NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI CONSUMER COMPLAINT NO. 155 OF 2013  M/s.   Shital Fibres Ltd. A-17, Focal Point Extension, Jalandhar, Punjab

… Complainant  Versus  M/s Bharti Axa General Insurance Co. Ltd. Unit # SFS, 2nd floor, Eminent Mall 261, Lajpant Kunj, Guru Nanak Mission Chowk Jalandhar

… Opposite Party     BEFORE:

HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER          HON’BLE DR. S. M. KANTIKAR, MEMBER   For the Complainant  :  Mr. K.L. Nandwani, Advocate    PRONOUNCED ON       4 TH   July, 2013                                                   O R D E R

JUSTICE J.M. MALIK

 

1.      The key question involved in this case is “Whether this

Commission  can  travel  outside  the Insurance Policy and grant  relief to the

complainant,  without adhering to the parameters  laid down in the policy itself?”. 

 2.      The present complaint has been filed by M/s. Shital Fibres Ltd against M/s. Bharti Axa

General Insurance Co.Ltd., wherein a sum of Rs.4,19,04,368/- towarcds loss & damage,

Rs.25,00,000/- towards punitive losses, Rs.20,00,000/- towards compensation for loss of

business and delay in settling the claim, interest @ 2% or  at the bank rate  prevalent as on

15.04.2012 as per Regulation No.9 of the Insurance Regulatory and Development Authority

(Protection of Policyholders’ Interest)  Regulations, 2002,  because  the amount was not paid

within 30 days  from  the  appointment  of  Surveyors  and costs of the complaint,  were claimed.

 

3.      The facts germane to the present case are these.  The complainant got constructed a

building at Plot No.C-81, Focal Point, Jalandhar, Punjab,   in December, 2007.  The  building

was insured with  different  insurance  companies,  from  time to  time, but in the year 2011, the

building was got insured from M/s. Bharati Axa General Insurance Co. Ltd, opposite party,

which was issued  seven policy schedules  but  did  not  issue the complete policies till date.  The

policies  issued  were  Special  Peril policies which also included  the loss of the building  due  to

subsidence and landslides.  Unfortunately, on 15.04.2012, the building collapsed like a pack of

cards when machines were running and work  was  going  on  as  the  factory used to run for 24

hours.

 

4.      The loss was  intimated to the opposite  party, which  appointed  M/s.Puri

Crawford  Insurance  Surveyors and Loss Assessors, which visited  the  site  for the first time, on

17/18/12/2012.  The surveyors called for documents in piece-meal, from time to time, w.e.f.

25.06.2012.  All the documents and drawings were immediately furnished  whenever the same

were required.  A Structural Engineer, was  appointed  by  the  Surveyor   but  he  did  not  have

any interaction with the complainant.  No joint  meeting  was  held  with  the

surveyor.   On  receipt of  the  survey  report,  the  complainant again contacted M/s.Gossian &

Associates.  They  supervised  the construction of  the  building  and  had issued completion

certificate.  The Structural Engineers vide their  report  reiterated that  the sudden  collapse of the

entire structure  suggested that  it  could  not  be  a design/material defect  and  had to do more

with the movement of soil.  The opposite  party  did  not  pay heed and  a  legal notice was

served on it to make the payment.  The  complainant  approached  Guru  Nanak Dev Engineering

College Testing and Consulting  Cell, Ludhiana, which vide their report, dated

15.03.2013,  gave  the  opinion   that  structural  design  was ‘OK’   and  there was no  defect in

it.  Another  opinion  from  an Expert, namely M/s.ARO Tech Structural Consultants, Jalandhar

City, Punjab,  was  obtained,  which was also of the

opinion  that  the  collapse  was  due  to  faulty  construction of sewer line by

Punjab  Sewerage  Board,  due to which soil underneath had become bad.  The complainant also

met Shri Kunwar Sunil Kumar, Chartered Engineer for

his  expert  report  and  he  opined  that  if the total  vibration of  the machine  is taken together, it

cannot cause the  collapse of  the building.     

 

5.      The Opposite  party  repudiated the claim made by the complainant  vide  its  letter

dated  04.02.2013,  wherein it was mentioned :

          “…….We reiterate that the claim lodged is not admissible

under the captioned policy due to non-operation of any insured peril

as observed and recommended by surveyors.  We thus repudiate our

liability  under the claim & close the claim file as “No Claim”.

 

This report is accompanied by the report given by Er. Surjan Sindh Sidhu, BE (Civil) MIE India,

FIV, Structural Engineer, Formerly Executive Engineer, PB.PWD (B & R), Associate Professor

(Civil) RIET, Abohar.  This is a detailed report which runs into five pages.  The conclusion

drawn by  the  Expert  is reproduced, as follows:-

 

                    “4.     CONCLUSION

Keeping in view the above facts and figures, it is reported that the

main cause seems to be the failure at and near joints of R.C.C.

Columns and R.C.C. beams  due  to shear stresses, as the work was

done without   following structural design and may have led to the

collapse.  Therefore,  structural design defect is the main cause of

collapse  of  building.  Addition to it, there is no reliable

information  regarding construction procedure  adopted, required

quality control system applied, and qualified Civil Engineers

deputed for construction and supervision,

etc.                                                So, non-compliance of  building

construction Codal Rules and

Regulations,  Byelaws,  Technical  Specifications,  may  have  contri

buted to produce a weak structure, which could not resist the

applied loads,  continuous vibrations due to operating machinery

and other forces  causing ultimate  failure  of  the building”.

