Shri Inder Vikram Lal S/O Shri Shyam Lal, R/O Village Shallar, P.O. Nadpur Jehubal, District Shimla, H.P.


… Complainant.
Versus


1. Royal Sundaram Alliance Insurance Co Ltd.
46, Whites Road, Chennai-600014,
Regd Office 21, Patullos Road, Chennai-
600 002 through its Managing Director.

2. The Claims Officer,
Royal Sundaram Alliance Insurance Co Ltd.
46, Whites Road, Chennai-600 014.

…Opposite Parties

Coram

Shri Pritam Singh (District Judge) President.
Ms. Karuna Machhan, Member (Female)
Mr. Charanjit Singh, Member (Male)
………………………………………………………………………..

For the complainant: Mr. Jagat Pal, Advocate vice
Ms. Shilpa Sood, Advocate.

For the Opposite Parties: Mr. Sunil Goel, Advocate


O R D E R:
Pritam Singh (District Judge) President:-This order shall dispose of complaint filed under section 12 of the Consumer Protection Act, 1986. The brief facts as set in the complaint are that the son of the complainant Shri Vineet Kumar purchased a Maruti 800 car bearing registration No.HP-10-0963 from M/S Vipul Motors, Faridabad, which was duly insured with the OP-Company vide policy No. 00054446 dated 23.10.2002 effective from 23.10.2002 to 22.10.2003. It is alleged that later on this vehicle was transferred by his son in the name of the complainant on 13.11.2002. That earlier the vehicle met with an accident and was got repaired and the insurance claim was also preferred by him vide bill dated 06.03.2003, which was settled by OP who paid a sum of Rs.8,175/- to him through HDFC bank. It is further alleged by the complainant that the vehicle again met with an accident on 23.08.2003 and intimation about this accident was sent to the OP No.2 and FIR was also lodged at Police Station Theog. Thereafter, he lodged insurance claim with the OP-Company. But, the OP-Company instead of settling his insurance claim repudiated the same on the ground that there was no insurable interest on the date of accident interse the parties. Hence, feeling dissatisfied and aggrieved by the act of the OP-Company, he perforce filed this complaint against OP-Company.


2. The OP-Company while filing reply of complaint took some preliminary objections regarding maintainability of complaint, jurisdiction of Forum and status of the complainant as consumer etc. On merits, they alleged that the registration certificate of the vehicle in question was earlier in the name of one Shri Vineet Kumar and they had no information whether this vehicle was transferred in the name of the complainant on 13.11.2002. Hence, there was no privity of contract between the parties and there being no deficiency in service on their part, the complaint is sought to be dismissed. Thereafter, the parties led oral and documentary evidence in support of their claim/counter claim.


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


4. It may be stated that undisputedly the vehicle viz Maruti Car 800 bearing registration No.HP-10-0963 purchased by one Shri Vineet Kumar son of the complainant was duly insured with the OP-Company with effect from 23.10.2002 to 22.10.2003 as is evident from the copy of insurance cover note Annexure C-A placed on record and relied upon by the complainant. It is the case of the complainant that subsequently this vehicle was transferred by his son Vineet Kumar in his name on 13.11.2002. That earlier this vehicle met with an accident which was got repaired and the insurance claim was preferred by him vide bill dated 06.03.2003 and the OP-Company settled this earlier insurance claim and a sum of Rs.8,175/- was paid to him through HDFC Bank. That the vehicle again met with an accident on 23.08.2003 and he informed the OP No.2 about the same and FIR was also lodged at local Police Station. That the OP-Company also deputed surveyor to conduct the survey and assesses the loss who after visiting the site assessed the loss and advised him to get the vehicle in question repaired from M/S Motoworld Maruti Authorized Service Station, Nav Bahar, Shimla and he accordingly got the vehicle repaired by incurring expenditure of Rs.1,23,363/- and then preferred the insurance claim to this extent with the OP-Company. But, the OP-Company did not settle his genuine insurance claim.


5. The sole ground for repudiating the insurance claim of the complainant is that as the registration certificate of the vehicle in question was in the name of one Shri Vineet Kumar and the policy was issued in his name and that they had no information whether this vehicle stood transferred in the name of the complainant on 13.11.2002, therefore, as there was no privity of contract between the parties therefore the question of settling the insurance claim of the complainant does not arise as they are not legally liable to settle this insurance claim.

6. In this connection, it may be stated that the complainant has specifically alleged in para No.3 of complaint that after transferring the R.C. of the aforesaid vehicle in his name, it met with an accident and he got the vehicle repaired and preferred insurance claim with the OP-Company which was settled and a sum of Rs.8,175/- was paid to him by the OP-Company through HDFC Bank. In response to this para, the OP-Company in corresponding para 3 of reply denied whether they had earlier settled any insurance claim of the complainant after the transfer of the R.C. in his name on 13.11.2002. But, in this behalf it may be stated that the complainant had got issued legal notice to the OP-Company as is evident from the copy of notice Annexure C-C. In para 2 of this notice, it is specifically alleged that after transferring of the R.C. of the vehicle in question in the name of the complainant, it met with an accident and insurance claim was preferred on 06.03.2003 and a sum of Rs.8,175/- was paid to him by the OP-Company through HDFC Bank Delhi. In reply to this notice, the OP-Company in corresponding para 2 of the reply sent vide Annexure C-D clearly admitted that they had mistakenly paid the aforesaid sum to the complainant. But, alleged that such payment would not create any contract between the parties. Therefore, while sending reply Annexure C-D to the legal notice the OP has clearly admitted that they had made payment of Rs.8,175/- for the earlier insurance claim preferred by the complainant qua this vehicle, whereas in para No.3 of reply they have disputed this fact. Thus, it appears that the OP took different stand at different stage. In the circumstances, it can be safely presumed that they have knowledge that the R.C. of the vehicle stands transferred in the name of the complainant on 13.11.2002 that is why they settled the earlier insurance claim of the complainant by making payment of Rs.8,175/- to him through HDFC New Delhi on 06.03.2003. Hence, now it does not lie in the mouth of the OP-Company to say that as there is no privity of contract between the parties, therefore they are not bound to settle the present insurance claim of the complainant.


7. Moreover, undisputedly the vehicle was duly insured with the OP-Company vide insurance cover note Annexure C-A for a sum of Rs.2,11,411/- w.e.f. 23.10.2002 to 22.10.2003, which met with an accident second time on 23.08.2003 during the currency of the insurance policy. Besides this insurance cover note is not pertaining to personal accident policy of the owner of the vehicle. Therefore, if any loss is caused to the vehicle in accident during the currency of the insurance policy, the OP-Company is otherwise liable to indemnify the insured to the extent of losses sustained by the insured vehicle.


8. The complainant has alleged that at the advice of the surveyor appointed by the OP-Company, he got the vehicle repaired from authorized service station M/S Motoworld Maruti Authorized Service Station Nav Bahar Shimla by incurring sum of Rs.1,23,363/-. No doubt, the complainant has not placed on record the repair bills or copies thereof, but it has not been specifically disputed by the OP-Company that the complainant did not incur the aforesaid sum for repairing the vehicle in question from authorized service station because the loss of vehicle was not got assessed by the OP-Company from the independent surveyor and loss assessor. As such in the circumstances inference can be safely drawn that the complainant had incurred a sum of Rs.1,23,363/- by getting the vehicle repaired from authorized service station to make it road worthy. Therefore, we hold that the complaint is certainly entitled to be indemnified by the OP-Company to the extent of this amount.


9. For the foregoing reasons and discussion, we allow this complaint and direct the OP-Company (OPs No.1 & 2 jointly and severally) to indemnify the complainant to the extent of a sum of Rs.1,23,363/- alongwith interest at the rate of 9% per annum from the date of filing of the complaint, i.e. 13.07.2004 till making full payment of the aforesaid amount. The litigation cost is quantified at Rs.1500/- payable by both the OPs to the complainant. This order shall be complied with by both the OPs within a period of forty five days after the date of receipt of copy of this order.

C.C.No.20/2008

Between:
Jangam Ravindra Prasad,
S/o. Abraham, Hindu,
50 years, Business,
R/o. D.No.49-6-46/1, Subbaraopeta,
Nehru Nagar, Rajahmundry. ... Complainant.

A N D

1. Royal Sundaram Alliance Insurance Co. Ltd.,
Rep. by its Manager, Sundaram Towers,
45 & 46, Whites Road, Chennai.

2. State Bank of India,
Rep. by its Sr.Branch Manager,
Near Kambala Tank, Rajahmundry. ...Opposite parties.
This case is coming on 17.04.2009 for final hearing before this Forum and upon perusing the complaint, version of the opposite parties and other material papers on hand and upon hearing the arguments of Sri K.V.S.S.Prabhakar Rao, advocate for the complainant and of Sri P.L.N.Prasad advocate for the 1st opposite party and Sri P.V.Raghavarao, advocate for the 2nd opposite party and having stood over for consideration till this day, this Forum has pronounced the following.

O R D E R

(By Sri A.Madhusudana Rao, Member)
The complainant filed this complaint under section.12 of C.P.Act, 1986 to direct the opposite parties to pay Rs.1,00,000/- with interest @ 24% p.a from the date of repudiation till realization towards insurance amount and to award costs of this complaint.
2. The brief averments made in the complaint are that the complainant s the husband of the deceased Smt Vara Grace Bai who had opened and operated an SB account with 2nd opposite party herein vide A/c.No.011900-till her death and availed credit card facility from the 2nd opposite party.The said credit card holders as well as their family members were under coverage of Insurance with the 1st opposite party on payment of Rs.1,514/- towards premium for the said insurance coverage.The deceased availed credit card facility in the year 2006 and paid insurance premium to the 1st opposite party accordingly received insurance certificate vide No. HS.00104697000100 for Rs.1,00,000/-,which is valid from 18.9.2006 to 17.9.2007.
While things stood like thus the deceased Vara Grace Bai died on 19.5.2007 in the Government Headquarters Hospital and the complainant under shock grief due to sudden tragic death of his wife observed morning for more than six months and during his time submitted claim form to the 1st opposite party to settle the claim under the above said policy. The 1st opposite party replied on 24.8.2007 and denied to settle the claim as the claim was not submitted with in 30 days. The conduct of the opposite parties comes under deficiency of service and the complainant had suffered mental agony due to denial of claim under the policy by the 1st opposite party. Hence, this complaint.
3. The 1st opposite party insurance company filed its version contending that the averments made in the complaint are not true and correct and they are not maintainable under law. It is submitted that the deceased and her family members took Health Shield insurance policy No.HS 00104697000100 for Rs.1,00,000/- and the policy was in force from 18.9.2006 to 17.9.2007 and the policy was issued subject to specific terms and conditions as stipulated in the policy. It is admitted that the deceased insured was admitted for treatment of Sodalities in District Govt. Hospital, Rajahmundry from 17.5.2007 to 19.5.2007 and the complainant made a claim as the deceased died on 19.5.2007 with in a short period of obtaining policy. This opposite party repudiated the complainant’s claim vide their letter Dt.24.8.2007 after thorough investigation and the repudiation is proper and valid.
The 1st opposite party in its additional version submitted that the relevant excerpt from the claim form which is reproduced hereunder as;
MEDICAL CERTIFICATE FORMING PART OF HEALTH SHIELD CLAIM FORM
Name of the patient – Smt Vara Grace Bai.
AGE – 54 years.
Date of admission – 17.5.2007.
Date of discharge – 19.5.2007.
Why was the patient admitted ? – Limbo – Sacral Spondlitis.
Diagnosis – Limbo – Sacral Spondilitis.
Please give previous medical history of the patient – Bachache,
Spondilitis since 2 years.
It is further submitted that after examination of the medical documents pertaining to the deceased that the ailments of the insured i.e spondilitis was preexisting since, whereas the policy was in force only for 5 months. It is hereby submitted that the preexisting disease is specifically excluded from the terms and conditions of the policy. The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of-
1.Pre-Existing condition:- Such conditions which have been in existence at the time of proposing this insurance. Pre-existing condition also means any sickness or its symptoms, which existed prior to the effective date of this insurance, whether or not the insured person had knowledge that the symptoms were relating to the sickness. Complications arising from pre-existing disease will be considered part of that pre-existing condition.
It is further submitted that the insured was admitted on 17.5.2007 and was discharged on 19.5.2007 and as per the policy terms claim documents were to be submitted within 30 days after discharge from the hospital. Whereas, the claim form was submitted to us on 22.8.2007 i.e after 3 months of the discharge from the hospital. Without prejudice to the above said facts (supra) it is denied that the hospitalization expenses by insured is Rs.1,00,000/-, since the insured took treatment in District Government hospital at Rajahmundry for free of cost and now the complainant is trying the foist a wrong liability make unlawful gain from this opposite party.
Conditions:
Claims Procedure-
Please ensure that you sent the clam from duly completed in all respect along with all respect along with all the following documents within 30 days from the date of discharge from hospital.
-Original bills, receipts and discharge certificate/card from the hospital.
-Original cash memos from hospital/chemist supported by the propor
prescription.
-Original receipt and pathological test reports.
It is submitted that complainant has misconstrued the policy terms by making a claim for sum insured without showing any bills or receipt for the said amount, which the policy patently provides for claiming any sum the insured has to produce bills and receipts. It is hereby submitted that the complainant without submitting the claim form and other original claim documents and receipts within 30 days has breached the terms and conditions of the policy.
It is submitted as the claim fell out side the scope of the policy; the opposite party repudiated the claim of the complainant. Hence, there is no deficiency of service on the part of this opposite party.
4. The 2nd opposite party filed its version denying the main and material allegations in the complaint as they are not true and correct and the complaint is not maintainable either in law or on facts. The deceased opened an account with this 2nd opposite party at whines and fancies and there is no link for opening the account with the 2nd opposite party that the customer should take the insurance cover from the 1st opposite party. The allegation of payment of premium amount of Rs.1,515/- to the 1st opposite party does not relate or in consultation with this 2nd opposite party. This opposite party never encouraged to take insurance cover from the 1st opposite party and there is no involvement in this issue and nothing can be attributed with this opposite party. Further, it is submitted that the claim is time barred and no permission was given by the Honourable Forum and the complainant never informed the death of his wife to this opposite party and no notice was served on this opposite party. Hence, this opposite party submits that the HOnourable Forum may be pleased to dismiss the complaint against this opposite party with costs.
5. Heard both the parties. Both parties filed their written arguments.
6. Points to be considered in this case are that;

