that cattle was insured in the sum of Rs.15,000/- Hence the complainant is held entitled to Rs.15,000/- on account of death of the insured cattle.
7 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.15,000/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party is also directed to pay to the complainant Rs.2000 /- on account of compensation for harassment suffered by him due to deficiency in service and also to pay a sum of Rs.1500/- as costs of litigation.

Shobha Ram son of Sh. Kaul Singh resident of village Nehra , Post Office Pandoh, Tehsil Sadar, District Mandi, H.P.

…Complainant


V/S

ICICI Lombard, Mandi, Town , District Mandi, H.P. through its Branch Manager.

…..Opposite party


For the complainant Sh. Noor Ahmad, , Advocate
For the opposite party Sh. Sandeep Bhardwaj, Advocate

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

ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party .The case of the complainant is that he purchased a jersey cow in the month of February 2008 in the sum of Rs.10,000/-. The said cow was insured with the opposite party under master cattle insurance policy vide cover note No.0058212 valid w.e.f. 1-2-2008 to 6-2-2011. Tag No. 58512 was allotted to the insured cattle . On 21-5-2008 due to some unknown disease the cow died and post mortem of the said cow was conducted on 23-5-2008 by the Veterinary Doctor at 11.30 AM. Death of the cow was duly intimated to the opposite party . The complainant submitted all the documents to the opposite party including the ear tag which was allotted to the cow by the opposite party for early settlement of the claim. It had been alleged that the opposite party had repudiated the claim of the complainant illegally and value of the cow has also been reduced by the opposite party without application of mind as well without any rhyme and reason. The complainant had suffered mentally due to the act of the opposite party. On these facts , the complainant has sought a direction to the opposite party to pay Rs.10,000/- , the assured sum of the cattle with interest at the rate of 12% PA from the date of death and also to pay Rs.10,000/- as compensation , and also to pay costs of complaint at Rs.5,000/-.
2. The opposite party has resisted the complaint and raised preliminary objections that there is no deficiency in service on its part , that the complaint is not maintainable that the opposite party has insured the cattle subject to certain limitations , exceptions and conditions and if these terms and conditions are not complied with ,the insured is not entitled for any compensation, that negligence is one of the exceptions and the same is not covered under the policy of insurance, that the cattle died due to negligence on the part of the complainant as no treatment was given to the cattle under insurance . The disease which was diagnosed by the doctor is not an incurable disease and it is not such a disease which did not give time for the treatment . It has been averred that if the cattle had been treated in time it could have survived as the cattle fell ill on 16-5-2008 and died on 21-5-2008. No treatment was given to the cattle as per the post mortem report which shows negligence of the owner , that the complainant is guilty of suppression of material facts , that the complainant has misrepresented the facts and played fraud upon the opposite party simply to extract money from it and that the complaint is not maintainable as its contents are contradictory. On merits , the opposite party had denied the insurance of the cattle with it . The opposite party has denied the contents of para No.1 to 5 of the complaint in totality. The opposite party had prayed for dismissal of the complaint.
4. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.
5. We have heard the ld. counsel for the parties and have carefully gone through the record of the case . It is admitted case of the opposite party that the animal in question was insured with it and it died during the currency of the insurance policy. The identity of the animal is also not in dispute . However , the claim of the complainant has been repudiated only on the ground that the animal died due to the negligence on the part of its owner as no treatment was given to the animal .
6 Now the question which arises for consideration before this forum is as to whether the opposite party was justified in repudiating the claim only on this ground . The onus was upon the opposite party to prove that the animal

died due to negligence on the part of its owner . The opposite party had placed reliance on the photocopies of treatment certificate issued by Veterinary Doctor Annexure R-2 as well as post mortem report Annexure R-4 to prove its case wherein it has been recorded “no treatment was given to the animal. However, in our opinion these documents are not sufficient to establish negligence on the part of the owner of the animal. It was incumbent upon the opposite party to place on record the original treatment certificate as well as post mortem report and also the affidavits of the concerned veterinary Doctors who had issued the said certificates to establish that no treatment was given to the animal during the period of illness but the same had not seen the light of the day. There is no concrete material on record on the basis of which it can be concluded that the complainant was negligent in not giving treatment to the animal during the period of illness .In the absence of any satisfactory evidence with respect to negligence on the part of the complainant, we have no hesitation to conclude that the complainant has proved that the opposite party had been deficient in providing service. As per the cover note Annexure C-1,the cattle was insured in the sum of Rs.10,000/- on 7-2-2008 with the opposite party. Hence the complainant is held entitled to Rs.10,000 /- on account of death of the insured cattle.
7 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.10,000/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party is also directed to pay to the complainant Rs.2000 /- on account of compensation for harassment suffered by him and also to pay a sum of Rs.1,500/- as costs of litigation.

consumer case(CC) No. CC/08/187

Kiran Bala
...........Appellant(s)
Vs.

ICICI Prudential Life Insurance Co Ltd.

ICICI Prudential Life Insurance Co Ltd.
...........Respondent(s)

BEFORE:
1. Neena Rani Gupta
2. P.S. Dhanoa
3. Sh Sarat Chander


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


Kiran Bala W/o Sh.Raj Kumar Manchanda, Advocate, Sunam Road, Bhikhi, Tehsil and District Mansa ..... Complainant.


VERSUS


1.ICICI Prudential Life Insurance Company Limited, ICICI Pure Life Towers, 1089, Aapa Sahib Maratha Marg, Prabha Devi, Mumbai- 400 025.

