Chandigarh

DF-I

CC/12/2019

Behgal Institute of IT and Radiation Technology and Behgal Hospital - Complainant(s)

Versus

The Oriental Insurance Co. Ltd. - Opp.Party(s)

Rajeev Anand

26 Feb 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/12/2019
Date of Institution	:	04/01/2019
Date of Decision	:	26/02/2020

 

Behgal Institute of IT and Radiation Technology and Behgal Hospital, F-431, Industrial Area, Phase VIII-B, SAS Nagar, Mohali (Punjab) through its Proprietor Dr. Kuljinder Singh Behgal.

… Complainant

V E R S U S

1. The Oriental Insurance Company Limited, Oriental House, A 25/27, Asif Ali Road, New Delhi 110002 through its Managing Director.
2. Regional Manager, Regional Office, The Oriental Insurance Company Limited, SCO 109-111, Surendra Building, Sector 17-D, Chandigarh 160017.

… Opposite Parties

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                               

ARGUED BY	:	Ms. Daisy Sharma, Vice Counsel for Sh. Rajeev Anand, Counsel for complainant
	:	Sh. Varun Sharma, Vice Counsel for Sh. B.R. Madan, Counsel for OPs

 

Per Rattan Singh Thakur, President

1.      The long and short of the allegations are, complainant is a doctor Radiotherapist in the field of cancer treatment and, in order to earn his livelihood, is running the Linear Accelerator Machine for cancer treatment since 2013. The said machine was purchased in the year 2013 and lastly on payment of premium insurance policy was renewed from the OPs w.e.f. 21.6.2018 to 20.6.2019. His case is, during the insurance cover, machine developed some problem showed as gun error and on diagnosis was found to be due to Magnetron and Gun PSU. The said machine was got repaired, new parts were replaced and the complainant paid Rs.18,58,500/- and Rs.2,16,165.38 totaling Rs.20,74,665/- for the same. Insurance claim was preferred and surveyor was appointed by OPs who had recommended payment of Rs.6,41,368/- and finally meager amount of Rs.5,81,077/- was paid on 17.10.2018. Depreciation of the new parts replaced was made whereas it was not permissive under the terms and conditions. Hence, the complainant alleged deficiency in service on the part of the OPs and prayed for difference amount of Rs.14,33,297/- alongwith interest, compensation and litigation expenses.
2.     OPs filed their joint written reply and, inter alia, raised preliminary objections of consumer complaint being frivolous one and the claim has been processed as per terms and conditions contained in Annexure OP-1. Per OPs, Annexure OP-2 i.e. pre insurance risk inspection report dated 14.6.2017 is a part of the survey report which permits depreciation as the machine was of the year 2013 and the claim was preferred in the year 2018. Hence, the total loss assessed by the surveyor comes out to Rs.6,41,368/- as per terms and conditions of the insurance policy and after receipt of the discharge voucher, duly signed by the complainant, matter stood settled.  It was further detailed in the reply, amount of Rs.5,81,077/- was paid after receipt of discharge voucher duly signed by the complainant and the matter stood settled. The said deduction was permissive as per inspection report dated 14.6.2017 which was part of the survey report.  On these lines, the cause is sought to be defended.
3.     Rejoinder was filed and averments made in the consumer complaint were reiterated.
4.     Parties led evidence by way of affidavits and documents.
5.     We have heard the learned counsel for the parties and gone through the record of the case. After perusal of record, our findings are as under:-
6.     Per pleadings of the parties, bone of contention is total loss suffered to the machine which was paid by the complainant to the repairer is Rs.20,74,655/- while the insurance company i.e. OPs had disbursed him a meager amount of Rs.5,81,077/-.  According to the complainant, the said deduction was not permissive per terms and conditions of insurance policy. On other facts, there is no dispute inter se parties. 
7.     OPs have placed on record pre insurance risk inspection report dated 14.6.2017 which is at page 54. Perusal of contents of the report shows, instructions were received from the agent of the OPs and they visited the institute of the complainant at Mohali on 14.6.2017 and carried out inspection of the machine and detailed discussions were held. Per conditions of this inspection report at page 56 it was proposed as under :-

          “Proposed that Depreciation shall be applicable as under.