1. Whether there is any deficiency in service on the part of the opposite
parties?
2. Whether the complainant is entitled for the claim amount and other
reliefs asked for? If so, to what extent?
6. Exs.A.1 to A.8 were marked on behalf of the complainant and Ex.B.1 to B.5 were marked on behalf of the opposite parties.
7. Admitted facts in this case are that the complainant’s deceased wife opened savings bank account vide No.011900-23190 with the 2nd opposite party and under Medisafe insurance coverage vide policy No.HS00104697000100 from the 1st opposite party for Rs.1,00,000/- vide Ex.A.2=B.1. The deceased policy holder died on 19.5.2007 vide Ex.A.4. After the death of the deceased policy holder the complainant preferred claim with the 1st opposite party vide Ex.A.6=B.2. The 1st opposite party repudiated the claim of the complainant vide their letter 24.8.2007 under Ex.B.5=A.7.
8.POINT NO.1: The case of the complainant is that his deceased wife obtained health shield insurance policy from the 1st opposite party herein being the credit card holder of the 2nd opposite party. While so, the deceased took treatment in the Govt. Head Quarters Hospital, Rajahmundry from 17.5.2007 to 19.5.2007 and died on 19.5.2007 in the said hospital. As such, the complainant preferred claim with the 1st opposite party for Rs.1,00,000/- as the deceased died during the currency of the said policy and the 1st opposite party repudiated the claim as the claim was not submitted within 30 days from the death of the deceased, which amounts to deficiency in service on the part of the opposite parties.
Whereas, the 1st opposite party insurance company contended that after receipt of claim application they perused the medical records pertaining to the treatment undergone by the insured was for a preexisting disease as admitted by the Govt. physician i.e the treating Dr R V Pruthviraj, in the claim form submitted by the complainant as that ailment i.e spondilities was existing since past 2 years and all preexisting diseases are excluded under the policy terms issued to the deceased insured and who was suffering from the ailment of spondilities and back ache for past 2 years though the policy was only 5 months old. Hence, the 1st opposite party repudiated the claim of the complainant under policy terms and conditions. Further, as per the policy terms claim documents were to be submitted within 30 days after discharge from the hospital, whereas the complainant submitted the documents on 22.8.2007 after 3 months and the complainant is not to be indemnified. The 2nd opposite party has nothing to do with the claim of Rs.1,00,000/- as the insurance coverage was taken by the deceased policy holder from the 1st opposite party insurance company only on paying premium amount to the 1st opposite party.
On perusal of the entire record and upon hearing both sides we are of the considered opinion that the complainant submitted his claim to the 1st opposite party only on 22.8.2007 after 3 months of the death of the deceased policy holder. It is further observed that as per Ex.B.2 claim form it is noted that the treating doctor diagnosed the disease as lumbo sacral spondilities vide column No.9 of medical certificate and further certified vide column No.10 that the deceased suffered back ache and spondilities since two years. So, as per the terms and conditions the said disease was a preexisting one by the time of taking Health Shield policy from the 1st opposite party by the deceased policy holder. It is further noted that the complainant herein claimed Rs.1,00,000/- under the said insurance policy as risk coverage, but failed to submit any medical bills, treatment expenses etc to support his claim of Rs.1,00,000/- under the policy, for which the deceased entitled. Further, it is observed that the deceased underwent treatment in the Govt. Hospital, but there are no details about purchase of medicines from any outside pharmacies. So, the complainant failed to prove under what heads he is entitled for the claim of Rs.1,00,000/- from the 1st opposite party, though his deceased wife was under health insurance coverage.
Under the facts and circumstances of the present case the complainant herein failed to prove his case with any cogent evidence for his entitlement of the claimed amount of Rs.1,00,000/- from the 1st opposite party. On the other side the 1st opposite party proved that their repudiation was made as per the terms and conditions of the said policy. Hence, we have no other go, but to dismiss the complaint.
9.POINT NO.2: In the result, the complaint of the complainant is dismissed without costs.

Juju.P. George
S/o. George.P. Mathew
Jojima
Behind Civil Station
Palakkad - Complainant

V/s

Royal Sundaram Alliance
Insurance Co Ltd.,
Sundaram Towers
45 & 46 Whites Road
Chennai

O R D E R

Complainant and his father has availed a medi claim insurance policy from the Opposite party. Accordingly complainant and his father got insured under Plan I scheme bearing Policy No.HS BIL0004 vide certificate No. CS00025590000100. An initial premium of Rs.2,200/- was also collected from the petitioner's SBI account. The said insurance policy provides that in the event of hospitalization of the insured for a period of more than 24 hours a daily cash benefit as shown in the schedule of the certificate will be paid subject to a maximum period of 180 days per illness/accident. Father of the complainant who is the Ist insured in the policy was admitted in Lakshmi Nursing Home, Palakkad due to A/c weakness of right side of his body on 27/08/2006. Further on 29/08/2006 he was discharged and admitted in Jubilee Mission Medical College, Trichur. He was again discharged on 09/09/06 and was admitted in Palana Institute of Medical Sciences . On the same day he died due to stroke. Complainant made a request letter claiming the expense incurred as offered as per the policy to the tune of Rs.47,851/- with all the necessary documents. But opposite party repudiated the claim stating the insured died due to stroke which is a complication of pre existing disease such as diabetics and hypertension. According to the

- 2 -

complainant his father was not affected with diabetics mellitus or hypertension even at the time of treatment pertaining to the present claim and if at all the said diseases were present, it can only be induced due to the continuous treatment for the stroke. The opposite party has not verified or asked with the petitioner or petitioners father about the existence of any existing diseases. More over there is absolutely no proposal form supplied by the opposite party in order to enable the complainant to disclose any material information as to any existing disease if any. All the transactions were preceeding the receipt of Voice Consent Confirmation letter and issue of policy certificate was through telephonic conversation. The complainant's father was neither affected with diabetics and hypertension nor he was aware of the presence of any such disease on the date of policy. Opposite party has repudiated the genuine claim of the complainant. Hence the complaint.

Opposite party filed version with the following contentions. The Ist contention of the opposite party is that as per the policy condition opposite party can disclaim the liability to the insured person if the given claim is not made a subject matter of litigation in a court of law within 12 calender months from the date of repudiation . Claim was denied on 13/10/2006 and the complainant preferred a consumer complaint only on 23/09/2008, i.e, after 23 months and therefore opposite party is not liable to pay any sum under the instant claim since the complainant has waived his right to sue by not filing the claim within 12 months from the date of cause of action. The second contention is that the documents submitted by the complainant himself reveals the fact that the insured was having hypertension for 10 years and was diabetic for 16 years. The attending physician has also reported the same in the medical certificate. In the discharge summary of the Cardia Care Lakshmi Hospital also Diabetic Mellitus and Hypertension is noted under the head diagnosis. Further the discharge summary from Jubilee Mission Hospital also reveals the fact that the complainant is a known Diabetic/Hypertensis. As per the policy conditions it is clear that pre-existing diseases are not covered under the policy. The documents submitted by the complainant himself clearly shows that the complainant's father died due to the ailment which is a complication of a pre-existing disease and hence the compliant is liable to be dismissed.

The evidence adduced consists of the proof affidavits on their respective side and Exhibit A1 to A5 on the side of the complainant and Exhibit B1 to B5 on the side of opposite party.

Now the issues for consideration are

1.

Whether the act of opposite party in repudiating the claim of the complainant amounts to deficiency in service?
2.

If so, what is the reliefs and costs?

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Point No.1

Opposite party raised a contention that as per their policy conditions, opposite party can disclaim the liability to the insured person if the claim is not made subject matter of litigation in a Court of law within 12 calender month from the date of repudiation. Present complaint is filed after 23 months from the date of repudiation of the claim and hence the complaint is not maintainable. We are of the view that even though such a clause is there in the policy conditions it is not applicable as far as a consumer who files a complaint before the Consumer forum. Complaint filed within 2 years from the date of cause of action is maintainable by the forum and is not barred by Section 24(A) of Consumer Protection Act. We answer the point in favour of the complainant.

Point 2

Opposite party has repudiated the claim of the complainant stating that as per the medical certificate filled by the attending physician the insured has a history of diabetic mellitus for the past 16 years and hypertension for the past 10 years and the present ailment is the resultant of these pre-existing diseases. As per the exclusion clause, the company shall not be liable under the policy for any claim, in connection with or in respect of a pre-existing disease and any disease, illness, medical condition, injury, which is a complication of pre-existing disease. According to the complainant the insured was not having diabetics or hypertension at the time of taking policy and if at all there is, it is the result of the treatment for the present ailment.


We have carefully gone through the evidence on record. Exhibit B4 is the discharge summary issued by the hospital wherein the complainant was taken first. Under the head diagnosis complainant is found to have diabetics and hypertension. From there the patient was referred to Jubilee Mission Medical College Hospital, Trichur. Exhibit B5, discharge summary from the Jubilee Mission Hospital also under the head history it is noted (known diabetic/hypertension ). It is relevant to note that in both these documents, the period of these disease existing is not mentioned. The only document in which the same is mentioned is Exhibit B3. There is no convincing evidence in support of Exhibit B3. When the insurer alleges pre exisitng disease, it is upon them to prove the same. Further opposite party has not proved that complainant has knowledge of the pre-existing diseases. Hence it is not fine on the part of opposite party to repudiate the genuine claim of the complainant.


In the result complaint allowed. Opposite party is directed to pay Rs.47,851/- to the - 4 -

complainant being the claim amount and Rs.6,000/- as compensation for mental agony

and sufferings. Order shall be complied within one month from the date of receipt of order failing which the whole amount shall carry interest at the rate of 9% per annum.

Sri. G.S. Ravi,

S/o. Late. G. Subba Rao,

Aged About 44 years,

R/at: No.11, Ground Floor,

Kurubarahalli Main Road,

Kirloskar Colony 2nd Stage,

BANGALORE-560 079. …. Complainant.



-V/s-



1. The General Manager,

Royal Sundaram Alliance

Insurance Company Limited,

No.186/7, Raghavendra Plaza,

Hosur Road,

BANGALORE-560 027.

2. The Assistant Manager,

Royal Sundaram Alliance

Insurance Company Limited,

No.186/7, Raghavendra Plaza,

Hosur Road,

BANGALORE-560 027. …. Opposite Parties.

ORDER

This complaint is for a direction to the opposite parties to pay Rs.39,500/- towards repair charges in respect of the insured vehicle and to pay compensation of Rs.50,000/- towards mental agony and loss and costs of Rs.5,000/- on the following grounds:-

The complainant who is the owner of Maruthi Omni Van bearing No. KA-02 P-3602 had got the same insured with opposite party No.1 for the period from 21.11.2007 to 20.11.2008. The vehicle met with an accident on 26.10.2008 on NH-48 road near Gandhi Farm. Even after the accident the vehicle was in good condition except damage to the body. On 30.10.2008 the complainant himself drove the vehicle from the place of accident and left the same at R.N.S. Motors, Yeshwanthpura, Bangalore, for repairs. At the initial stage R.N.S. Motors approximately estimated Rs.25,000/- for the spare parts and Rs.20,000/- towards labour charges for repairing the vehicle. But, Mr. Binu.C, the surveyor of opposite party No.1 carried out the survey and signed the estimate given by R.N.S. Motors for Rs.22,625/-.

The complainant found that no repair work was done to the vehicle even after a week. Therefore on 06.11.2008 he sent a fax message to the opposite parties and requested to settle the claim at the earliest. On 17.11.2008 opposite party No.2 sent a letter along with consent letter asking the complainant to come forward for settlement of the claim on Salvage Loss Basis stating that, the vehicle is severally damaged and settlement on repair basis is not viable and therefore the liability of the company is fixed at Rs.24,500/-. Even after the accident and completion of legal formalities at Kudur Police Station the vehicle was driven to RNS Motors, Yeshwanthpura, by the complainant himself. Therefore the contention of the opposite party in the letter dated: 17.11.2008 that the vehicle is severally damaged is not correct. One of the terms and conditions of the policy provides that, if the aggregate costs of retrieval and repair of the private car, subject to terms and conditions of the policy exceed 75% of the IDV of the vehicle it shall be treated as constructive total loss.

After the entire repair work of the vehicle the complainant paid Rs.54,739/- to RNS Motors towards repair charges. On 04.12.2008 he sent reply to the letter dated: 17.11.2008 along with the invoice dated: 26.11.2008 clearly intimating the opposite parties that at no point of time he had consented for settlement of the claim on Salvage Loss Basis and demanding opposite parties to settle the claim on repair basis after deducting the depreciation charges. He estimated the claim on repair basis at Rs.39,500/-. On 16.12.2008 the opposite party sent another letter with the same offer of Rs.24,500/- on Salvage Loss Basis. In this letter the opposite parties took new contention that the repair liability of the company was worked out for Rs.55,000/- subject to the policy terms and conditions, ignoring the report submitted by the Surveyor.

Thereafter the complainant tried to contact the opposite parties through phone most of the times, but the same was not properly responded. On 24.12.2008 he personally visited the office of the opposite party and requested to settle the claim on repair basis and not on Salvage Loss Basis and he was informed that the proposal has been sent to the Head Office to ascertain the liability on the repair basis, and are waiting for the report. On 01.01.2009 he sent another letter that the settlement of the claim at Rs.24,500/- on Salvage Loss Basis is not acceptable and that the settlement should be made on the repair basis including labour charges. But by the letter dated: 13.01.2009 the opposite party informed that they are constrained to settle the claim at Rs.24,500/- only. Hence the complaint.

2. In the version the contention of the opposite parties is as under:-

There is no deficiency in service or negligence on the part of the opposite parties and therefore this Forum has no jurisdiction to entertain the complaint. On receipt of the claim they got an estimate from M/s. RNS Motors Limited for Rs.72,914/- i.e., more than 75% of IDV. Based on the said estimate they suggested that the claim would be settled on total loss basis as per the terms of the policy which stipulates that insured’s car shall be treated as constructive total loss if the aggregate cost of retrieval or repair of the vehicle exceeds 75% of the insured declared value (IDV) of the vehicle. Without estimating the value of the repair charges they could not have come to the conclusion of settling the claim on total loss basis just because the surveyor initially estimated the repair charges to the tune of Rs.55,000/-, as the surveyor himself has mentioned in the survey report that supplementary estimate may increase upon dismantling the vehicle for repairs, considering the age and model of the vehicle. Accordingly they wrote the letter dated: 17.11.2008 stating that they are ready to settle the claim on total loss basis and are ready to pay Rs.24,500/-.

The complainant however unilaterally got the vehicle repaired for a sum of Rs.54,739/- and demanded the payment of the said amount through his letter dated: 04.12.2008. As per condition No.3 of the terms and conditions they had the prerogative right to decide on settlement of the claim at its option, but the complainant did not agree for the same. The terms and conditions of the insurance policy bind both parties and the insured cannot claim anything more than what is mentioned under the said terms. The opposite parties are ready to pay Rs.24,500/- as per the terms of the policy as such, there is no deficiency of service on their part and therefore, the complaint is liable to be dismissed.

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

4. The points for consideration are:-

(1) Whether the complainant has proved deficiency in service on the part of the opposite parties?