2.ICICI Prudential Life Insurance Company Limited, Branch Water Works Road, Mansa through its Branch Manager. ..... Opposite Parties.


Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.A.P.S.Sidhu, Advocate counsel for the complainant. Sh.G.K.Mangla, Advocate, counsel for the opposite parties. Quorum: Sh.P.S.Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S. Dhanoa, President.

This complaint has been filed, by Smt.Kiran Bala wife of Sh. Raj Kumar Manchanda, a resident of Bhikhi, against ICICI Prudential Life Insurance Company Limited, Mumbai and Mansa, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act') giving them direction that they shall pay the damages in the sum of Rs.50,000/- to her for revocation of insurance policy and a sum of Rs.50,000/- on account of compensation for mental and physical harassment and litigation expenses


Contd........2 :


2 : in the sum of Rs.5000/- . 2. Briefly stated, the case of the complainant is that she has deposited a sum of Rs.25,000/- in cash with the opposite parties for issuance of two life insurance policies. The opposite parties issued Policy No.06771212 dated 22.11.2007 in the name of the complainant and deducted an amount of Rs.18843/- on account of premium, but refused to issue policy No.07343863. Vide their letter dated 17.1.2008 received by the complainant on 30.4.2008, she came to know that the policy has been revoked by the opposite parties without assigning any reason. However, the opposite parties issued bank cheque in the sum of Rs.6157/- in the name of the complainant which was delivered to her by the Opposite Party No.2 on 30.4.2008. The said cheque was valid for a period of three months. The complainant served notice dated 21.4.2008 upon the opposite parties for payment of amount of 2nd policy bearing No.07343863 but the opposite parties have failed to take any action. The complainant again served notice vide letter dated 7.6.2008 upon the opposite parties for release of amount, but no action was taken by them even on said notice. The complainant also contacted the Opposite Party No.1 on telephone and sent him email. Due to the inaction on the part of the opposite parties and non-refund of the amount, the complainant could not invest the same in other policy and was deprived of use of the amount, as such, there is deficiency in service on the part of the opposite parties because of which she has been subjected to mental and physical harassment. Hence this complaint.



3. On being put to notice, opposite parties filed written version, resisting the complaint, by taking preliminary objections; that the complainant is not a consumer, under them, within its definition, given in the Act, because her proposal and issuance of policy, has been rejected by the opposite parties, for her omission, to subject her to medical examination and that the complaint, being false and vexatious, is liable to


Contd........3 :


3 : be dismissed. On merits, it is admitted that complainant submitted the proposal for issuance of insurance policies vide her application dated 12.11.2007 on her own life under the “Company's Life Time Super Pension Plan” of insurance launched by the opposite parties for payment of sum of Rs.3 lacs as assured amount. It is submitted that the amount deposited by the complainant in the sum of Rs.6157/- on account of first premium was accepted by the opposite parties with the rider that the same will be accepted provided she undergoes medical examination required for processing the same, but she failed to undergo the additional tests because of which her proposal was rejected and amount deposited by her was sent through cheque dated 16.1.2008 vide letter dated 17.1.2008 addressed to the complainant, through the Opposite Party No.2, but she did not encash the same within the period of its validity. The opposite parties again sent her cheque dated 24.4.2008 in the same manner and in the same amount, but the said cheque was again not encashed by the complainant. The complainant failed to encash even the third cheque dated 8.11.2008 sent by the opposite parties. As such, there is no deficiency in service on their part and complaint is liable to be dismissed. The factum of issuance of policy No.06771212 under the “Company's Life Time Super Pension Plan” dated 22.11.2007 against deposit of premium in the sum of Rs.18843/- had been admitted by the opposite parties, but it is submitted that so far as policy in question is concerned, complainant cannot claim the same on account of her omission for not subjecting herself to medical examination and to encash the cheques sent for payment by the opposite parties. Rest of the averments, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.


4. On being called upon by this Forum, to do so, the complainant tendered his affidavits, Exhibits C-1 and copies of documents Ext.C-2 to C-10 before closing evidence. On the other hand, learned counsel for the opposite parties has tendered in evidence, copies of documents, Ext.OP-1


Contd........4 :


4 : to OP-7, and closed evidence, on their behalf.


5. We have heard the learned counsel for the parties and gone through the oral and documentary evidence, adduced on record, by them, carefully, with their kind assistance.



6. At the out set, learned counsel for the opposite parties Sh.G.K.Mangla, Advocate, has submitted that as the proposal of the complainant, has not been accepted for issuance of policy No. 07343863, as such, she is not consumer under the opposite parties within the purview of its definition given in the Act, and her complaint is bound to fail on this technical ground alone.


7. Learned counsel for the complainant Sh. A.P.S.Sidhu, Advocate, has submitted that as the amount has been accepted alongwith the application form by the opposite parties, as such, the complainant has become their consumer, of the insurance policy, which the opposite parties have not issued in arbitrary manner, as such, complaint is maintainable in the present form.


8. We find merit in the argument advanced by the learned counsel for the complainant because the opposite parties in their written version have admitted that complainant filed application for issuance of insurance policy under the “Company's Life Time Super Pension Plan” launched by them and deposited the amount of initial premium. As such, in our opinion, even if, the offer made by the complainant is rejected by the opposite parties, because of any omission on her part, she falls within the ambit of Consumer because word 'service' defined in Section 2(1)(o) of the Act also includes “Potential Consumer”.