          Electronic PCBs 5% per year subject to maximum of 50%

          Magnetron, Laser Heads, Detectors, Collimators, Tubes, Monitors, and valves 10% per year subject to maximum of 75%.

          Batteries 25% per year subject to maximum of 100%.

          Mechanical parts and assemblies 10% per year subject to maximum of 50%.

          The insured shall be required to bear an excess @5% of the claim amount subject to a minimum of Rs.2,500.00.

          We propose that a special warranty may be applied to restrict the liability to either the last quoted value of the damaged part or 20% of the sum insured whichever is less, where the equipment is declared beyond repairable due to non availability of spare parts.”

 

This shows, depreciation was applicable in respect of electronic PCBs 5% per year subject to maximum of 50%; magnetron, laser heads, detectors, collimators, tubes, monitors and valves 10% per year subject to maximum of 75%; batteries 25% per year subject to maximum of 100%; mechanical parts and assemblies 10% per year subject to maximum of 50% besides other depreciations as reproduced hereinbefore. This inspection note was of the institute of the complainant and with regard to the insurance policy of course of 14.6.2017. It is not the case of the complainant last renewal of the insurance policy was on different terms and conditions, but, the terms and conditions remained the same on which inspection report dated 14.6.2017 was submitted which was acceptable to the complainant and had permitted the depreciation cost of the parts and this document is part of the terms entered into inter se parties.  The original policy was renewed on the same terms and conditions and if these were not acceptable to the complainant, he could not have bought the policy in question and as per these terms and conditions the amount was reduced i.e. depreciation price of parts replaced.

8.     Admittedly, the year of manufacture and installation of the machine in question is 2013 and the problem and claim was raised in the year 2018 i.e. to say after a span of five years and the machinery was regularly in use and the parts had outlived their life to the extent of five years and, therefore, said depreciation of parts replaced was permissive under the report which was part and parcel of the terms and conditions of the insurance policy as this was done on physical inspection of the premises as well as the machine and the said proposals were acceptable to the complainant. We cannot introduce our own new terms and conditions to which the complainant was a party. He has also claimed the amount was accepted by him, but, it was under protest. We could not lay our hands on his discharge voucher vide which payment was accepted subject to protest having been lodged. Therefore, we do not find any substance in the grouse of the complainant.
9.     Report of the surveyor (Annexure OP-2) shows he had recommended net liability of the insurer at Rs.6,41,368/- and the surveyor Sh. Sanjay Gupta had recommended insurer may settle the claim of the insured for this amount while OPs had disbursed only a sum of Rs.5,81,077/- and have deducted Rs.60,291/-. It is in deviation to the surveyors report.  In the written reply furnished, reason assigned for this deviation is they scrutinized the documents and disbursed the amount of Rs.5,81,077/- per terms and conditions of the insurance policy.  What documents were scrutinized on the basis of which Rs.6,41,368/- was reduced has not been disclosed.  Under which terms and conditions it was permissive has also not been detailed in the written reply furnished by the OPs. 
10.     May be sweeping reference in other documents, on the basis of premium paid this amount was reduced, but, these facts were not pleaded in the written reply and the evidence led beyond the pleadings cannot be taken into account by this Forum. The pleading to this effect is vague one.
11.     In view of the above discussion, the present consumer complaint is partly allowed and partly dismissed. OPs are directed as under :-

1. to pay the amount of Rs.60,291/-to the complainant alongwith interest @ 9% per annum from the date of part payment made i.e. 17.10.2018 till realization. (Remaining claim is dismissed)
2. to pay an amount of Rs.20,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay Rs.10,000/- to the complainant as costs of litigation.

12.     This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
13.     Certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
26/02/2020	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
hg	Member	Member	President