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

5. Our findings on the above points are:-

POINT No.1:- In the Affirmative

POINT No.2:- As per the final order


REASONS

POINT Nos. 1 & 2:-

6. There is no dispute that the complainant is the owner of the Maruthi Omni Van bearing No. KA-02 P-3602 and the said vehicle had been insured with the opposite parties for the period from 21.11.2007 to 20.11.2008. It is also not in dispute that the said vehicle was damaged to certain extent in an accident that took place on 26.10.2008. In the insurance policy the insured’s declared value of the vehicle is given as Rs.75,000/-. From the copy of the proforma or tentative estimate given by M/s. RNS Motors Limited it is seen that the estimate for repairs to the vehicle was at Rs.72,914/-. Based on this estimate the opposite parties proposed to settle the claim of the complainant as per condition No.3 of the terms and conditions of the insurance policy. Condition No.3 provides as under:-

3. The company may at its own option repair reinstate or replace the private car or part thereof and/or its accessories or may pay in cash the amount of the Loss or Damage and the liability of the company shall not exceed:

(a) for Total Loss/Constructive Total Loss of the Private Car – the insured’s Declared Value (IDV) of the Private Car (including accessories thereon) as specified in the Schedule less the value of the wreck.

(b) for partial losses, i.e., losses other than Total Loss/Constructive Total Loss of the Private Car – actual and reasonable costs of repair and/or replacement of parts lost/damaged subject to depreciation as per limits specified.

Therefore as per the above terms and conditions the liability of the insurance company shall not exceed the Constructive Total Loss of the Private Car less the value of the wreck and in case of partial loss other than Total Constructive Loss, the actual and reasonable costs of repairs/replacement of parts damaged subject to depreciation as per limits specified. In the case on hand the declared value of the vehicle is Rs.75,000/-. In the first instance M/s. RNS Motors Limited gave the provisional estimate for Rs.72,914/- which exceeds 75% of the insured’s declared value of the vehicle. But after effecting repairs M/s. RNS Motors gave the job card retail invoice for Rs.54,739/-. This does not exceed 75% of the declared value of the vehicle, because 75% of Rs.75,000/- comes to Rs.56,000/- as such the insurance company is liable to settle the claim of the complainant on repair basis and not on total loss basis. When after effecting repairs M/s. RNS Motors raised bill for Rs.54,739/- that should be the basis for settling the claim of the complainant and not the approximate or provisional estimate for Rs.72,914/-.

In this view of the matter we are not convinced with the contention of the opposite parties that they are liable to settle the claim on Constrictive Total Loss Basis. Taking the sum of Rs.54,739/- as cost of repairs the complainant has arrived at Rs.39,500/- as the amount payable on repairs basis. But this appears to be not correct. To decide the depreciation, the age of the vehicle is not given by both the parties. The insurance company is entitled to deduct depreciation as provided in the insurance policy based on the age of the vehicle. Therefore in our opinion, it is just and proper to direct the opposite parties to decide and settle the claim of the complainant on repair basis taking the repair charges as Rs.54,739/-. In the result, we pass the following:-

ORDER

7. The opposite party is directed to settle the claim of the complainant on repair basis less the depreciation and policy excess as per the terms of the policy. Compliance of this order shall be made within eight weeks from the date of communication.

01. Chandrakala

W/o Late P.Shivakumar, A/a 34 yrs,



02. Tara S.

D/o Late P.Shivakumar, A/a 14 yrs,



03. Dimpel S. D/o Late P.Shivakumar, A/a 10 yrs,

All are R/at No.277, I Stage, I Main,

6th Phase, Industrial Town, WOC Road,

Bangalore – 560 004.

…. Complainants

V/s



Royal Sundaram Alliance Insurance

Company Limited, Sree Balaji

Sovereign, No.132, Brigade Road,

Bangalore – 560 025.



…. Opposite Party

-: ORDER:-



This complaint is for a direction to the Opposite Party to pay Rs.2,00,000/- towards damages for violation of the agreed terms and conditions of the insurance policy.

2. The case of the complainants is as under:-



Complainant No.1 is the wife and complainant Nos. 2 & 3 are the Daughters of deceased T.Shivakumar who died in the road accident on 15/05/2007 near B.M.Road, Nandanam nursery, Palya Hobli, Alur Taluk, Hassan District; when the said P.Shivakumar was traveling in a MARUTHI VAN; a lorry bearing No.KA-44/597 came from the opposite direction and hit the MARUTHI VAN; as a result of which, P.Shivakumar died. The police have registered a case against the driver of the lorry with regard to the accident.


The deceased P.Shivakumar was enrolled for personal accident policy with the Opposite Party insurance company and the policy was in force during the period from 13/05/2007 to 12/05/2008. After the death of P.Shivakumar, they approached Opposite Party to pay insured amount of Rs.1,00,000/-. In spite of repeated requests and representations, the Opposite Party failed and neglected to pay the insurance amount. The complainants had approached the Opposite Party to accept the claim application, but the officials of the company failed to receive the claim form and refused to answer the claim. Hence, the complaint.

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



They had issued group personal accident insurance cover to M/s Manjrak Marketing which was the master policy holder bearing No.PAMANJ000. The policy was to be issued to the customers of the said concern as an ad-on benefit without charging premium from the customers who were the beneficiaries under the master policy. Accordingly the deceased Shivakumar had obtained the personal accident cover in a sum of Rs.1,00,000/- and the cover was valid from 13/05/2007 to 12/05/2008.


The complainants are making claim for the death of Mr.Shivakumar without lodging any claim with the Opposite Party or intimating about the happening of the event as per the terms of the policy. The certificate of enrolment submitted by the complainants mentions about the process of marking claim but the complainants did not prefer to make any claim with the Opposite Party and have directly approached this Forum two years after the date of accident. As per the terms and conditions of the policy, the complainant should have lodged the claim within 30 days after the occurance of the event, but without making claim, the complainant have filed the complaint which is premature. On these grounds, the Opposite Party has prayed for dismissal of the complaint.



4. In support of the claim, the complainant No.1 has filed the affidavit. The Opposite Party has not adduced any evidence. When the matter came up for arguments, the Opposite Party and its counsel remained absent. We have heard the arguments of the learned counsel for the complainant.



5. The points for consideration is:-

Whether the complainants have proved deficiency in service on the part of the Opposite Party and therefore entitled to the relief prayed for in the complaint?





6. Our finding to the above point is in the NEGATIVE for the following:-

-:REASONS:-

7. From what is stated in the complaint, it is clear that till the date of filing of the complaint, no claim was made with Opposite Party under the personal insurance cover obtained by the deceased Shivakumar. It is the contention of the complainants that several times they approached the Opposite Party with request to accept or receive the claim application, but the Opposite Parties failed to receive the same and therefore did not settle the claim. This contention with regard to the non receipt of the claim form by the Opposite Parties was introduced by amendment to the complaint at Para-6-a. In the version, this allegation made by the complainants at Para-6-a of the complaint is not at-all denied by the Opposite Party.


However, the fact remains that so far the complainants have not submitted the claim form and necessary documents to the Opposite Party with regard to the insurance claim on the death of Shivakumar. Without making claim, the complainants are not entitled to allege deficiency in service on the part of Opposite Party. In the facts and circumstances of the case, in our opinion, it is just and proper to direct the complainants to submit the claim forms and to file fresh complaint if the decision of the Opposite Party goes against their interest. In the result, we pass the following:-

-:ORDER:-

The complaint is disposed off with the following directions:-

(i) The complainants shall submit the claim form and necessary documents to the Opposite Party within one month from the date of communication of this order.

(ii) The Opposite Party shall consider the claim of the complainants as per terms and conditions of the policy within two months from the date of submission of the claim form.

(iii) The complainants are at liberty to file the fresh complaint if the decision of the Opposite Party on their claim goes against their interest.

(iv) In the circumstances of the case, we direct both the parties to bear their own costs.

(v) Send a copy of this order to both parties free of costs immediately.

(vi) Pronounced in the Open Forum on this the 29th Day of July 2009.

COMPLAINT NO. 918 OF 2009

Sri. Ko.Vijayakumar,

S/o K.Channaveerappa,

Aged about 47 yrs,

Occ:Advocate,

No.771, “Vishwa Vijaya”,

60 feet Road,

5th Stage, 2nd Phase,

BEML Layout,

Rajarajeshwarinagar,

Bangalore – 560 098.

…. Complainant.

V/s



The Manager,

Sundaram Finance Ltd.,

A.V.E. Mariya Complex,

No.27, First Floor,

100 Ft. Road,

Near Jalahalli Circle,

T.Dasarahalli Post,

Bangalore – 560 057.



…. Opposite Party







-: ORDER:-



This complaint is for a direction to the Opposite Party to issue NOC, Car Key and other hypothecation documents pertaining to Car No.KA:02/ME-771 and to pay compensation of Rs.1,00,000/- to the complainant on the following grounds:-



The complainant who is an Advocate has earned good reputation in his field. On 30/06/2004 he availed loan from the Opposite Party for purchase of Maruthi-800 Car bearing No.KA-02/M-771. The Opposite Party had obtained 35 post dated cheques each for Rs.5,487/- towards repayment of the loan and got the cheques encashed in time. The Opposite Party informed the complainant over phone to pay Rs.8,397/- towards balance amount due as there is delay in payment and one cheque is bounced.


The Opposite Party received the amount towards bounced cheque through Cheque No.16709 drawn on Nyayamitra Sahakari Bank Limited. After the clearance of the loan, he has been requesting the Opposite Party to issue NOC. He made such request for about forty times during the last twenty months. But the Opposite Party avoided to comply with the demand on one pretext or the other and asked the complainant to visit his office after a week or a month and thus wasted the valuable time of the complainant and also depreciation in the value of the vehicle and loss of salary to the Driver and gave false information regarding clearance of loan. On 22/01/2009 the complainant visited the office of the Opposite Party to receive the NOC, Car Key and documents. But the Opposite Party failed to furnish the same on the ground that still Rs.8,397/- is due.


Thus, the Opposite Party intentionally withheld the documents, Car Key and NOC and caused inconvenience and mental agony. Thereupon he issued legal notice dated 13/02/2009 calling upon the Opposite Party to hand over the Car Key, documents and NOC within seven days failing which to pay Rs.40,000/- towards 40 visits to the office, Rs.40,000/- towards wasting of valuable time, Rs.10,000/- towards mental harassment, Rs.5,000/- towards notice charges and Rs.5,000/- towards furnishing false information. He also asked the Opposite Party to return the bounced cheque after receiving the cash if the amount is not paid. But the Opposite Party neither gave reply to the notice nor complied with the demand. Hence, the complaint.





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

The complainant had approached the Opposite Party for financial assistance to purchase a car. Accordingly loan of Rs.1,77,000/- was sanctioned and including interest a total sum of Rs.1,97,532/- was payable by the complainant. The complainant agreed to re-pay the said amount in 36 equated monthly installments of Rs.5487/- each commencing from 30/06/2004 till 03/06/2007. As per the loan agreement, the complainant had agreed to pay the installments on 17th of every month but in October 2004 he requested to change the due date from 17th to 3rd of every month and the same was accorded. Till 03/05/2006 the complainant paid the installments on 3rd of every month and thereafter without any request and approval he once again issued cheques payable on 17th of every month from 17/07/2006 till closure of the loan.


Thus, there was delay of 14 days in payment of the installment amount from 3rd of every month to 17th of every month from July-2006 till the end of the loan tenure. Therefore, delayed payment charges have been claimed on the amount due. As per the terms of the agreement, the complainant is liable to pay delayed payment charges at the rate of 30% Per Annum on the installment amount due. One cheque for the month of June-2006 had not been issued by the complainant for payment of installment amount of Rs.5,487/- and that amount is still due. As per the statement of account of the Opposite Party, the complainant had paid one installment as advance installment on 09/07/2004 and thereafter he has paid only 34 installments out of 35 installments.


Therefore he has still not made payment of one installment in a sum of Rs.5,487/- and this fact is clear from the Bank statement produced by the complainant himself. Thus, including the amount towards one installment and the delayed charges, the complainant is still due Rs.8,397/-. Therefore, the contention of the complainant that he has cleared the entire amount due is not correct. Since the amount due was not cleared, the Opposite Party has not issued no due certificate for clearance of the hypothecation entry. Thus, the complainant is not entitled to the relief prayed for in the complaint and as such the complaint is liable to be dismissed.

4. In support of the respective contentions both parties have filed affidavits and have produced copies of documents. We have heard the arguments on both side.





5. The points for consideration are:-

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



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



6. Our finding to both points is in the NEGATIVE for the following:-



-:REASONS:-

7. Admittedly the complainant availed loan from Opposite Party for purchase of a Car agreeing to re-pay the same in 35 equated monthly installments of Rs.5,487/-. The complainant claims to have issued 35 post dated cheques towards repayment of the loan and claims that all the 35 cheques have been honored and therefore he has cleared the entire loan of the Opposite Party. As against this, the contention of the Opposite Party is that the complainant has made payment of only 34 cheques and he had not issued the cheque towards installment due in the month of June -2006 and therefore the complainant is still due Rs.5,487/- towards one installment.


This contention of the Opposite Party that the complainant is still due Rs.5,487/- towards one installment appears to be true when we consider the entries in the Pass book produced by the complainant. It appears the complainant had issued post dated cheques on his account in Syndicate Bank and one cheque on his account in Nyayamitra Sahakari Bank Limited. From the entries in the Pass book in respect of the account of the complainant in Syndicate Bank it is seen that only 33 cheques have been presented to the said Bank and those cheques have been encashed. Apart from 33 cheques drawn on Syndicate Bank, one cheque is drawn on Nyayamitra Sahakari Bank and the same is also honored.


Therefore, the complainant has made payment of 34 cheques only and not 35 cheques as claimed by him. From the entries in the Pass book of the Syndicate Bank it is seen that there is double entry with regard to the payment through cheque No.5444851. Therefore, it appears the complainant is confused with regard to this double entry and contends that he has made payment through 35 cheques when in-fact only 34 cheques have been encashed by the Opposite Party. From the statement of account issued by the Opposite Party there is no entry regarding bouncing of any cheque.


Therefore, the contention of the complainant that he made payment of the bounced cheque through cheque drawn on Nyayamitra Sahakari Bank also appears to be not correct. When from the material produced by the complainant himself it is seen that the complainant has made payment of only 34 installments as against 35 installments it goes without saying that the complainant is still due the amount for one installment i.e., Rs.5,487/-. If that is so, without clearing the entire amount due towards the loan, the complainant is not entitled to demand the Opposite Party to issue NOC, Car Key and other documents. Besides the amount due towards one installment, the Opposite Party has also claimed late payment charges.


It is the contention of the Opposite Party that in the first instance as per the terms of the loan agreement, the complainant had agreed to pay the installments on 17th of every month, but in October – 2004 he requested to change the due date from 17th to 3rd of every month, the same was accepted and the complainant made payment on 3rd of every month till 03/05/2006 and thereafter on his own issued the cheques payable on 17th of every month from 17/07/2006 and therefore there was delay of 14 days in payment of the installment from July-2006 till the end of the loan tenure and therefore late payment charges have been levied. Admittedly in the first instance, the complainant had agreed to make payment of the installment on 17th of every month. However, after some time he requested to change the due date from 17th to 3rd of every month and made payment for some time and thereafter he made payment on 17th of every month as per the original agreement.