9. Learned counsel for the complainant has further submitted that opposite parties have not sent any list of doctors on their panel so as to enable, the complainant to approach them and to subject herself for medical test and cheques were sent by them through Opposite Party No.2 after expiry of dates of their validity with the intention to harass the


Contd........5 :


5 : complainant, as such, there is deficiency in service on the part of the opposite parties because of which she has been deprived of her right to invest the money in other policy and to make use of the same. Learned counsel further argued that even the opposite parties are also not justified in rejecting the claim of the complainant without affording her opportunity of being heard, as such, they cannot escape the liability to pay damages and costs to her.


10. On the other hand, learned counsel for the opposite parties has submitted that offer made by the complainant was rejected by the opposite parties after she failed to subject herself for additional medical test inspite of repeated instructions issued to her and she has failed to get the cheques sent to her encashed, as such, there is no deficiency in service on their part or on account of which opposite parties be burdened with costs and compensation, as prayed in the instant complaint.

11. As stated in the earlier part of the order, the factum of submission of proposal form for issuance of policy under the “Company's Life Time Super Pension Plan” and deposit of amount of Rs.6157/- by the complainant on account of initial premium, is admitted by the opposite parties in their written version. As per copy of letter dated 10.11.2008, Ext.OP-7 addressed to the complainant, policy for issuance of which she submitted the proposal form was subject to fulfillment of requirements and terms and conditions of the scheme, as applicable from time to time. It is also provided therein that she should note that insurance cover would be effective only after the policy is issued. She was also issued refund cheque bearing No.011425 dated 8.11.2008 in the sum of Rs.6157/-, copy of which form part of Ext.OP-7. In letter dated 22.11.2007 Ext.OP-2, written to the complainant, she has been advised to approach Dr.Sat Paul Jindal, whose complete address of Mansa has been given therein. As such, we find merit in the case of the opposite parties that there is no deficiency in service on their part, so far as rejection of her claim to issue policy No.

Contd........6 :


6 : 07343863, is concerned.

12. However, the opposite parties have acknowledged the receipt of letter sent to the complainant informing them that she was unable to encash the cheques sent by them on account of refund of amount of Rs.6157/- because they were delivered to her after expiry of period of their validity. As admitted by the opposite parties in their written version, three cheques were sent to the complainant on account of refund of amount of initial premium paid to her, but they have not examined any official posted in their office. They are supposed to maintain the record, viz. date of receipts of the cheques by the complainant and mode of their dispatch to her. As such, they have withheld the material documents, supposed to be in their possession on account of which adverse inference has to be drawn against them to the effect that had they brought on record, they must have proved against them. They have submitted the affidavit of Ms. Reshmi Bhattacharya, Ext.OP-4. As mentioned therein, she is working as Consumer (Legal Manager) in their Bombay office. Even in the said document, nothing has been mentioned regarding the dates of delivery of the cheques by the official posted in the office of Opposite Party No.2. The dates of delivery of the cheques are also not found mentioned in the written version. On one occasion, the cheques have been issued as per letter dated 3.5.2008 Ext.C-3 due to stoppage of payment. Therefore, we are of the considered opinion that opposite parties are deficient in rendering service to the complainant, so far as refund of the amount deposited by her in the sum of Rs.6157/-, is concerned. There is no evidence that complainant has got encashed the third cheque issued by the opposite parties for refund of the amount or the said payment has been received by her in any other manner. It is also not the plea of the opposite parties that the said amount stands refunded to the complainant. She has been deprived of the use of money for considerable time, as such, she is also entitled to payment of interest at the rate of 9 percent per annum from


Contd........7 :



7 : the date of deposit till date of payment. Since, we are inclined to award interest, therefore, amount of compensation cannot be awarded to the complainant at the same time. Moreover, consumer is to be compensated for deficiency in service and not for remote damages suffered by her because of deficiency in service on the part of service provider. However, the complainant is entitled to seek adequate amount on account of filing of the instant complaint because opposite parties failed to settle her claim inspite of service of notices. 13. For the aforesaid reasons, we partly accept the complaint and direct the opposite parties to refund a sum of Rs.6,157/- to the complainant with simple interest at the rate of 9 percent per annum from the date of deposit till the date of payment with further direction to pay a sum of Rs.1,000/- on account of costs, incurred by her for filing of instant complaint, within a period of two months from the date of receipt of the copy of this order. The liability of both the opposite parties to make the above payment shall be joint and several.

C.C.No.79/2008

Between:

Gundabathula Vijay Kumar, S/o Adhinarayana Rao,
51 years, D.No.4-1-12 (2), Abbireddy Street, Amalapuram. ..Complainant.

A N D

1.I C I C I Lombord General Insurance Company Ltd,
I C I C I Bank Towers, Bhandra – Kurla Complex,
Mumbai, 400-051.
2.The Branch Manager, I C I C I Lombord General Insurance
Company Ltd, Ayappa Towers, 2nd floor, Subashan Road,
Opp Care Hospital, Suryaraopeta, Kakinada. ..Opposite parties.
This case is coming on 20.3.2009 .for final hearing before this Forum and upon perusing the complaint, and other material papers on hand and upon hearing the arguments of Sri K V S Surya Narayana, Advocate for the complainant and Sri Barla Srinivasa Rao, Advocate for the opposite parties and having stood over for consideration till this day, this Forum has pronounced the following.

O R D E R

(By Smt.H V Ramana, Member)
This is a complaint filed under section.12 of the Consumer Protection Act, 1986 by the complainant to direct the opposite parties to pay compensation of Rs.3,00,000/- and to award interest @24% P.A on Rs.21,260/- and to award costs.

2. The case of the complainant as set out in the complaint in brief is that, the complainant agreed to take health insurance policy from the opposite parties and also paid an amount of Rs.21,262/- on 6.10.2007 through cheque. The sum assured under the health insurance policy is Rs.3,00,000/- under plan F. To that extent the opposite parties issued an acknowledgment. As per his statement of account the above cheque was encashed by the opposite party on 12.10.2007, but the complainant did not received the policy. He emailed the opposite party on 4.12.2007 for non issuance of the policy. Even after the lapse of two months the opposite parties replied him that the policy is under process. Again the complainant emailed the opposite party and enquired about the policy and they gave a reply that they are investigating the policy details. The complainant submits that even inspite of several mails the opposite party failed to send the policy. The opposite party informed the complainant that they dispatched the policy bearing No.4034/FPA/02469452/00/000 on 31.1.2008. But, the complainant has not received the above said policy from the opposite parties. The complainant got issued a legal notice Dt.1.4.2008 to the opposite parties directing to send the policy immediately or in alternative for payment of Rs.3,00,000/- towards damages. Both the opposite parties received the same and addressed a letter to the complainant, stating that the proposal of the complainant does not meet the underwriting criteria of ICICI Lombord or return the cheque for Rs.21,262/-. This itself shows the carelessness of the opposite parties and it amounts to deficiency in service. Hence, the complaint.


3. The 2nd opposite party remained exparte and the 1st opposite party filed its written version denying all the material allegations made by the complainant. The opposite party submits that the policy business was outsourced to the private agency which is responsible to verify the eligible criteria of the proposals and all the E mail correspondence was done by the private agency. The proposal of the complainant has not accepted by this opposite party as it does not meet the underwriting criteria of the ICICI Lombord. It is a proposal from the complainant regarding the health insurance and it is not accepted by this opposite party and the contract has not been completed between the complainant and the opposite parties. The opposite parties have every right to reject or accept the proposal of the complainant. Since the proposal of the complainant has not accepted by this opposite parties, then there is no contract between the complainant and them. They also submits that there is no privity of contract between the complainant and this opposite party. Since the proposals does not meet the criteria of this opposite party, they returned the premium amount to the complainant and hence there is no deficiency in service and the complainant is not entitled for any damages and the complaint may be dismissed with costs.


4. Exs.A.1 to A.20 has been marked on behalf of the complainant and no documents reported on behalf of the opposite parties and no oral evidence has been adduced on either side.

5.Heard both sides.

6.The points that arise for consideration are:

1) Whether there is any deficiency in service on the part of the opposite
parties?
2) Whether the complainant is entitled for any relief, If so, to what
relief ?

7.POINT NO.1: The Admitted facts in the case are that the complainant issued a cheque for Rs.21,262/- drawn infavour of the 1st opposite party Dt.6.10.2007 for his health insurance policy. The opposite parties issued an acknowledgment under Ex.A.1. The complainant submitted that the above said amount is withdrawn by the opposite parties and the same is reflected in his statement of account i.e Ex.A.2. The complainant contended that even after two months of the payment of premium the opposite parties failed to issue the policy for which the complainant gave a mail under Ex.A.3 and for which the opposite parties gave a reply stating that the policy is under process. The said reply has been marked under Ex.A.4 and A.5. The complainant gave a reply to Ex.A.5 vide Ex.A.6. The opposite parties also gave mails under Exs.A.7,A.8, A.9 and A.10 to the complainant. The complainant got issued another mail to the opposite party under Ex.A.11 and the opposite parties gave a reply to the complainant by informing the policy number and the same was dispatched vide Exs.A.12. and A.13. When the complainant did not receive the policy from the opposite parties, he gave another mail to the opposite parties vide Ex.A.14 and got issued a legal notice vide Ex.A.15. The opposite parties wrote a letter stating that non-acceptance of health insurance policy of the complainant and it is marked under Ex.A.18. The complainant got issued another notice to the opposite parties and it has been marked vide Ex.A.19.

The complainant contended that he opted for health insurance and paid an amount of Rs.21,262/- by way of cheque to the opposite parties. He further contended that the opposite parties failed to send the policy even after giving number of representations. He further contended that the opposite party gave mails stating that they dispatched the policy under Ex.A.13 and A.12 and they wrongly misguided him by giving such mails. The opposite parties failed to do their service even after encashing the cheque by sending the policy and the same amounts to deficiency in service on their part.

The opposite party contended that they entrusted the policy business to a private agency which is responsible to verify the eligible criteria of the proposals and all the email correspondence was done by the private agency. The proposals of the complainant was not accepted by the opposite parties as it does not meet the under criteria of ICICI Lombard and the proposal form of the complainant was not accepted by them and the contract has not been completed between the complainant and this opposite party. The opposite parties have every right to reject or accept the proposal of the complainant. The proposal of the complainant is not accepted by the opposite parties, hence there is no contract between the complainant and the opposite parties and there is no privety of contract between them, hence there is no deficiency in service on their part. The opposite party further contended that the complainant requested them to return the premium amount and the same was returned to the complainant vide Ex.A.18.

Under the above circumstances there can be no question of any contract of health insurance policy being agreed to be entered into by the opposite parties. The opposite parties also addressed a letter to the complainant under Ex.A.18 explaining their inability to give health insurance policy to the complainant as the proposal does not meet the underwriting criteria of ICICI Lombard. The mere receipt of premium and delay in giving an answer cannot be construed as an acceptance, as prima-facie, acceptance must be communicated to the offeror. The general rule is that the contract of insurance will be concluded only the part to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making an offer. Refusal to accept the offer which was in good faith does not amounts to deficiency in service. Therefore, subject to the above observation, the complainant is not entitled for any relief.