In that even, it appears to us that the Opposite Party is not entitled to levy late payment charges as has been done. However, in view of our finding that the complainant is still due the amount towards one installment and therefore he has not cleared the entire loan, he is not entitled to allege deficiency in service on the part of the Opposite Party and as such not entitled to the relief prayed for. The complainant is at liberty to seek NOC from the Opposite Party and return of the Car Key and other documents after clearing the entire amount due. In the result, we pass the following:-

-:ORDER:-

1. The complaint is DISMISSED. No order as to costs.

2. Send a copy of this order to both parties free of costs, immediately.

3. Pronounced in the Open Forum on this the 03rd Day of JULY 2009.

1. Velturi Ganga Naga Suribabu, S/o Late Satyam, Hindu, aged, Barber, R/o D.No.13-31, Gavarapeta Street, Thummapala Village, Anakapalle Mandal, Visakhapatnam Dist. (Died)

2. Velturi Appalanarasamma, W/o Late Satyam Naidu, Hindu, aged 52 years, R/o D.No.13-31, Gavarapeta Street, Thummapala Villag, Anakapalle Mandal, Visakhapatnam

3. Kommanapalli Rama Devi, W/o Durga Venkata Satyanarayana, Hindu, aged 22 years, R/o D.No.13-31, Gavarapeta Street, Thummapala Village, Anakapalle Mandal, Visakhapatnam

… Complainants

And:

1. Royal Sundaram Alliance Insurance Co. Ltd., rep. by its Divisional Manager, CBM Compound, Waltair Uplands, Visakhapatnam – 530 003.

2. Royal Sundaram Alliance Insurance Co. ltd., rep by its Divisional Manager, A Block, Fifth Floor, Jewel Pawani Towrs, Raj Bhavan Road, Somajiguda, Hyderabad.

3. Royal Sundaram Alliance Insurance Co. Lt., rep. by its Regional Manager, Regional Officer, Sundaram Towers, 45 & 46, Whites Road, Chennai – 600 014.

… Opposite Parties


: O R D E R :

1. The complainant was son of Velturi Satyam, who, during his life time obtained Accidental Classic Schedule Policy bearing No.PO00002407000100 for Rs.2,50,000/- for a period from 11-08-2004 to 10-08-2005 from the opposite parties. While so, it is claimed that the said Satyam fell on the floor due to electrical shock at his house at 17-12-2004 and immediately shifted to King George Hospital for treatment, but he expired on the same day, while deceased was going back to his house, from King George Hospital, Visakhapatnam. As the complainant was not aware of the policy of his father and only after his demise, he came to know of it in the year 2006, immediately he informed the opposite parties on 23-06-2006 along with death certificate, policy copy and treatment documents.


A claim form was also sent by them, which was resubmitted by the complainant. The opposite party rejected the claim on the ground that the company should be given intimation within 30 days of the event, in order to give raise to claim as per the policy conditions. Hence the complainant seeking for payment of Rs.2,50,000/- the policy amount with interest @ 24% p.a., from 17-12-2004 till realization and to pay Rs.50,000/- towards mental agony suffered by the complainant by refusal for making him to go around the office of the opposite parties and to pay cost of Rs.10,000/-.

2. Subsequent to filing of the complaint, the complainant died. His wife and daughter being the only legal heirs impleaded as complainants 2 and 3.

3. The 1st opposite party filed a counter pleading that the copy of the FIR, MLC were not submitted along with complaint. There is violation of the policy conditions due to non-intimation of the death insured within 30 days, but the claim was made only after 1 ½ year and hence this opposite party is not liable to pay the same. The complainant is not a consumer. Hence the complaint has to be dismissed with costs.

4. The 2nd and 3rd opposite parties file memo adopting the counter of the 1st opposite party.

5. At the time of enquiry, both the parties filed affidavits and marked Ex.A.1 to Ex.A.7 and the opposite parties marked Ex.B.1 and Ex.B.2. Apart form that, letter from KGH, Visakhapatnam and copy of the OP register marked as Ex.X.1 and Ex.X.2.

6. Both the counsels were heard, who reiterated their respective contentions. In view of the pleadings and contentions raised by the either side, the point that would arise for determination in this complaint is :

Whether there is any deficiency in service on the part of the opposite party and the complainants are entitled for the reliefs asked for?

7. The complaint was filed by the son of the deceased Velturi Satyam, who died on 17-12-2004. The said Satyam while alive undisputedly obtained a policy Ex.A.1 on 11-08-2004 covering a period of one year, as per which, apart from insurance cover to his life, any injury sustained by him also would be covered for compensation, provided they are due to accident or unnatural causes.

The death was said to be accidental, namely that he fell in his house on 17-12-2004 due to electrical shock and he was shifted to KGH, Visakhapatnam and obviously after obtaining treatment there, while on the way back to home, he was said to have died. Though in Ex.A.7 reply notice, the claim was repudiated as the same was preferred 1 ½ year after the date of occurrence, which amounts to violation of policy condition, in the light of the investigators report Ex.B.1, the opposite party has taken up a stand that the death was not due to accident and the OP Chit Ex.A.2 filed by the complainant is fake document.

8. In the absence of any registration of crime, or postmortem report, the complainant is relying upon Ex.A.2 OP Chit and Ex.A.3 Medical Certificate issued by the Chief Medical Officer, KGH to show that it is an accidental death. With regard to OP chit Ex.A.2, for verification of the same, the OP register was summoned from KGH, Visakhapatnam, by this Forum. The Superintendent has sent a letter Ex. X-1, stating that Ex.A.2 OP chit 12933 was not tallying with the OP Register Number, as on that day the numbers started from 296895. He also enclosed the extract of OP register of the hospital dated 17-12-2004. From this, it is clear that genuiness of Ex.A.2 OP ticket is denied by the KGH Hospital Authorities.


Apart from that, Ex.B.1 investigators report also would show that the death was not due to any fall by the electric shock and the insured died at his house due to heavy drink. It would further read that the complainant refused to give any statement to the investigators, on instructions from his advocate. The Doctor who was said to have examined the deceased and issued Ex.A.2 was not examined. In these circumstances it is to be held that Ex.A.2 is fake document. In these circumstances, no reliance can be based on Ex.A.3 certificate said to have been issued by Chief Medical Officer, KGH, Visakhapatnam.


Thus it is quite evident that only in order to claim the policy amount, the complainant has come up with fake documents as if the death was due to an accident. On this account and also in view of the fact that the claim was made after 1 ½ years after the occurrence of the event is clearly violation of the policy conditions and that being the case the opposite parties are justified in repudiating the claim. Hence there is no deficiency in service. Accordingly this point is answered.

9. In the result, the complaint is dismissed with costs of Rs.2,500/- payable to the opposite parties by the complainant.

Gurbax Singh Gill son of Sh. Jagjiwan Singh Gill, Prop. M/s Ranbir Enterprises, K-106, Phase-VII, Dhandari Kalan, Focal Point, Ludhiana.



…..Complainant.

Versus



1- Royal Sundaram Alliance Insurance Company Limited, 46, Whites Road, Chennai-600 014, Ph.No.91-44-28517387.

2- Stan Autos, Sherpur, G.T. Road, Ludhiana.

…..Opposite parties.






O R D E R









1- Complainant owner of Alto car, had got it insured from opposite party no.1-Royal Sundaram Alliance Ins. Co. The car was purchased on 25th May, 2007. On 9.12.2008 at 7.00 p.m., the car got struck in a pond of water, created due to rough road and leakage of sewerage. Complainant accelerated the vehicle, to bring it out of the rough road pond, but without success. Thereafter, the vehicle failed to start. Then he called his factory workers, located at a distance of about half kilometer from that spot and with the help of those workers, pushed down the car and brought it to his factory at 7.30 p.m. Next morning, called engineers from Stan Autos, opposite party no.2, who deputed Sh. Sandeep Kumar to his factory and took vehicle to the workshop, by towing with a maruti van. On checking of car, it was found that lower part thereof, was damaged, due to leakage of oil.


The vehicle was got repaired, as surveyor Sh. Yogesh Kochhar of opposite party no.1, refused to meet required amount spent on repair of the vehicle. Sh. Yogesh Kochhar told them that payment of expenditure, to repair his vehicle, would directly be made to the company. Subsequently, opposite party refused to pay the amount spent on repair of the engine, due to damage thereto. Consequently, by filing this complaint u/s 12 of the Consumer Protection Act, 1986, sought compensation from opposite party.

2- Opposite party no.1 in reply, pleaded that complaint isn’t maintainable, being frivolous and there is no deficiency in service on their part. Averred that claim lodged by the complainant under the insurance policy, was registered, entertained, processed and after receipt of report of surveyor Sh. Yogesh Kochhar, claim of the complainant was settled and paid Rs.703/-, in terms of assessment made by the surveyor. As per instructions of the complainant, the claim was directly paid to repairer opposite party no.2, vide letter dared 22.12.2008, with intimation to the complainant, in full and final settlement of the claim. Payment to opposite party no.2 was made after getting discharge voucher dated 20.12.2008 signed from the complainant. But complainant with malicious intention, has filed this complaint. After giving voluntary discharge voucher in favour of opposite party no.1, complainant is not entitled to file this complaint. There is no deficiency in service on their part. Rest of the allegations of the complainant have been controverted and denied, including that vehicle was struck in a pond on 9.12.2008, wherein engine was damaged. Also denied that the vehicle was towed to workshop of opposite party no.2. Complainant never got the vehicle repaired at own costs, on protest.

3- Opposite party no.2 did not contest the complaint and is being proceeded exparte.

4- Contesting parties, in support of their respective pleadings, adduced evidence by way of affidavits and documents. We have heard complainant in person, ld. counsel for opposite parties and gone through the entire record.

5- In claim form Ex.R1, complainant mentioned that while returning to his factory premises, the car suddenly came to halt on road near Sham Steel Mill. On being raised the claim under insurance policy, copy of which is Ex.R4, opposite party had availed services of Sh. Yogesh Kochhar, surveyor, who vide report Ex.R3, found the vehicle having hit marks on its under body portion. The oil pump was found torn and the floor pan was having scratch marks. On stripping the engine, it was found that due to overheating, after the drainage of lube oil, connecting rod bearing of cylinder no.2 got melted and fused with the crank. After repair and re-inspection, he found recommended parts replaced. In view of the policy, after applying excess clause and deducting Rs.500/- rounded out, net payable claim of Rs.712/- found. This assessment of payable claim was arrived by him under summary of assessment as under:-



Summary of Assessment Claimed Assessed.

Total Labour charges 89988.80 393.26

Loss Assessed -- 500/-

Total cost of bill 15,484.50 952.47

Total 24,472.30 845.73

On metal parts 10.00 85.65

Plastic Rubber Parts 50.00 48.00

Glass Parts 0%

NET ASSESSED LOSS Rs. Rounded 712.08



6- The aforesaid amount of Rs.712/- was directly paid by opposite party no.1 to opposite party no.2, under their official letter Ex.R5 dated 22.12.2008. Because defence taken is that complainant had directed to pay charges directly to the repairer of the vehicle. Such payment was made under the policy, in full and final settlement of the claim. On the same day, opposite party also obtained satisfaction voucher Ex.R2 dated 28.12.2008 from the complainant, as full discharge of his claim under the insurance policy, qua damage caused to his vehicle in an accident on 9.12.2008. This receipt Ex.R2 is of Rs.703/- only. Whereas, assessment of payable amount was of Rs.712/-. Actually, opposite party no.1 had paid to opposite party no.2, Rs.703/- under receipt Ex.R5.

7- According to the complainant, who argued his case in person, his signatures on satisfaction voucher, were obtained in advance and no payment was directly made by opposite party no.1. He never gave full discharge of liability of opposite party under the policy. There appears force in such contention. Because when no payment directly was made by opposite party no.1 to the complainant under the policy, then there was no necessity having taken receipt (Ex.R2) from him. As they had directly made payment to opposite party no.2, under receipt Ex.R5 to them and according to defence, this was done as per instructions of the complainant. Though, there is no proof having given such instructions by the complainant, authorizing opposite party no.1 to make direct payment to opposite party no.2. In these aspects of the matter, we don’t take receipt Ex.R2 given by the complainant to opposite party no.1, as full and final settlement of his claim under the policy.

8- It is argued on behalf of opposite party no.1 that insurance condition of the vehicle was infringed, as he had drove the vehicle engine which was having no oil and on account of driving vehicle without oil in the engine, the same got seized. So, it was incidental damage to the engine, due to act of the complainant, which was not covered under the policy. Therefore, amount spent to repair seized engine of the veheicle, was not payable to the complainant. In support, reference was made to a letter Ex.C2, addressed to the complainant. It is mentioned in the letter that engine oil level was totally nil in the engine of the vehicle. Engine was not getting cranked due to running of engine without engine oil.


So, conveyed him that surveyor of the insurance company has not passed the claim, as engine repair does not come under warranty liability. Then complainant on that intimation Ex.C2 of opposite party no.2, made payment of their bill under protest. Job card Ex.C3 of the vehicle issued to the complainant by opposite party no.2, shows that total bill of Rs.14,400/- was raised by them. On the job card, he also mentioned making payment of the bill under protest, as surveyor of opposite party no.1 had refused his genuine claim and bill.

9- As per case of the complainant, the vehicle got struck in rough road pond having water and when accelerated the vehicle, to bring it out of ditch, the engine got damaged, leading to leakage of the oil. Then with the help of workers of the factory, pulled out the vehicle from the ditch and drove it half kilometer to his factory. Next day, mechanic of opposite party no.2 towed vehicle to their workshop for repairs.

10- But opposite party took plea that loss to the engine was consequential loss, so wasn’t payable to the complainant under the policy. But we can not lose sight that damage to engine in this case, appears to be accidental. Because when driving, the vehicle got struck in a pond filled with water and in that process, bottom of the car got damaged, leading to engine oil flowing out of the engine, resultantly, causing engine seizure. Damage to the vehicle as such was suffered on account of accident, when it got struck in a pond. Such damage can not be taken to be consequential loss. By washing their hands off, by paying only labour charges etc., amounting to Rs.703/-, would certainly amount in this case to deficiency in service on part of opposite party no.1.


Because they were also liable to pay under the policy, amount spent on repairs of the engine by the complainant, in terms of section-1 of the policy Ex.R4. Opposite party no.1 was required to deduct depreciation of the parts, as mentioned in the policy and pay balance amount so spent on repair to the complainant. By not doing so, certainly they would be guilty of not rendering proper services to its own consumer. We would be unfair to opposite party no.1, if don’t refer contention that complainant accepted the amount of Rs.703/- as full and final payment, so now estopped to file this complaint.