COMPLAINANT


BY-SRI. N. PRAKASH,
SRI. H.M.RAJESH,
ADVOCATES, BELLARY.

//VS//

M/S BELLARY AUTOMOTIVES BY ITS
PARTNER R. K. NAGARAJ,
S/O CHENNAIAH, D.No.1F,
OPP: BSAL, ANANTHAPUR ROAD,
BELLARY.
RESPONDENTS



BY-SRI.B.VENKATESWARA-
PRASAD, ADVOCATE,
BELLARY.


1. THE MANAGER,
ICICI LOMBARD GENERAL
INSURANCE CO. LTD. , 2ND FLOOR,
PRESTAGE CORNICHE, 62/1,
RICHMOND ROAD, BANGALORE – 25.

2. THE MANAGER,
ICICI LOMBARD GENERAL INSURANCE
CO. LTD., MAYURA COMPLEX, 1ST
FLOOR, DOUBEL ROAD, BELLARY.

//JUDGMENT//

This is the complaint filed by Complainant R.K.Nagaraj Partner of M/s Bellary Automotives, Bellary against Respondent Nos.1 and 2 ICICI Lombard General Insurance Co .Ltd. under Sec-12 of C.P. Act for to direct the Respondents to pay an amount of Rs.75,000/- towards expenditures incurred by him for repair of his damaged vehicle in the accident, to award an amount of Rs.50,000/- for the loss sustained by him due to accident, to award an amount of Rs.20,000/- towards mental agony, frustration suffered by him due to accident and for non-settling his claim, to award an amount of Rs.2,000/- towards cost of this litigation with interest and other reliefs as deems fit to the circumstances of this case.

2. The brief facts of the Complainant’s case are that;

The tractor Mahindra bearing Engine and Chasse No.NCTW 10606 trade certificate No.KA-34/TC-13/04-05 was dispatched on 02/04/2007 from stockyard of Mahindra & Mahindra Ltd., Dharwad. The said vehicle was comprehensively insured with Respondents Insurance Company and its validity period is from 16/08/2006 to 15/08/2007. While coming the said vehicle on NH-63 on 03/04/2007 near Shanbag Hotel, Gadag it met with an accident. Police complaint was given and informed the fact of accident to the Respondents Insurance Company. Surveyor was appointed by the Respondents who inspected the damaged vehicle and all its documents and he submitted his report to the Respondents Insurance Company. The Complainant got repaired it and filed claim petition with relevant records, but Respondents Insurance Company not settled his claim on untenable grounds inspite of repeated oral and written requests. Hence, this complaint was filed by him for the reliefs as prayed in it.


3. The Respondent Nos.1 and 2 appeared in this case through their advocate, but not filed their Written Versions inspite of sufficient time granted to them.

4. In view of the facts and circumstances stated above, now the points that arise for our consideration and determination are that;

1.
Whether the Complainant proves that, his newly purchased Mahindra Tractor bearing Engine and Chasse No.NCTW 10606 which comprehensively insured with Respondents Insurance Company met with an accident on 03/04/2007 at 8.00 a.m. on NH-63 near Shanbag Hotel, Gadag, it badly damaged in the said accident, he filed police complaint and informed the same to the Respondents, thereafter, Respondents appointed Surveyor who inspected the damaged vehicle and records of vehicle and submitted his report to the Insurance Company, he got repaired the said vehicle by spending more than Rs.75,000/-, he filed claim petition along with necessary documents, but Respondents shown their negligence in settling his claim on untenable grounds even after oral and written requests and thereby both Respondents found guilty under deficiency in their services towards him?

2.
Whether the Complainant is entitled for reliefs as prayed in this complaint?

3.
To what relief the Complainant is entitled for?

//POINTS//

5. Our findings on the above points are as under.

Point No.1:
In Affirmative.


Point No.2:
As discussed in detail in the body of this Judgment.


Point No.3:
In view of the findings on Point Nos.1 and 2, we pass the final order for the following;

//REASONS//

Point Nos.1 & 2: -


6. In order to prove the facts involved in these two Points, the affidavit evidence of Complainant was filed, he was noted as P.W.1. Documents Ex.P.1 to Ex.P.43 are marked. The Respondents not filed their Written Version and not filed their affidavit evidences.

7. As regards to the ownership of Complainant over the said tractor, he filed Ex.P.1 Tractor Desptach Report of Mahindra & Mahindra Ltd. Ex.P.2 is the copy of Form-22 with regard to compliance with Pollution Standards & Road Worthiness. Ex.P.3 copy of F-Form. Ex.P.4 is the tax Invoice. Ex.P.5 is the trade certificate issued by RTO are supporting his ownership. As regards to the claim of Complainant as the said tractor comprehensively insured with Respondents Insurance Company, he filed copy of Insurance Policy Ex.P.6. To show that tractor was driven by valid and effective Driving Licence holder he filed Ex.P.8 copy of D.L. Ex.P.9 is check report-cum receipt issued by Traffic Police Station as the said tractor met with an accident. As regards to the claim of Complainant as he filed claim petition with necessary documents, he filed copy of it which is marked as Ex.P.10 and Ex.P.15.

8. Appointment of Surveyor by the Respondents Insurance Company who assessed the loss and damage to the vehicle is as per documents Ex.P.11 to Ex.P.14.

9. In view of unchallenged affidavit evidence of Complainant coupled with the above said documents, it is very much clear that, the Complainant has proved his ownership over the said tractor, it met with an accident while driving by the valid and effective D.L. holder which comprehensively insured with Respondents Insurance Company. Further it is proved fact that, the said tractor badly damaged in the accident and Surveyor was appointed who assessed the loss and damage to the extent of Rs.68,919/- vide Ex.P.14.

10. The Complainant has filed four bills Ex.P.16 and positive photographs of the damaged tractor Ex.P.17 to Ex.R.36. According to the submission made by the learned advocate for Complainant that, the Complainant incurred expenditure of Rs.75,000/- for repair of damaged tractor. In support of the said claim he relied on four bills Ex.P.16 and photographs Ex.P.17 to Ex.P.36.

11. The learned advocate for Complainant submitted that, vouchers produced by the Complainant are in proof of expenditure made for repair of damaged tractor. Hence, no further proof is necessary for to prove that he made an expenditure of Rs.75,000/- towards repair of the tractor. In support of this submission he relied on ruling reported I (2005) CPJ 285 National Insurance Co. Ltd. Vs. Lalta Ram.

12. The learned advocate for Respondents submitted that the facts and circumstances of the case referred by the learned advocate for Complainant are different to the facts and circumstances of this case and thereby he requested not to place reliance on the said ruling.

13. In view of the submissions made on both sides, we have gone the through the principles of said ruling. In the said ruling, their lordships of Hon’ble U.P. State Commission accepted bills of Complainant even though there was a Surveyor’s report. In Para No.3 of the said Judgment, it is stated as the Surveyor was rejected the bills of Complainant for spending of Rs.6,706/- even though bills produced before him. In that circumstances, their lordships held that the amount of Rs.6,706/- vide receipts produced by the Complainant before Surveyor should have not been discarded in his report.

14. Now coming to the facts of present case on hand. It is not the case of Complainant that he produced the bills regarding spending of Rs.75,000/- before the Surveyor, but Surveyor admitted his bills to the extent of Rs.68,919/- and discarded his bills for the remaining amount. Surveyor report Ex.P.14 discloses that he independently investigated the matter, assessed loss and damage to the vehicle and independently came to a conclusion that net loss will be at Rs.68,919/-. In the said circumstances, with great respect to their lordships of ruling referred above, we came to a conclusion that, the facts and circumstances discussed in the said ruling are different to the facts and circumstances of this case. We placed reliance and followed the principles of ruling reported in 2008 CTJ 580 (CP) (NCDRC) United India Insurance Co. Ltd. Vs. Smt. Maya and accepted the Surveyor report Ex.P.14.


15. It is a fact that inspite of claim petition and issuance of legal notice by the Complainant, the Respondents shown their negligence in settling his genuine claim and thereby both Respondents found guilty under deficiency in their services to the Complainant. Hence, we answered Point No.1 in affirmative.

16. As we have already discussed the principles of ruling referred by the learned advocate for Complainant and another ruling referred by us, we came to a conclusion that, it is proper to accept the amount shown by the Surveyor in his report Ex.P.14. The Complainant is entitled to recover that amount Rs.68,919/- which is rounded to Rs.69,000/- from the Respondent No.1 and 2 jointly and severally towards expenditure incurred by him due to repair of his damaged tractor in the said accident.

17. Another claim of Complainant is for to award an amount of Rs.50,000/- towards loss caused to him and Rs.20,000/- towards mental agony, inconvenience and frustration suffered by him. These two claims of Complainant are not supported by acceptable evidences. We have noticed the deficiency in service on the part of these Respondents to the Complainant by non-settling his claim as such, we are of the view that, awarding a lump sum of Rs.3,000/- under the head of deficiency in service is proper and reasonable amount as such, it is granted.

18. Another prayer of Complainant is for to award a sum of Rs.2,000/- towards cost of this litigation. This amount is proper and reasonable amount as such, it is granted.

19. The Complainant is entitled to recover future interest @ 9% p.a. on the above said total sum from the date of this complaint till realization of full amount. Accordingly, we answered Point No.2.


Point No.3: -

20. In view of findings on Point Nos.1 & 2, we pass the following;

//ORDER//

The complaint filed by the Complainant is partly allowed with cost.

The Complainant is entitled to recover total sum of Rs.74,000/- (rupees seventy four thousand only) including cost from the Respondent No.1 and 2 jointly and severally.
The Complainant is entitled to recover future interest @ 9% p.a. on Rs.74,000/- from the date of this complaint i.e. 02/02/2009 till realization of full amount from the Respondent No.1 and 2 jointly and severally.

The Respondent No.1 and 2 jointly and severally are hereby granted two months time from the date of this Judgment for to make the payment of total sum and interest as stated above to the Complainant.

COMPLAINANT


BY-SRI. B.THIMMA REDDY,
SRI. H. GOPAL REDDY,
ADVOCATES, BELLARY.

//VS//

SRI. G. GOPAL REDDY,
MANAGING TRUSTEE,
SWAMY VIVEKANANDA CHARITABLE
& SERIVCE TRUST,
NEAR LAKSHMI TVS SHOW ROOM,
1ST LINK ROAD, PARVATHI NAGAR,
BELLARY.
RESPONDENT



BY-SRI. B.VENKATESWARA-
PRASAD, ADVOCATE,
BELLARY.
THE BRANCH MANAGER,
M/S ICICI LOMBARD GENERAL
INSURANCE CO. LTD., DOUBLE ROAD, BELLARY.