In support, reliance was placed on Jiyajeerao Cotton Mills Ltd. Vs New India Assurance Co. Ltd. I(1992)CPJ-292(NC); Savitri Salt Suppliers Vs Oriental Ins. Co. Ltd. II(2009)CPJ-223(Tripura State Commission); Oriental Ins. Co. Ltd. Vs Shaheenkhan Mubassir Alam Khan IV(2005)CPJ-414(Maharastra State Commission); K.R. Rajashekar Vs New India Assurance Co. Ltd. IV(2005)CPJ-623(Karnatka State Commission) and Metrananda Behera Vs New India Assurance Co. Ltd. & Anr. I(2006)CPJ-416(Orissa State Commission).

11- Ratio of the aforesaid cases is that after giving full and final settlement receipt, insured would be estopped from raising any other plea. But we have already in earlier part of the order, recorded that final and full payment receipt taken from the complainant, appears to be forced, as no payment directly was made to him. Rather, opposite party no.1 had made payment to opposite party no.2.Therefore, this receipt is not reliable. In view of this aspect, authorities referred by opposite party no.1, would be of no consequence in this case.

12- Further, it was argued by opposite party no.1 that loss has properly been assessed by the surveyor and report can not be brushed aside. On it, again reference was made to National Insurance Co. Ltd. Vs. Rajesh Kumar I(2009)CPJ-292(Jharkhand State Commission) and Bhim Singh Vs National Ins. Co. Ltd. & Anr. I(2009)CPJ-106(UT Chandigarh State Commission). However, it is settled that report of surveyor can be brushed aside, in view of some specific reasons. In the instant case, reasons to ignore such report of the surveyor, are that he did not take into account, amount spent on repair of engine by the complainant, which got damaged in an accident. Under the policy, opposite party no.1 was liable to pay such damage to the complainant and paid it partly. It is for such reason that report of surveyor in entirety in this case, is not acceptable.

13- Deficiency in services on part of opposite party no.1 in this case, is fully established. Therefore, we allow this complaint and direct opposite party no.1, to pay the amount spent on repair of the engine by the complainant, in terms of policy Ex.R4, applying section-1 of the policy. For thrusting this litigation complainant, causing sufferance to him, they are ordered to pay compensation and litigation costs, jointly assessed at Rs.4000/-. Order be complied within 45 days of receipt of copy of order. Copy of order be provided to the parties free of charge.

Gurbax Singh Gill son of Sh. Jagjiwan Singh Gill, Prop. M/s Ranbir Enterprises, K-106, Phase-VII, Dhandari Kalan, Focal Point, Ludhiana.



…..Complainant.

Versus



1- Royal Sundaram Alliance Insurance Company Limited, 46, Whites Road, Chennai-600 014, Ph.No.91-44-28517387.

2- Stan Autos, Sherpur, G.T. Road, Ludhiana.

…..Opposite parties.







O R D E R








1- Complainant owner of Alto car, had got it insured from opposite party no.1-Royal Sundaram Alliance Ins. Co. The car was purchased on 25th May, 2007. On 9.12.2008 at 7.00 p.m., the car got struck in a pond of water, created due to rough road and leakage of sewerage. Complainant accelerated the vehicle, to bring it out of the rough road pond, but without success. Thereafter, the vehicle failed to start. Then he called his factory workers, located at a distance of about half kilometer from that spot and with the help of those workers, pushed down the car and brought it to his factory at 7.30 p.m. Next morning, called engineers from Stan Autos, opposite party no.2, who deputed Sh. Sandeep Kumar to his factory and took vehicle to the workshop, by towing with a maruti van.


On checking of car, it was found that lower part thereof, was damaged, due to leakage of oil. The vehicle was got repaired, as surveyor Sh. Yogesh Kochhar of opposite party no.1, refused to meet required amount spent on repair of the vehicle. Sh. Yogesh Kochhar told them that payment of expenditure, to repair his vehicle, would directly be made to the company. Subsequently, opposite party refused to pay the amount spent on repair of the engine, due to damage thereto. Consequently, by filing this complaint u/s 12 of the Consumer Protection Act, 1986, sought compensation from opposite party.

2- Opposite party no.1 in reply, pleaded that complaint isn’t maintainable, being frivolous and there is no deficiency in service on their part. Averred that claim lodged by the complainant under the insurance policy, was registered, entertained, processed and after receipt of report of surveyor Sh. Yogesh Kochhar, claim of the complainant was settled and paid Rs.703/-, in terms of assessment made by the surveyor. As per instructions of the complainant, the claim was directly paid to repairer opposite party no.2, vide letter dared 22.12.2008, with intimation to the complainant, in full and final settlement of the claim. Payment to opposite party no.2 was made after getting discharge voucher dated 20.12.2008 signed from the complainant.


But complainant with malicious intention, has filed this complaint. After giving voluntary discharge voucher in favour of opposite party no.1, complainant is not entitled to file this complaint. There is no deficiency in service on their part. Rest of the allegations of the complainant have been controverted and denied, including that vehicle was struck in a pond on 9.12.2008, wherein engine was damaged. Also denied that the vehicle was towed to workshop of opposite party no.2. Complainant never got the vehicle repaired at own costs, on protest.

3- Opposite party no.2 did not contest the complaint and is being proceeded exparte.

4- Contesting parties, in support of their respective pleadings, adduced evidence by way of affidavits and documents. We have heard complainant in person, ld. counsel for opposite parties and gone through the entire record.

5- In claim form Ex.R1, complainant mentioned that while returning to his factory premises, the car suddenly came to halt on road near Sham Steel Mill. On being raised the claim under insurance policy, copy of which is Ex.R4, opposite party had availed services of Sh. Yogesh Kochhar, surveyor, who vide report Ex.R3, found the vehicle having hit marks on its under body portion. The oil pump was found torn and the floor pan was having scratch marks. On stripping the engine, it was found that due to overheating, after the drainage of lube oil, connecting rod bearing of cylinder no.2 got melted and fused with the crank. After repair and re-inspection, he found recommended parts replaced. In view of the policy, after applying excess clause and deducting Rs.500/- rounded out, net payable claim of Rs.712/- found. This assessment of payable claim was arrived by him under summary of assessment as under:-



Summary of Assessment Claimed Assessed.

Total Labour charges 89988.80 393.26

Loss Assessed -- 500/-

Total cost of bill 15,484.50 952.47

Total 24,472.30 845.73

On metal parts 10.00 85.65

Plastic Rubber Parts 50.00 48.00

Glass Parts 0%

NET ASSESSED LOSS Rs. Rounded 712.08



6- The aforesaid amount of Rs.712/- was directly paid by opposite party no.1 to opposite party no.2, under their official letter Ex.R5 dated 22.12.2008. Because defence taken is that complainant had directed to pay charges directly to the repairer of the vehicle. Such payment was made under the policy, in full and final settlement of the claim. On the same day, opposite party also obtained satisfaction voucher Ex.R2 dated 28.12.2008 from the complainant, as full discharge of his claim under the insurance policy, qua damage caused to his vehicle in an accident on 9.12.2008. This receipt Ex.R2 is of Rs.703/- only. Whereas, assessment of payable amount was of Rs.712/-. Actually, opposite party no.1 had paid to opposite party no.2, Rs.703/- under receipt Ex.R5.

7- According to the complainant, who argued his case in person, his signatures on satisfaction voucher, were obtained in advance and no payment was directly made by opposite party no.1. He never gave full discharge of liability of opposite party under the policy. There appears force in such contention. Because when no payment directly was made by opposite party no.1 to the complainant under the policy, then there was no necessity having taken receipt (Ex.R2) from him. As they had directly made payment to opposite party no.2, under receipt Ex.R5 to them and according to defence, this was done as per instructions of the complainant. Though, there is no proof having given such instructions by the complainant, authorizing opposite party no.1 to make direct payment to opposite party no.2. In these aspects of the matter, we don’t take receipt Ex.R2 given by the complainant to opposite party no.1, as full and final settlement of his claim under the policy.

8- It is argued on behalf of opposite party no.1 that insurance condition of the vehicle was infringed, as he had drove the vehicle engine which was having no oil and on account of driving vehicle without oil in the engine, the same got seized. So, it was incidental damage to the engine, due to act of the complainant, which was not covered under the policy. Therefore, amount spent to repair seized engine of the veheicle, was not payable to the complainant. In support, reference was made to a letter Ex.C2, addressed to the complainant.


It is mentioned in the letter that engine oil level was totally nil in the engine of the vehicle. Engine was not getting cranked due to running of engine without engine oil. So, conveyed him that surveyor of the insurance company has not passed the claim, as engine repair does not come under warranty liability. Then complainant on that intimation Ex.C2 of opposite party no.2, made payment of their bill under protest. Job card Ex.C3 of the vehicle issued to the complainant by opposite party no.2, shows that total bill of Rs.14,400/- was raised by them. On the job card, he also mentioned making payment of the bill under protest, as surveyor of opposite party no.1 had refused his genuine claim and bill.

9- As per case of the complainant, the vehicle got struck in rough road pond having water and when accelerated the vehicle, to bring it out of ditch, the engine got damaged, leading to leakage of the oil. Then with the help of workers of the factory, pulled out the vehicle from the ditch and drove it half kilometer to his factory. Next day, mechanic of opposite party no.2 towed vehicle to their workshop for repairs.

10- But opposite party took plea that loss to the engine was consequential loss, so wasn’t payable to the complainant under the policy. But we can not lose sight that damage to engine in this case, appears to be accidental. Because when driving, the vehicle got struck in a pond filled with water and in that process, bottom of the car got damaged, leading to engine oil flowing out of the engine, resultantly, causing engine seizure. Damage to the vehicle as such was suffered on account of accident, when it got struck in a pond. Such damage can not be taken to be consequential loss.


By washing their hands off, by paying only labour charges etc., amounting to Rs.703/-, would certainly amount in this case to deficiency in service on part of opposite party no.1. Because they were also liable to pay under the policy, amount spent on repairs of the engine by the complainant, in terms of section-1 of the policy Ex.R4. Opposite party no.1 was required to deduct depreciation of the parts, as mentioned in the policy and pay balance amount so spent on repair to the complainant.


By not doing so, certainly they would be guilty of not rendering proper services to its own consumer. We would be unfair to opposite party no.1, if don’t refer contention that complainant accepted the amount of Rs.703/- as full and final payment, so now estopped to file this complaint. In support, reliance was placed on Jiyajeerao Cotton Mills Ltd. Vs New India Assurance Co. Ltd. I(1992)CPJ-292(NC); Savitri Salt Suppliers Vs Oriental Ins. Co. Ltd. II(2009)CPJ-223(Tripura State Commission); Oriental Ins. Co. Ltd. Vs Shaheenkhan Mubassir Alam Khan IV(2005)CPJ-414(Maharastra State Commission); K.R. Rajashekar Vs New India Assurance Co. Ltd. IV(2005)CPJ-623(Karnatka State Commission) and Metrananda Behera Vs New India Assurance Co. Ltd. & Anr. I(2006)CPJ-416(Orissa State Commission).

11- Ratio of the aforesaid cases is that after giving full and final settlement receipt, insured would be estopped from raising any other plea. But we have already in earlier part of the order, recorded that final and full payment receipt taken from the complainant, appears to be forced, as no payment directly was made to him. Rather, opposite party no.1 had made payment to opposite party no.2.Therefore, this receipt is not reliable. In view of this aspect, authorities referred by opposite party no.1, would be of no consequence in this case.

12- Further, it was argued by opposite party no.1 that loss has properly been assessed by the surveyor and report can not be brushed aside. On it, again reference was made to National Insurance Co. Ltd. Vs. Rajesh Kumar I(2009)CPJ-292(Jharkhand State Commission) and Bhim Singh Vs National Ins. Co. Ltd. & Anr. I(2009)CPJ-106(UT Chandigarh State Commission). However, it is settled that report of surveyor can be brushed aside, in view of some specific reasons. In the instant case, reasons to ignore such report of the surveyor, are that he did not take into account, amount spent on repair of engine by the complainant, which got damaged in an accident. Under the policy, opposite party no.1 was liable to pay such damage to the complainant and paid it partly. It is for such reason that report of surveyor in entirety in this case, is not acceptable.

13- Deficiency in services on part of opposite party no.1 in this case, is fully established. Therefore, we allow this complaint and direct opposite party no.1, to pay the amount spent on repair of the engine by the complainant, in terms of policy Ex.R4, applying section-1 of the policy. For thrusting this litigation complainant, causing sufferance to him, they are ordered to pay compensation and litigation costs, jointly assessed at Rs.4000/-. Order be complied within 45 days of receipt of copy of order. Copy of order be provided to the parties free of charge. File be completed and consigned to record room.

Gurbax Singh Gill son of Sh. Jagjiwan Singh Gill, Prop. M/s Ranbir Enterprises, K-106, Phase-VII, Dhandari Kalan, Focal Point, Ludhiana.



…..Complainant.

Versus



1- Royal Sundaram Alliance Insurance Company Limited, 46, Whites Road, Chennai-600 014, Ph.No.91-44-28517387.

2- Stan Autos, Sherpur, G.T. Road, Ludhiana.

…..Opposite parties.






O R D E R






1- Complainant owner of Alto car, had got it insured from opposite party no.1-Royal Sundaram Alliance Ins. Co. The car was purchased on 25th May, 2007. On 9.12.2008 at 7.00 p.m., the car got struck in a pond of water, created due to rough road and leakage of sewerage. Complainant accelerated the vehicle, to bring it out of the rough road pond, but without success. Thereafter, the vehicle failed to start. Then he called his factory workers, located at a distance of about half kilometer from that spot and with the help of those workers, pushed down the car and brought it to his factory at 7.30 p.m. Next morning, called engineers from Stan Autos, opposite party no.2, who deputed Sh. Sandeep Kumar to his factory and took vehicle to the workshop, by towing with a maruti van.


On checking of car, it was found that lower part thereof, was damaged, due to leakage of oil. The vehicle was got repaired, as surveyor Sh. Yogesh Kochhar of opposite party no.1, refused to meet required amount spent on repair of the vehicle. Sh. Yogesh Kochhar told them that payment of expenditure, to repair his vehicle, would directly be made to the company. Subsequently, opposite party refused to pay the amount spent on repair of the engine, due to damage thereto. Consequently, by filing this complaint u/s 12 of the Consumer Protection Act, 1986, sought compensation from opposite party.

2- Opposite party no.1 in reply, pleaded that complaint isn’t maintainable, being frivolous and there is no deficiency in service on their part. Averred that claim lodged by the complainant under the insurance policy, was registered, entertained, processed and after receipt of report of surveyor Sh. Yogesh Kochhar, claim of the complainant was settled and paid Rs.703/-, in terms of assessment made by the surveyor. As per instructions of the complainant, the claim was directly paid to repairer opposite party no.2, vide letter dared 22.12.2008, with intimation to the complainant, in full and final settlement of the claim.