//JUDGMENT//

This is the complaint filed by Complainant G.Gopala Reddy against Respondent ICICI Lombard General Insurance Co. Ltd. Bellary under Sec-12 of C.P. Act, for to award a sum of Rs.7,23,381/- for the expenditure incurred by him for repair of his damaged ambulance in the accident with interest, to award a sum of Rs.75,000/- towards deficiency in service, to award a sum of Rs.25,000/- towards mental shock and agony with other reliefs as deems fit to the circumstances of this case.

2. The brief facts of the Complainant’s case are that;

He being the owner and R.C. holder of ambulance vehicle bearing Regn.No.KA-34/A-419 comprehensively insured with Respondents Insurance Company met with an accident on 29/08/2008 and in the said accident his ambulance vehicle badly damaged. Thereafter, he intimated the fact of accident to the Police as well as to the Respondents Insurance Company. He got repaired the vehicle and thereafter he filed claim petition with necessary records and bills. The Respondents Insurance Company appointed Surveyor, inspected the damaged vehicle and he filed his report. But the Respondent shown its negligence in settling his claim inspite of repeated oral and written requests and thereby the Respondent Insurance Company found guilty under deficiency in its service towards him.


3. The Respondent Insurance Company appeared in this case through its Advocate, filed Written Version by admitting ownership of Complainant to the said vehicle, comprehensively insured with it, accident of it while Insurance Policy was in force and damage caused to the said vehicle. It contended that, the FIR lodged in this case discloses that on relevant date, time and place the ambulance of Complainant was carrying as many as twelve passengers excluding driver and it was plying for hire. Hence, the Complainant violated the terms and conditions of Policy. Further it is contended that, one Lakshmi Reddy who driven the said vehicle on the said, date and place was not holding valid and effective D.L. to drive it. Hence, his claim was repudiated vide its letter dated: 22/12/2008. It admitted the appointment of Surveyor and filing his report by assessing the damage and loss to the said vehicle. Hence, it was requested to dismiss the complaint among other grounds.



4. In view of the pleadings of parties, now the points that arise for our consideration and determination are that;

1.
Whether the Complainant proves that, his ambulance vehicle bearing Regn.No.KA-34/A-419 comprehensively insured with Respondent Insurance Company met with an accident on 29/08/2008 on NH-13 near Hanumanthadevara Kanive, in the said accident his ambulance badly damaged, he informed the same to the Police as well as to the Respondent Insurance Company, Surveyor was appointed by it assessed the damage and loss to the vehicle, thereafter, he got repaired his damaged vehicle and filed claim petition along with necessary records and bills, but Respondent Insurance Company shown its negligence and ultimately it repudiated his claim on untenable grounds and thereby Respondent Insurance Company found guilty under deficiency in its service towards him?

2.
Whether the Complainant is entitled for reliefs as prayed in this complaint?

3.
To what relief the Complainant is entitled for?

//POINTS//

5. Our findings on the above points are as under.

Point No.1:
In Affirmative.


Point No.2:
As discussed in detail in the body of this Judgment.


Point No.3:
In view of the findings on Point Nos.1 and 2, we pass the final order for the following;

//REASONS//

Point Nos.1 & 2: -

6. In order to prove the facts involved in these two points, affidavit evidence of Complainant was filed, he was noted as P.W.1. Documents Ex.P.1 to Ex.P.22 are marked. No Written Arguments filed. On the other hand, affidavit evidence of Manager-Legal of Respondent Insurance Company was filed, he was noted as R.W.1. Affidavit evidence of Surveyor & Loss Assessor was filed, he was noted as R.W.2. Documents Ex.R.1 to Ex.R.7 are marked. No written arguments filed.

7. In the instant case, the ownership of Complainant to the ambulance bearing Regn.No.KA-34/A-419, comprehensively insured of it with Respondent Insurance Company, accident met by it while Insurance Policy was in force as on the said date, time and place, damage to the vehicle, appointment of Surveyor, repairing of his damaged vehicle by him and filing claim petition before Respondent Insurance Company with relevant records and bills are all not in dispute between the parties.

8. In the instant case, the Respondent Insurance Company repudiated the claim of Complainant only on two grounds. The first ground of it is that, on 29/08/2008 at the relevant time and place the ambulance of Complainant was carrying as many as twelve passengers excluding driver and it was plying for hire, hence, the Complainant violated the terms and conditions of Policy with regard to use of said vehicle. The second ground of it is that, Complainant allowed one Mr. Lakshmi Reddy who was not holding valid and effective Driving Licence to drive the said ambulance. Hence, the Complainant violated the terms and conditions of Policy, more particularly Driver’s Clause hence, repudiated by it vide its letter dated: 22/12/2008 is valid and legal.


9. In support of these two contentions, the learned advocate for Respondent relied on the following rulings;

1.
Civil Appeal No.1102 of 2009 of Supreme Court of India. Oriental Insurance Co. Ltd. Vs. Angad Kol & Ors.

2.
2008 (1) TAC 401 (SC) New India Assurance Co. Ltd. Vs. Prabhu Lal.