Payment to opposite party no.2 was made after getting discharge voucher dated 20.12.2008 signed from the complainant. But complainant with malicious intention, has filed this complaint. After giving voluntary discharge voucher in favour of opposite party no.1, complainant is not entitled to file this complaint. There is no deficiency in service on their part. Rest of the allegations of the complainant have been controverted and denied, including that vehicle was struck in a pond on 9.12.2008, wherein engine was damaged. Also denied that the vehicle was towed to workshop of opposite party no.2. Complainant never got the vehicle repaired at own costs, on protest.

3- Opposite party no.2 did not contest the complaint and is being proceeded exparte.

4- Contesting parties, in support of their respective pleadings, adduced evidence by way of affidavits and documents. We have heard complainant in person, ld. counsel for opposite parties and gone through the entire record.

5- In claim form Ex.R1, complainant mentioned that while returning to his factory premises, the car suddenly came to halt on road near Sham Steel Mill. On being raised the claim under insurance policy, copy of which is Ex.R4, opposite party had availed services of Sh. Yogesh Kochhar, surveyor, who vide report Ex.R3, found the vehicle having hit marks on its under body portion. The oil pump was found torn and the floor pan was having scratch marks. On stripping the engine, it was found that due to overheating, after the drainage of lube oil, connecting rod bearing of cylinder no.2 got melted and fused with the crank. After repair and re-inspection, he found recommended parts replaced. In view of the policy, after applying excess clause and deducting Rs.500/- rounded out, net payable claim of Rs.712/- found. This assessment of payable claim was arrived by him under summary of assessment as under:-



Summary of Assessment Claimed Assessed.

Total Labour charges 89988.80 393.26

Loss Assessed -- 500/-

Total cost of bill 15,484.50 952.47

Total 24,472.30 845.73

On metal parts 10.00 85.65

Plastic Rubber Parts 50.00 48.00

Glass Parts 0%

NET ASSESSED LOSS Rs. Rounded 712.08



6- The aforesaid amount of Rs.712/- was directly paid by opposite party no.1 to opposite party no.2, under their official letter Ex.R5 dated 22.12.2008. Because defence taken is that complainant had directed to pay charges directly to the repairer of the vehicle. Such payment was made under the policy, in full and final settlement of the claim. On the same day, opposite party also obtained satisfaction voucher Ex.R2 dated 28.12.2008 from the complainant, as full discharge of his claim under the insurance policy, qua damage caused to his vehicle in an accident on 9.12.2008. This receipt Ex.R2 is of Rs.703/- only. Whereas, assessment of payable amount was of Rs.712/-. Actually, opposite party no.1 had paid to opposite party no.2, Rs.703/- under receipt Ex.R5.

7- According to the complainant, who argued his case in person, his signatures on satisfaction voucher, were obtained in advance and no payment was directly made by opposite party no.1. He never gave full discharge of liability of opposite party under the policy. There appears force in such contention. Because when no payment directly was made by opposite party no.1 to the complainant under the policy, then there was no necessity having taken receipt (Ex.R2) from him.


As they had directly made payment to opposite party no.2, under receipt Ex.R5 to them and according to defence, this was done as per instructions of the complainant. Though, there is no proof having given such instructions by the complainant, authorizing opposite party no.1 to make direct payment to opposite party no.2. In these aspects of the matter, we don’t take receipt Ex.R2 given by the complainant to opposite party no.1, as full and final settlement of his claim under the policy.

8- It is argued on behalf of opposite party no.1 that insurance condition of the vehicle was infringed, as he had drove the vehicle engine which was having no oil and on account of driving vehicle without oil in the engine, the same got seized. So, it was incidental damage to the engine, due to act of the complainant, which was not covered under the policy. Therefore, amount spent to repair seized engine of the veheicle, was not payable to the complainant. In support, reference was made to a letter Ex.C2, addressed to the complainant. It is mentioned in the letter that engine oil level was totally nil in the engine of the vehicle. Engine was not getting cranked due to running of engine without engine oil. So, conveyed him that surveyor of the insurance company has not passed the claim, as engine repair does not come under warranty liability.


Then complainant on that intimation Ex.C2 of opposite party no.2, made payment of their bill under protest. Job card Ex.C3 of the vehicle issued to the complainant by opposite party no.2, shows that total bill of Rs.14,400/- was raised by them. On the job card, he also mentioned making payment of the bill under protest, as surveyor of opposite party no.1 had refused his genuine claim and bill.

9- As per case of the complainant, the vehicle got struck in rough road pond having water and when accelerated the vehicle, to bring it out of ditch, the engine got damaged, leading to leakage of the oil. Then with the help of workers of the factory, pulled out the vehicle from the ditch and drove it half kilometer to his factory. Next day, mechanic of opposite party no.2 towed vehicle to their workshop for repairs.

10- But opposite party took plea that loss to the engine was consequential loss, so wasn’t payable to the complainant under the policy. But we can not lose sight that damage to engine in this case, appears to be accidental. Because when driving, the vehicle got struck in a pond filled with water and in that process, bottom of the car got damaged, leading to engine oil flowing out of the engine, resultantly, causing engine seizure. Damage to the vehicle as such was suffered on account of accident, when it got struck in a pond. Such damage can not be taken to be consequential loss. By washing their hands off, by paying only labour charges etc., amounting to Rs.703/-, would certainly amount in this case to deficiency in service on part of opposite party no.1.


Because they were also liable to pay under the policy, amount spent on repairs of the engine by the complainant, in terms of section-1 of the policy Ex.R4. Opposite party no.1 was required to deduct depreciation of the parts, as mentioned in the policy and pay balance amount so spent on repair to the complainant. By not doing so, certainly they would be guilty of not rendering proper services to its own consumer. We would be unfair to opposite party no.1, if don’t refer contention that complainant accepted the amount of Rs.703/- as full and final payment, so now estopped to file this complaint.


In support, reliance was placed on Jiyajeerao Cotton Mills Ltd. Vs New India Assurance Co. Ltd. I(1992)CPJ-292(NC); Savitri Salt Suppliers Vs Oriental Ins. Co. Ltd. II(2009)CPJ-223(Tripura State Commission); Oriental Ins. Co. Ltd. Vs Shaheenkhan Mubassir Alam Khan IV(2005)CPJ-414(Maharastra State Commission); K.R. Rajashekar Vs New India Assurance Co. Ltd. IV(2005)CPJ-623(Karnatka State Commission) and Metrananda Behera Vs New India Assurance Co. Ltd. & Anr. I(2006)CPJ-416(Orissa State Commission).

11- Ratio of the aforesaid cases is that after giving full and final settlement receipt, insured would be estopped from raising any other plea. But we have already in earlier part of the order, recorded that final and full payment receipt taken from the complainant, appears to be forced, as no payment directly was made to him. Rather, opposite party no.1 had made payment to opposite party no.2.Therefore, this receipt is not reliable. In view of this aspect, authorities referred by opposite party no.1, would be of no consequence in this case.

12- Further, it was argued by opposite party no.1 that loss has properly been assessed by the surveyor and report can not be brushed aside. On it, again reference was made to National Insurance Co. Ltd. Vs. Rajesh Kumar I(2009)CPJ-292(Jharkhand State Commission) and Bhim Singh Vs National Ins. Co. Ltd. & Anr. I(2009)CPJ-106(UT Chandigarh State Commission). However, it is settled that report of surveyor can be brushed aside, in view of some specific reasons. .


In the instant case, reasons to ignore such report of the surveyor, are that he did not take into account, amount spent on repair of engine by the complainant, which got damaged in an accident. Under the policy, opposite party no.1 was liable to pay such damage to the complainant and paid it partly. It is for such reason that report of surveyor in entirety in this case, is not acceptable.

Satinder Pal Singh, aged 47 years, C/o Utility Trading Engineers Pvt. Ltd., SCO No. 309, Sector 35-B, Chandigarh.

….…Complainant



V E R S U S





1) M/s Royal Sundram Allianz Insurance Co. Ltd., Corporate Office, Sundram Towers, Claims Departments, 45 & 46 Whites Road, Chennai, through its Divisional Manager.



2) M/s Royal Sundram Allianz Insurance Co. Ltd., SCO No. 11, Sector 26, 1st Floor, U.T. Chandigarh.



.…..Opposite Parties








Concisely put, Satinder Pal Singh – Complainant obtained Health Shield Insurance vide Annexure C-1, effective from 24.7.2007 to 23.7.2007 for self, wife – Smt. Harcharan Kaur, daughter & son for a sum insured of Rs.1.50 lacs each, on payment of Rs.8090/- as premium. The wife of the Complainant felt severe abdomen pain and was diagnosed of having Fibroids in the Uterus. Medical opinion of Dr. Mangla Dogra, MBBS, MD, Gynecologist was taken, who suggested to perform Hystrectomy within four days. The position of the insured - Smt. Harcharan Kaur and the medical opinion of Dr. Mangla was intimated to OP No. 2 vide letter 17.12.2007 (Annexure C-2). The operation of Hystrectomy was performed upon the insured on 21.12.2007. She was discharged on 23.12.2007 and was advised bed rest for next three weeks vide discharge slip Annexure C-3.


On 9.1.2008, the Complainant had preferred claim for the reimbursement of the expenditure under the terms of the Policy with OP No. 1, along with relevant documents as demanded by the OPs, for a total sum of Rs.41,152/-. But instead of processing and paying the genuine claim, the Complainant was shocked to receive a letter dated 14.2.2008 (Annexure C-5) from OP No. 1, whereby the claim preferred by him was rejected on the ground of pre-existing disease. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

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

3] OPs filed reply admitting the factual matrix of the case. It was pleaded that on receipt of the claim, they forwarded the same to the expert panel of doctors of the TPA Medicare Services, who opined that two Fibroids of 11 x 11 x 12 cm and 7 x 7 x 7 cm could not have developed over 1 ½ years and were, therefore, pre-existing. Hence, the claim was not admissible and not payable (Ex.2). As such, after thorough consideration of the medical documents filed by the Complainant and after receipt of the aforesaid medical experts opinion, they had denied the claim of the Complainant on account of pre-existing clause of the Policy terms. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

4] Parties led evidence in support of their contentions.

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

6] Annexure C-1 is Health Shield Insurance Policy, showing that the Complainant, his wife – Harcharan Kaur and their son & daughter were covered for the period from 24.7.2007 to 23.7.2008. There is no dispute about it that when Harcharan Kaur felt some problem, she got the opinion of the doctor, who diagnosed it as Fibroids in the Uterus and performed Hystrectomy on 21.12.2007.


The claim was repudiated by the OPs vide letter Annexure C-5 on the ground that Fibroids are slow growing tumours and it takes long time to attain the present size and it could not be developed over 1½ year and was, therefore, a pre-existing disease. The learned counsel referred to the definition of pre-existing disease and argued that it is not necessary that the insured person was aware of this disease, illness, medical condition or injury, but if it is proved to have existed before the Complainant took the policy, no claim amount would be paid to be Complainant.


The learned counsel for the OP has also referred to Annexure C-3, which is the discharge slip issued by Dr. Mangla Dogra, mentioning that there was pain in the abdomen for one year and severe pain for 3 days before the patient was admitted on 20.12.2007. The learned counsel, therefore, argued that since the pain was existing for one year, Fibroids existed since then and it was a pre-existing disease. We do not find any merit in this argument. No evidence has been produced by the Ops to prove that Fibroids existed in the Uterus before the Complainant took the policy.


The pain in abdomen cannot be connected to Fibroids, nor is there any such evidence adduced to prove that if there is pain in the abdomen it would be only due to Fibroids in the Uterus. There could be hundred reasons for the pain in the abdomen. Further, the contention that Fibroids are slow growing tumours and takes long time to attain present size as mentioned in Annexure C-5 is only a presumption and not a medical opinion. Dr. Mangla Dogra, in her report (Annexure C-6) admitted this fact that Fibroids are slow growing tumours, but sometimes may grow suddenly because of some degeneration.


It is also mentioned that it is not a tumour generally, patients may be aware of. On the basis of this evidence, the learned counsel for the Complainant argued that the patient did not know at all about the presence of Fibroids in her Uterus when the Complainant took the policy and further, even the presence of Fibroids on the date of the policy is not proved at all. The OPs have repudiated the claim on presumptions and conjectures, without any evidence to prove their contention.

7] It is also argued by the learned counsel for the Complainant that the OPs provided to them Annexure C-1 and no terms & conditions of the type of Annexure R-5 were supplied to them and they, therefore, did not know anything about the definition of pre-exiting disease or that the claim can be repudiated on any such ground. There appears to be merit in this contention of the Complainant. The OPs have also produced a copy of the Policy as Annexure R-1, but strangely Annexure R-5 is a different document and not a part of Annexure R-1. It is true that there is a note on Annexure R-1 that this Schedule forms part of the terms and conditions attached herewith, but actually no terms & conditions were attached either with Annexure R-1 or with Annexure C-1.


Otherwise also, Annexure R-5 is not the terms and conditions, but it is termed as Health Shield Premier Insurance Policy. There are different headings under Annexure R-5, such as “important notes about this insurance” and “persons who can be insured” etc. It is, therefore, a case in which the terms & conditions of the Policy were not brought to the notice of the Complainant, though these have been introduced subsequently to deny the claim. Annexure R-5, therefore, cannot be considered to justify the repudiation.

8] Even the condition imposed by the OP that the claim would not be admissible even if the insured did not know about the existence of the disease, is one sided and in favour of the OPs alone. The OPs have framed this rule in their own favour, simply to deny the claims of genuine claimants. Ordinarily, the OPs, should have first examined the Complainant and his family members and if there was any pre-existing disease, they should have denied insurance cover to the insured at that stage. On the other hand, the OP- Insurance Company obtained the premium without any hesitation or objection, but when the matter came to the point of paying the claim, they declined to pay the same on this ground.

9] In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly, allowed. The OPs are directed to pay to the Complainant a sum of Rs.41,152/-, along with Rs.5,000/- as costs of litigation, within 30 days from the date of receipt of the copy of the order, failing which they would be liable to pay the same along with interest @9% per annum on the entire amount since the filing of the present complaint i.e. 21.04.2009, till the amount is actually paid to the Complainant.

F.A.No.763 OF 2007 AGAINST C.D.NO.139 OF 2006 DISTRICT CONSUMER FORUM-II VIJAYAWADA
Between

1. Royal Sundaram Alliance Insurance
Company Ltd., rep. by its Branch Manager
D.No.40-1-55/A, opposite Varun Bajaj
Near Benz Circle, Vijayawada
2. M/s Royal Sundaram Alliance Insurance
Company Ltd., Corporate Claims Departments
46, White Road, Chennai being rep. by its
Legal officer

Appellants/opposite parties

A N D



M/s M.V.Ranga Prasad & Company
rep. by its Managing Director,
Sri M.V.Ranga Prasad R/o D.No.60-3-23
Coastal Building, Near ITI Bus Stop,
Ashok Nagar, Vijayawada.
Respondent/opposite party

Counsel for the Appellant Sri Kota Subba Rao

Counsel for the Respondents Sri Y.Surya Mohan


QUORUM: SRI SYED ABDHULLAH, PRESIDING MEMBER

&

SRI R.LAKSHMINARSIMHA RAO, MEMBER



WEDNESDAY THE FOURTH DAY OF NOVEMBER

TWO THOUSAND NINE



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



The opposite parties are the appellants. The appeal is challenge to the order of the District Forum-II, Krishna in C.D.No.139 of 2006.

The facts leading to filing of the complaint are that the respondent is a company in the field of civil engineering contracts and execution of various projects in India. The respondent has got issued their L&T CK-170 Excavator with a registration S.I.No.G-225 with the appellants. On 16.8.2003 the appellants have issued insurance policy bearing No.VC00015403000100. On 18.12.2003 the excavator accidentally sunk into the sea water at Kudamkulam Nuclear Power Project. The respondent has informed the appellants about the incident on the same day. The appellants deputed a surveyor to inspect the machine and the accident site. The surveyor visited the accident site and inspected the machine.

The appellants had deputed another surveyor to visit the accident site and inspect the machine. After intimating the appellants about the accident the respondent got the machine repaired at their own expenses and thereby incurred an amount of Rs.4,53,470/-. The appellants are acquainted with the agency which has got repaired the machine and also the actual expenditure incurred by the respondent. The respondent lodged claim along with bills and receipts in support of the expenditure said to have been incurred for repair of the machine. In spite of several reminders by the respondent, his claim remained unsettled. However, on 1.12.2004 the appellants repudiated the claim on the grounds that over turning during operational use as a tool of trade is not within the scope of the insurance policy. The respondent had no idea of claim. The surveyor was not given an opportunity to inspect the replacement of spare parts.

The overturning of the machine during the operational use not covered by the scope of the policy is not mentioned anywhere in the insurance policy. The surveyor and other officials who visited the accident place were duly informed about the repairs to be carried out to the machine. The surveyor had inspected the machine and the repairs were also done in his presence. The surveyor promised the respondent that he can proceed with the repairs to the machine and entire amount would be reimbursed to him. The respondent has got issued legal notice through his advocate on 30.12.2005 demanding the appellants to pay the amount due and the second appellant had not given any reply. Hence, prayed for reimbursement of an amount of Rs.5,27,529/- along with Rs.2 lakhs towards damages for causing delay in settlement of the claim.

The appellants have resisted the claim by filing counter. It was contended that immediately after getting the information of accident the appellants appointed the surveyor who was available at the site before recovering the machine from the sea water. It is the duty of the respondent to submit the estimate for repairs before commencing the repairs. Till the date of filing of the claim, the estimate was not submitted by the respondent stating in their correspondence that they thought that the spot surveyor and the assessor had collected the required papers from the repairers.

The respondent had submitted the claim along with required papers in the month of August 2004. The overturning of the machine during its operational use as a tool of trade is not in the scope of the insurance policy. On 22.12.2003 the surveyor had inspected the machine and had taken photos. In their correspondence the respondent had stated that they got repaired the machine at their own cost due to the work emergency and it was to be completed on war foot basis, they had commissioned the machine immediately and put it to work. The respondent has no idea of coming for a claim at that time. The surveyor was not informed about any repairs, except the cleaning and assembling at the site. The surveyor has not given a chance to inspect the repairs/replacement of the parts. Therefore, the appellants repudiated the claim of the respondent. The excavator was removed immediately from loose soil and it was in working condition. As per the report of motor assessor the net assessment is Rs.79,198/-. The respondent as an after thought has been claiming an amount of Rs.5 lakhs towards the repairs of the machine. The claim was submitted by the respondent at a belated stage by suppressing the fact.

The proprietor of the respondent firm has filed his affidavit and documents Exs.A1 to A28. On behalf of the appellants, the Deputy General Manager of the second appellant company has filed his affidavit and also copy of survey check list and assessment report which was marked as Ex.B1.

The District forum has allowed the complaint against the appellants with a direction to pay Rs.4 lakhs towards the reimbursement of the amount stated to have been incurred by the respondent and Rs.25,000/- towards damages as also Rs.5,000/- towards costs.

Both parties have filed their respective written arguments.

Points for consideration are:

1. Whether the overturning of the excavator during its operational use as a tool of trade is covered by the terms and conditions of the insurance policy?



2. Whether there was any deficiency in service on the part of the appellant in repudiating the claim of the respondent?





3. To what relief?

POINTS NO.1 AND 2 The respondent had obtained insurance policy bearing No.VC00015403000100 to cover the risk of their excavator, L & T CK 170 Excavator for the period commencing from 16.8.2003. While so on 18.12.2003 respondent states that the excavator accidentally sunk into the sea water at Kudamkulam Nuclear Power Project. Thereafter intimation of the accident, deputation of surveyor had taken place.

The appellants repudiated the claim of the respondents through repudiation letter dated 1.12.2004 on the following three grounds:

1. Overturning during operation use as a tool of trade is not in the scope of the policy



2. The respondent has no idea for a claim as it has got the repairs done at it s own costs even though it has to be done it due to the work emergency and repairs has to be done on war footing basis.



3. The surveyor of the appellant has not given any opportunity to inspect the repairs/replacement of spare parts at any point of time.



In reply to the first ground of repudiation, the respondent has submitted that the policy does not cover the use of the vehicle for racing, pace making, speed testing, use for the carriage of passenger for hire or reward, use whilst drawing a trailer. Therefore, it was sought to be stated that the aforesaid four exclusions only are mentioned in the insurance policy and the first ground of repudiation which the policy does not contain has no bearing to the repudiation of the claim of the respondent. A perusal of insurance policy endorsement Ex.A1 copy of certificate of insurance Ex.A2 and copy of the policy schedule Ex.A3 would show that the endorsement date is 16.8.2003 and the commercial vehicle insurance policy endorsement was issued subject otherwise to the terms exceptions, conditions and limitations of the insurance policy. Certificate of insurance provides for the driver to hold an effective driving license at the time of accident and should not be disqualified from holding or obtaining such driving license. The limitation as to use of the vehicle is mentioned as “use in connection with the insured’s business”. The use of the vehicle for racing, pace making, reliability trial or speed testing, use for the carriage of passengers for hire or reward, use whilst drawing a trailer except the towing of any one disabled mechanically propelled vehicle have not been covered b the terms of the insurance policy. The policy schedule restricts the limitation as to the use of the machine as per the provisions of the Motor Vehicle Rules 1989. The maximum limit of liability for personal accident cover for owner is stated to be Rs.2 lakhs and there from the amount deductable under Sec. I is Rs.12,500/- and also percentage of no claim bonus has been mentioned in the policy schedule. Keeping in view of the terms and conditions, if we proceed with the matter it becomes clear that the first ground of repudiation that over turning of the machine during operational use as a tool of trade does not find place in the terms and conditions of the insurance policy. Therefore, we are of the opinion that the overturning of the excavator has not been covered under the exclusionary causes of the insurance policy.

The respondent has claimed Rs.5,27,529/-. Admittedly, the respondent has not submitted the estimate and stated that the entire repairs were carried out in the presence of assessor who inspected the machine. However the contention is not supported by any evidence on record. The respondent in its letter dated 29.10.2004 has stated that they thought that the spot surveyor and assessor had collected the required papers from the repairer. The respondent is not supposed to throw blame on the surveyor for not submitting the estimates of the repairs. The appellants through letter dated 1.12.2004 Ex.A26 had insisted on submitting of estimate for repairs before commencing the repairs and till the date the estimate was not provided by the respondent though claim along with repair bills was submitted to the appellant. Further, the appellants in their letter dated 1.10.2004 had stated that the respondent had informed the surveyor that it had repaired the machine on its own cost, due to the work emergency and to be completed on war footing basis. It had commissioned the machine immediately and put into work. Basing on the statement the appellants contend that the respondent had no idea of coming for a claim at that time. We do not find any satisfactory reply from the respondent to the contention and in addition to that it is the contention of the appellant that the surveyor was not informed about any repairs except the cleaning and assembling at site and he was not given a chance to inspect the repairs/replacement of parts at any point of time. The excavator was in operation as a tool of trade at the time of accident. The appellant had relied upon IMT NO.47 under which the suit due to overwhelming of the machine is excluded. IMT 47-A runs as under:

Under Section 1 of the policy is in respect of loss or damage resulting from overturning arising out of the operation as a tool of such vehicle or of forming part of such vehicle or attached thereto except for loss or damage arising directly from fire explosion and self ignition or light or burglary, housebreaking or theft.



The respondent had contended that the exclusion of overturning of the machine from the purview of the insurance policy was not taken by the appellant in their letter Ex.A24 and the exclusionary clasue is revoked for repudiation of the claim only. It was further contended that in the event of exclusion of the machine overturning and used as tool of trade, the insurance company ought not to have sent an assessor to prepare estimation of the repairs. We do not accept the contention for the reason that the terms and conditions of the insurance are binding on both the parties, the insurer and the insured as well. Conduct of the respondent all through from the time of the accident support the contention of the appellants overturning of the vehicle was excluded from the purview of the terms laid down in the insurance policy. When the insurance policy does not cover the overturning of the machine while it is used as tool of trade, the appellant cannot be compelled to reimburse the expenses incurred by the respondent for repairing of the excavator. Therefore, the findings recorded by the District forum do not stand to the scrutiny in terms of the conditions laid down in the insurance policy. The appeal deserves to be allowed.

In the result, the appeal is allowed setting aside the order of the District Forum-II, Vijayawada in C.D.No.139 of 2006. Consequently the complaint is dismissed. No costs.

C.C.No.87 OF 2009.
Date of filing:06.04.2009.
Between :

Burramukku Sambi Reddy, S/o Venkatappa Reddy, C/o Kasturi Srinivasa Prasad, 4/48, Ramavarappadu, Vijayawada.

….. Complainant.
And

1. Royal Sundaram Alliance Insurance Co., Ltd., Rep: by its Branch Manager, Door

No.40-1-55/A, M.G. Road, Near Benz Circle, Vijayawada – 10.

2. Royal Sundaram Alliance Insurance Co., Ltd., Rep: by its Sr. Divisional Manager,

Corporate Claims Department, Sundaram Towers, 45 & 46, Whites Road,

Chennai – 600 014 (T.N.).

….. Opposite Parties.

This complaint is coming before us for final hearing on 05.01.2010, in the presence of Sri B.L.V. Phanesh Kumar, advocate for complainant and Sri Ch. Sreepathi Rao advocate for opposite parties and having stood over for consideration till this day, the Forum doth order the following:

O R D E R

This complaint is under Section of 12 of the Consumer Protection Act, 1986.


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

That the complainant is the owner of a lorry bearing No.AP-16 TV 2249 and he insured the same with the opposite parties vide policy No.VGC0018023000100 valid from 05.03.2008 to 04.02.2009. During the validity of the insurance policy the vehicle of the complainant met with an accident on the intervening night of 5/6-11-08, and the driver of the vehicle sustained injuries and a police report was given and the SHO, Tuni Rural registered FIR. Later on intimation to the complainant he informed the same to the opposite parties and brought the vehicle to Vijayawada, got repaired with the knowledge of the opposite parties and there after the complainant applied for reimbursement but the opposite parties delayed and there by the complainant sustained heavy monitory loss apart from mental agony. There after, the complainant addressed letters to the opposite parties but in vain and at lost the opposite party No.2 addressed a letter to the complainant on 11.02.2009 repudiating the claim without assigning any reasons. Hence, the complaint.

2. The opposite parties filed joint version interalia denying the averments of the complaint in general but admitted the issuance of policy and accident but contended that at the time of accident the driver has not drove the vehicle and that the cleaner of the vehicle drove the vehicle thereby the cleaner had no valid license at the time of accident as and such the opposite parties repudiated the claim which is correct and there is no any deficiency in service on the part of the opposite parties and infact the claim of the complainant is excessive and that the surveyor assessed the loss at Rs.94,400/- only but not as claimed by the complainant and the complainant is not entitled to the claim as claimed for and prayed to dismiss the complaint.

3. On behalf of the complainant the complainant himself filed an affidavit and got marked Exs.A1 to A8. On behalf of the opposite parties Sri G. Vinay Prakash filed an affidavit and got marked Exs.B1 to B5.

4. Heard both the counsel.

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

I) Whether there was deficiency in service on the part of the opposite parties?

II) Whether the repudiation of the claim by the opposite parties amounts to deficiency in service?



III) To what relief the complainant is entitled?



6. Point Nos.1 and 2: As could be seen from the material on hand there is no dispute that the complainant is the owner of the vehicle bearing No.AP 16 TV 2249 and it was insured with the opposite parties vide Ex.A2 and that the vehicle met with an accident and there after a report was given to the police Tuni Rural who registered FIR vide Ex.A3 and the police after completion of the investigation filed final challan against the driver of the complainant vide Ex.A4 and other documents are clear that the vehicle is having permit and that the driver sustained injuries etc. Further the accident was occurred while the police was in force and further there is no dispute that the vehicle was brought to Vijayawada and got repaired but the complainant failed to file any bills for the amount claimed and the surveyor report filed by the opposite party vide Ex.B2 discloses that the net loss assessed was Rs.94,400/- and the same was admitted by the opposite parties in their version and affidavit wherein it was noted “it is submitted that as per survey report this opposite parties liable to only Rs.94,400/- and in any circumstances the liability was only Rs.94,400/-“ that means the opposite parties have accepted their liability. That apart the complainant failed to rebut the above and also failed to show reasons or bills that he has incurred so much amount or more than Rs.94,400/-. As such the plea of the opposite parties has to be accepted. That apart the surveyor’ report is a valid document and there is no need to discard it, unless there is another surveyors report etc., but as it is there in one surveyor’s report and that surveyor is a qualified one so no need to discard Ex.B2. That apart, as the opposite parties admitted their liability so no need of further discussion. As it is repudiation of the claim on the ground that the driver had no valid driving license by the date of accident etc., is not correct and thereby the acts of the opposite parties amounts to deficiency in service and accordingly these points are answered.

7. Point No.3: In the result, the complaint is allowed and the opposite parties 1 and 2 (Jointly and severally) are directed to pay an amount of Rs.94,400/- (Rupees ninety four thousand and four hundred) only to the complainant and do pay Rs.2,000/- (Rupees two thousand) only towards costs. Rest of the claim if any claimed by the complainant is rejected. Time for compliance one month. If the opposite parties fails to comply the order of this Forum within the stipulated time the awarded amount carries interest at 9% p.a., till the date of payment

C. C. No. 101 OF 2009.
Date of filing: 17.04.2009.

Between :

Smt K. Kanaka Durga Krishna Murthy, W/o Kondaveeti S. Krishna Murthy, R/o. C.T.S.M. Hospital, Kalavapudi Agraharam, Mudinepalli Mandal, Krishna District.

..… Complainant.

And

1. Royal Sundaram Alliance Insurance Company Limited., Rep: by its Duly

Authorized Signatory, Situated at Sundaram Towers 45 & 46, White Road,

Chennai – 600 014.
2. The Branch Manager, Royal Sundaram Alliance Insurance Company Limited.,

Benz Circle, Vijayawada.