3.
III (2008) CPJ 191 (NC) United India Insurance Co. Ltd. Vs. Arvind Kumar Rajak.

4.
AIR 2008 Supreme Court 2266 New India Assurance Co. Ltd. Vs. Roshanben Rahemansha Fakir & Anr.

1st ruling cited above deals with meaning of Light Motor Vehicle, Medium Goods Vehicle, Transport Vehicle, Light Goods Carriage Vehicle and Heavy Goods Vehicle and category of licence required to drive such classified vehicles.
In the ruling cited at Sl.No.2 their lordships of Hon’ble Supreme Court of India deals with a case in which the driver was holding a licence to drive LMV can also drive HMV.

In a case cited at Sl.No.3 the Hon’ble National Commission dealt a case regarding the driving Maxi Cab who holds licence to drive LMV. In the said case, the Hon’ble National Commission held Maxi Cab being transport vehicle, driving licence has to be duly endorsed - without endorsement, person holding LMV licence cannot ply transport vehicle.

In a ruling cited at Sl.No.4 the Hon’ble Supreme Court a case was dealt wherein the driver holding licence to drive three wheeler vehicle i.e. autorickshaw delivery van that does not mean to say that driver was holding valid and effective licence for to drive transport vehicle.

10. On going through the principles of rulings referred above, it is very much clear that, Driver of the ambulance bearing Regn.No.KA-34/A-419 by name Mr. Lakshmi Reddy was not holding valid and effective licence to drive the above said vehicle. Further admittedly as on the date of accident at relevant time twelve passengers were traveling in the said ambulance along with dead body of Khasa Doddappa Basappa to their native place, as such, with great respect to their lordships of rulings referred above, we are of the view that, the facts and circumstances discussed in each cases referred above are totally different to the facts and circumstances of the present case on hand. Admittedly, the present vehicle is an ambulance. The persons who were travelling in the said ambulance on the relevant date and time are might be relatives of deceased who were carrying dead body of Khasa Doddappa Basappa.

11. In the said circumstances, we have referred and followed the principles of ruling reported in 1993 BCR-(Cons)-2-44 Three Judges Division Bench of Hon’ble High Court of Bombay in a case Deorao M. Mendhule Vs. Manager, New India Assurance Co. Ltd. Midic Branch. In the said case, matador vehicle comprehensively insured with Insurance Company met with an accident while carrying dead body of Police constable - Insurance Company repudiated the claim of Complainant on the ground that Complainant violated the terms and conditions of Insurance Policy by carrying passengers more than permitted. In the said case, their lordships held as restriction to carry passengers is a rule when the vehicle is public carrier, the said vehicle was carrying dead body not for gain himself but on humanitarian ground his act was humanitarian act - under the said circumstances, their lordship held as rejection of claim of Complainant on technical ground is not justifiable – complaint allowed.

12. In the light of principles of said ruling, the Complainant of this case was allowed his ambulance to carry out the dead body of Khasa Doddappa Basappa to his native place along with his relatives who were more in than the required number of persons as per the permit and allowing driver Mr.Lakshmi Reddy to drive the ambulance even though he was not having valid and effective licence to drive the ambulance at that time are on humanitarian grounds which are prevailing over the technical grounds as pointed out by the learned advocate for Respondent Insurance Company. As such, the repudiating the claim of Complainant on such technical grounds under the facts and circumstances of this case are not justifiable grounds for the Respondent Insurance Company. Hence, it is clear case of deficiency in service on the part of Respondent for repudiating the claim petition. Accordingly, we answered Point No.1 in affirmative.


13. As regards to the reliefs of Complainant are concerned, he prayed for to direct the Respondent Insurance Company for to make payment of Rs.7,23,381/- towards cost for effecting repair of his ambulance. In support of this claim, the Complainant has filed estimation of repairs Ex.P.9 and bills Ex.P.10 to Ex.P.22.

14. In the instant case, the Respondent Insurance Company appointed Surveyor R.W.2 who assessed the loss and damage to the vehicle vide his survey report Ex.R.4. As per his report Ex.R.4 he assessed the net loss to the extent of Rs.2,15,276/-. By taking into consideration of his report Ex.R.4 and his affidavit evidence R.W.2 and considering the principles of ruling reported in 2008 CTJ 580 (CP) (NCDRC) United India Insurance Co. Ltd. Vs. Smt. Maya we have accepted the Surveyor’s report regarding the assessment and loss caused to the Complainant due to damages to his vehicle in the said accident to the extent of Rs.2,15,276/- for which Complainant is entitled under this head.

15. The second prayer of him is for to award an amount of Rs.75,000/- towards deficiency in service. This figure is not supported by any logical conclusions as such, we are of the view that, granting lump sum amount of Rs.3,000/- towards deficiency in service is proper and reasonable amount. Accordingly, it is granted.

16. The Complainant prayed for to award an amount of Rs.25,000/- towards mental shock and agony. This figure is also not supported by any base as such, this relief is rejected. As regards to the interest is concerned, the Complainant is entitled to recover future interest @ 9% p.a. from the date of this complaint till realization of full amount on the above said total sum. Accordingly, we answered Point No.2.


Point No.3: -

17. In view of findings on Point Nos.1 & 2, we pass the following;

//ORDER//

The complaint filed by the Complainant is partly allowed.


The Complainant is entitled to recover total sum of Rs.2,18,276/- (Rupees Two lakhs eighteen thousand two hundred and seventy six only) from the Respondent Insurance Company.

The Complainant is entitled to recover future interest @ 9% p.a. on Rs.2,18,276/- from the date of this complaint i.e. 01/01/2009 till realization of full amount from the Respondent Insurance Company.

The Respondent Insurance Company is hereby granted two months time from the date of this Judgment for to make the payment of total sum and interest as stated above to the Complainant.