….. Opposite Parties.

This complaint is coming before us for final hearing on 05.01..2010 in the presence of Sri Ch. Ajay Kumar, advocate for complainant and Sri Ch. Sreepathi Rao, advocate for opposite parties 1 and 2 and having stood over for consideration till this day, the Forum doth order the following :

O R D E R

This complaint is under Section 12 of the Consumer Protection Act, 1986.

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

That the husband of the complainant purchased three policies from the opposite parties in the name of the complainant i.e., I) Health Shield Insurance for the period from 27.04.2007 to 26.04.2009, II) Hospital Cash Insurance for the period from 18.09.2007 to 17.09.2009 and III) Secure All fro the period from 16.10.2007 to 15.10.2009 by paying premiums and each policy for a sum of Rs.2,00,000/- and for hospital charges of Rs.5,000/- per day. The opposite parties accepted the proposals and premiums and issued policies in the name of the complainant. While so, the complainant fell sick on 19.09.2008 and she was taken to Latha Super Specialty Hospital, Suryaraopet, Vijayawada on 20.09.2008 and the doctors therein after through examination came to conclusion that the complainant was suffering from Chronic Kidney disease, Tubercular and Axillary Lymphe denitis, seizures disorder and so she was admitted in the hospital and was discharged on 03.10.2008. The complainant spent Rs.36,472/-. Again she was taken to Manipal Super Specialties Hospital for better treatment and she was admitted on 16.10.2008 and discharged on 27.10.2008, there also the complainant incurred an amount of Rs.65,578/-. After discharge the complainant intimated the same to the opposite parties for reimbursement by phone and there after the opposite parties sent reply on 15.11.2008 asking the complainant to submit the original record. Accordingly the complainant sent the record to the opposite parties but the opposite parties after taking much time repudiated the claim on the ground that she concealed material facts. As all the efforts of the complainant became futile so, she got issued legal notice to the opposite parties on 02.02.2009 though, received the opposite parties kemp mum hence, the complaint.



2. The opposite parties filed version jointly denying the allegations of the complaint in general but admitted the issuance of policies and contended that as per the discharge summaries of Latha Super Specialty Hospital and Manipal Hospital the complainant was suffering from chronic ailment and thereby she concealed the facts and so, the complainant is not entitled for reimbursement and there by these opposite parties repudiated the claim and that there was no any deficiency in service on the part of the opposite parties and that the repudiation is as per the terms and conditions of policies only and that the complaint is not maintainable and prayed to dismiss the complaint.



3. On behalf of the complainant, the complainant himself filed an affidavit and got marked Exs.A1 to A11. On behalf of the opposite parties Sri G. Vinay Prakash filed an affidavit and got marked Exs.B1 to B9.



4. Heard both the counsel.



5. Apart from oral arguments the learned standing counsel for the opposite parties also filed written arguments.



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



I) Whether repudiation of the claim by the opposite parties amounts to deficiency in service?



II) Whether the complainant concealed the material facts while taking the polices?



III) To what relief the complainant is entitled?



7. Point No.2: It is the submission of the learned standing counsel for the opposite parties that the complainant concealed the material facts and that the experts of the opposite parties concluded the same on considering the discharge summary etc., of the hospital viz., Latha Superspecialty Hospital and Manipal Hospital and also submitted in his written submissions that the chronic ailment means it is a prolonged disease and kidney ailment is an ailment which cannot occur/happen abruptly and it takes much time and further submitted that if two years elapsed after taking of the policy then the complainant is entitled for the medical reimbursement but herein this case the policies were taken in the year 2007 and that the complainant under went treatment in the year 2008 i.e., one year from the date of taking of policies and to substantiate his contentions the learned counsel also relied upon some decisions viz.,



Tarun Bansal & Anr. Vs Reliance General Insurance Company Ltd., & Ors., in II (2007) CPJ 295 wherein it was held “Consumer Protection Act, 1986 – Section 2 (1) (g) – Insurance – Mediclaim policy – Applicability of Exclusion Clause – Complainant underwent hysterectomy with subsistence of policy – As per policy, if for certain ailments including hysterectomy medical treatment/operation undertaken within first year of operation of policy then no claim would be entertainable – Hence, reimbursement for treatment of said disease, would not be admissible – Insurer not liable.



National Insurance Co. Ltd. & Anr. Vs Harjeet Kaur & Anr. in IV (2005) CPJ 595 wherein it was held “Consumer Protection Act, 1986 – Section 15 – Insurance – Mediclaim policy – Repudiation of claim – Exclusion clause – Insurer not liable to pay expense of Hysterectomy during first year of insurance cover – Policy issued from 08.09.2002 to 07.09.2003, squarely covered by exclusion clause – Complainant not entitled to mediclaim expenses – Complaint wrongly allowed by Forum – Order set aside in appeal”.



New India Assurance Co., Ltd., Vs K.K. Kohli in I (2006) CPJ 123 wherein it was held “Consumer Protection Act, 1986 – Section 2 (1) (g) – Insurance – “Total Knee Replacement” – Disease of degenerative joint of knees at advanced stage – Immediate replacement of both knees required – Need for replacement of knees does not arise overnight – It is a long drawn process – Complainant must have had knowledge about pre-existing knee disease at time of issuance of policy, proved – Knowledge of disease not necessary under exclusion clauses – Repudiation justified”.

National Insurance Co. Ltd., Vs Laxmi Narain Dhut in III (2007) CPJ 13 (SC) wherein it was held “Motor Vehicles – Insurance Policy – Construction of – Terms of policy to be construed as it is – No scope for adding or subtracting something”.

Vikaram Greentech (I) Ltd. & Anr. Vs New India Assurance Co. Ltd., in II (2009) CPJ 34 (SC) wherein it was held “Endeavour of Court must always be to interpret words of contract – Court not expected to venture into extra liberalism that may result in rewriting the contract/substituting terms not intended by parties – Proposal form, a commercial document, integral part of policy – Reference to proposal from essential – Surveyor’s report cannot be taken aid of nor can furnish basis for construction of policy”.
And contended that the above rulings are applicable to the present case on hand and so the complainant is not entitled for the reimbursement.

8. In contra, the learned counsel for the complainant argued and submitted that the rulings relied upon by the learned standing counsel for the opposite parties are not applicable to present case on facts and circumstances and also contended that there is no need for the complainant to conceal the facts and that she approached Latha Super Specialty Hospital because of some ailment for the first time and her ailment was detected, to substantiate his contentions the learned counsel also relied on the following verdicts viz.,

Life Insurance Corporation of India, Machilipatnam Vs Venkadaru Koteswaramma decided on 03.16.2002.

Life Insurance Corporation of India Vs Smt G.M. Channabasemma in AIR (SC) (1991) 392.

Life Insurance Corporation of India, Vs Mohinder Kaur in CPJ (NC) 2 (2003) 30.

Life Insurance Corporation of India Vs Smt Chandra Baghrecha in CPJ (NC) 4 (2003) 16.

Life Insurance Corporation of India Vs Kulwant Kumari in 2009 (2) CPR 385 (NC).

Smt Shanta Trivdei Vs Life Insurance Corporation of India in AIR 1988 DELHI 39.

Life Insurance Corporation of India Vs Narmada Agarwalla and others in AIR 1993 ORISSA 103.

The Life Insurance Corporation of India South Zone, Madras and another Vs Bhogadi Chandravathamma in AIR 1971 ANDHRA PRADESH 41.

And also relied on M/s S. Abitha Vs Life Insurance Corporation of India in 2002 (3) CPR 27 NC wherein it was held “Consumer Protection Act, 1986 – Sections 12 and 17 – Claim under the policy – Insured died following the open heart surgery – Claim repudiated on basis of suppression of material facts by insured – Policy had run for three years – Insured had lead an active life involving intense physical activity all along and never suffered any heart attack except the last occasion before his death – No basis on which medical attendant had recorded that when symptoms of witness first observed and he recorded “4 years ago” – It could not be inferred that there was intentional and fraudulent suppression of facts which would attract proviso to Section 45 of Insurance Act – Impugned order of Station Commission setting aside the order of District Forum whereby complaint was allowed was liable to be set aside.”


Smt Santosh Kanwar Vs LIC of India in 2009 (3) CPR (NC) wherein it was held “Consumer Protection Act, 1986 – Section 21 (b) – Complainant’s husband working as a teacher took Insurance Policy under salary saving scheme for a sum of Rs.50,000/- - Death of deceased during currency of policy due liver tumor – Repudiation of claim by Insurance Company on ground of suppression of material fact – No dispute that insured deceased was not suffering from any serious disease at the time of filling up proposal form for obtaining insurance policy – Hence there was no material suppression on his part – No dispute that insured deceased died due to left lobe of liver tumor but it was not noticed even by doctor at Jhalawar when deceased took first treatment – Nothing on record to show that insured was required to take treatment for more than a week – Hence repudiation of claim by insurance company was held unjustified – Complaint allowed – Revision petition disposed of”.

The New India Assurance Co. Ltd., Vs C.J. Jimmy in 2009 (3) CPR 10 wherein it was held: “Consumer Protection Act, 1986 – Section 2 (1) (g) – Deficiency in service – Janatha Personal Accident Policies – Cancellation of policies by Insurance Company by invoking condition No.5 of said policies – Complaint alleging deficiency in service – Insurance company could cancel policy only by giving notice writing and also by returning last paid premium for period which had expired – Evidence on record that Insurance Company issued separate notice to complainants/policy holders intimating cancellation of respective policies – However, since Insurance Company totally failed or ignored to return last paid premium less pro rata premium for expired period of policy – Hence it could not be treated as full compliance of condition 5 of policy – Forum below fully justified in holding that there was no cancellation of policy – No ground to interfere with impugned order of Forum below – Appeals dismissed.

United India Insurance Co. Ltd., Vs Raj Nath Mantoo and Anr in 2009 (3) CPR 102 wherein it was held: “(i) J&K Consumer Protection Act, 1986 – Section 18 – Limitation – Insurance claim – Complaint was to be filed within two years from date on which cause of action arose – Cause of action would arise only when claim has repudiated and not earlier thereto.

ii) J&K Consumer Protection Act, 1986 – Sections 12 and 17 – Insurance claim – Complainants got their portion of house building insured RS.2,00,000 – Building was destroyed in an incident of fire – District Forum allowed complaint directing appellant insurer to pay Rs.1,76,591 with interest at 6% p.a. - Appeal – Plea that insured were entitled to only 1/4th share of value assessed whereas District Forum calculated their shares as half of assessed value – Once complainant got insurance cover for Rs.2,00,000 and appellants accepted premium, it has to look only to insurable interest – No illegality in impugned order to interfere”.

M/s New India Assurance Co. Ltd., Vs Mr. Lalit M. Bhambani & Anr. in 2001 (3) CPR 121 (NC) wherein it was held: “Consumer Protection Act, 1986 – Sections 12 and17 – Medi-claim policy – Complainant was admitted in Hospital with heart problem and angioplasty – Claim repudiated on ground that complainant insured suppressed material information that he was suffering from diabities and hypertension prior to obtaining policy – Appellant company produced certain unauthenticated record of hospital which was rightly not relied upon – No material evidence or proof on record rebutting answers given by complainant in proposal – State Commission had directed appellant to settle claim for Rs.59,588/- with 18% interest – However appellant company to settle claim at Just amount of claim as per terms of policy.” And contended that in view of the above rulings it is clear, that the complainant has no any previous knowledge about her ailment. The learned counsel further submitted that the facts and circumstances of this case in very clear and the specialist doctor of Latha Super Specialty clearly stated that her ailment was discovered for the first time so no need to attribute any malafidies to the complainant and also submitted that the opposite parties failed to show any piece of paper or adduced substantial cogent evidence showing that the complainant suffered from any ailment prior to taking of policies, so the defense taken by the opposite parties is not tenable and prayed to discard the same.

9. In view of the rival contentions this Forum is not inclined to go in deep to the written and oral arguments of the learned standing counsel for the opposite parties. Further, there is no dispute about the decisions relied upon by the learned counsels on either side and each decision is basing on its facts and circumstances and the facts and circumstances of this case are such but herein this case the main thing which is to be seen is whether the complainant knowingly, willingly and intentionally concealed the material facts i.e., to say whether she knows her ailment prior to taking the policies? The answer is negative, why because, no individual knows about her health that to about chronic diseases in general, unless undergoes treatment for a long period. Apart from all the crux of this case is very clear, why because, the medical officer who treated the complainant categorically gave certificate (Ex.A6) wherein it was clearly recited “This is to certify that Mrs. Kanaka Durga, aged 56 years/F, W/o K.S.R. Krishna Murthy was admitted in our hospital on 21.09.2008 she is suffering from “chronic kidney disease Tubercular and Axillary Lymphedenitis, seizures disorder”, which was detected for the first time 10 days prior to the admission. “The probable duration of the renal disease could be 6 months to one year”. Was noted for the first time during hospital stay” that means the ailment was detected after admission in the hospital at Latha Superspecialty Hospital as such there is no need to attribute anything to the complainant or to say that she has concealed the material facts. That apart from the above there is no any contra evidence that she under went treatment prior to taking of the policies or immediately after taking the policies etc., and the opinion given by the panel doctors of the opposite parties as contended by the opposite parties counsel has no legs to stand, why because, they have not examined the complainant prior to her ailment or there after so Ex.A6 prevails and thereby there is no scope to come to a conclusion that the complainant concealed the material facts and further there is no need to consider about the citations relied upon by either side. In the circumstances of the case it is clear that the policies were taken in the year 2007 i.e., 1st policy was taken in the month April 2007 and the 2nd policy was taken in the month of September 2007 and the 3rd policy was taken in the month of October 2007 and that she went to the hospital for the first time in the month of September 2008 i.e., 1 ½ year after first policy and one year after second policy and below one year after third policy. The first policy is only health shield and second policy is only for hospital charges so, the defense taken by the opposite parties is not tenable and not acceptable and no need of discussing at length. In view of Ex.A6 so, there is no scope to bank upon the submission of the learned standing counsel for the opposite parties and the material on hand go to show that the complainant has not concealed the material facts knowingly, willingly and intentionally and accordingly this point is answered.

10. Point No.1: In view of our findings in point No.2 the repudiation of the claim by the opposite parties that to after long lapse of time amounts to deficiency in service and accordingly this point is answered.

11. Point No.3: In the result, the complaint is allowed and the opposite parties 1 and 2 (Jointly and severally) are directed to pay an amount of RS.1,02,050/- (Rupees one lakh two thousand and fifty) only towards medical bills and do pay Rs.1,45,000/- (Rupees one lakh forty five thousand) only towards hospital charges and do pay Rs.2,000/- (Rupees two thousand) only towards costs to the complainant. Rest of the claims if any claimed by the complainant are rejected. Time for compliance one month. If the opposite parties fails to comply the order of this Forum within the stipulated time the awarded amount carries interest at 9% p.a., till the date of payment.