 

6.      We have heard the counsel for the complainant at the time of admission hearing of

this  case.  The policy in question  was produced before us  which

mentions  about  the  Standard  Fire  and  Special  Perils  and  material damage.   According to

counsel for the complainant, this case falls within the ambit of Clause VIII of the policy  in

question, which reads, as under:-

“VIII.     Subsidence     and Landslide,     including Rock slide :

Loss, destruction or damage, directly caused by subsidence of part of

the site on which the property stands or Landslide/Rock

slideEXCLUDING :

a) the normal cracking, settlement or bedding down of new structures

b) the settlement or movement of made up ground

c)  coastal or river erosion

d) defective design or workmanship or use of defective materials

e) demolition, construction, structural alterations or repair of any

property or ground works or excavations”.

[ EMPHASIS SUPPLIED ]

 

7.      He further submits that as his case falls within this

clause,  the  case  should  not  be  dismissed  in limine.  He further  contended  that an enquiry

should be made in the questions raised by him.  In  support  of  his case,  he  has cited the

following authorities :

(1) Consumer Education & Research Society  & Ors., Vs. Ahmedabad

Municipal Corporation & Ors., 2002 (10) SCC 542;

(2)  United India Insurance Co.Ltd. Vs. Kiran Combers & Spinners, (2007) 1

SCC 368;

(3)  New India Assurance Co. Ltd. Vs. Pradeep Kumar, (2009) 7 SCC 787;

(4)  Punj Lloyd Limited Vs. Corporate Risks India Private Ltd., (2009) 2 SCC

301;

(5) V.N.Shrikhande (Dr.) Vs. Anita Sena Fernandes, (2011) 1 SCC 53; and

(6) New India Assurance Co.Ltd., Vs. Avadh Wood Products (Cold Storage),

II (2013) CPJ 10 (NC).

 

8.      We are of the considered view that the case in hand does not fall

within  the  above  said  clause.   This is not a case of landslide/rock slide.  It must be borne in

mind that the policy does not include the normal cracking, settlement or bedding down of new

structures or the settlement or movement of made-up ground.   This case clearly falls within the

exceptions (a), (b), (d) and (e),  appended with Clause 8, already cited above.   There is

hardly  any  need to make an enquiry.  The facts are crystal clear.  The report given by  the

Expert  carries  enough value.  It is well settled  that  it  will  get  preponderance  over  the  report

made  by  the Experts  appointed  by  the  private  party.   There is no allegation

against  the  Surveyor.   He  appears to  be   guileless and there is no reason to discard his

statement/report.  The Hon’ble  Supreme Court of India  has already  held that a Surveyor’s

report has significant evidentiary value unless it is proved otherwise, which the complainant   has

failed to do so in the instant case.  This view was taken in  United   India Insurance Co. Ltd. Vs.

Roshanlal Oil Mills & Ors., (2000) 10  SCC 19  and  also by  this Commission  in  D.N.Badoni

Vs. Oriental Insurance Co.Ltd, 1 (2012) CPJ 272 (NC).

 

9.      Otherwise,  too,  the  reports  submitted  by  the Experts,  engaged

by  the  Complainant  have   exiguous  value.  Their reports are vague, evasive and lead us

nowhere.  They harp on the same point that structure was quite alright.  They have given different

reasons.  It is apparent  that  the  complainant is trying to make bricks without straw.  

 

10.    The complainant has no bone to pluck with the opposite party.  The case is meritless

and,  therefore,  the  same  is dismissed at the admission stage.            .…..…………………………(J. M. MALIK, J)

                       PRESIDING MEMBER                 

.…..…………………………(S. M. KANTIKAR)

                MEMBER   dd/16

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI

CONSUMER COMPLAINT  NO. 166  OF  2010

M/s K.K.Jewels Impex Z-25, Hauz Khas New Delhi Through its Partner Kailash Chand Jain........ Complainant 

Vs.

The Oriental Insurance Company Ltd. Through the Senior Divisional ManagerDivisional Office No.9 1/28, 4th Floor, Asaf Ali Road Near Hamdard Circle, New Delhi-110002

......... Opposite Party 

BEFORE:

 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER      

For the Complainant         :    Mr.S.C.Dhanda and Ms.Sagari Dhanda,                                            Advocates For the Opposite Party     :    Mr.Kishore Rawat, Advocate

PRONOUNCED   ON :     05 th     JULY, 2013

ORDER

PER HON’BLE JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

         

The complainant – firm is engaged in the business of import and export of jewellery. The

complainant carried jewellery worth US $ 632691.08 to USA for participating in exhibition and

sale of jewellery organized at New York.  Before leaving India with the jewellery, the

complainant got the jewellery insured with the OP for Rs.2,96,09,942.67/- vide cover note

number 945271.  The insurance cover was for ‘all risks’.  The complainant had carried said

jewellery in packed steel containers to USA and the jewellery was declared to the custom

authorities at New Delhi.  The complainant participated in the exhibition at New York on 16 th &

17th June 2001.  He sold some items of jewellery on both days.  On the conclusion of exhibition,

the jewellery was packed in suitcases and put in two cars.  While on the way, the complainant

decided to pick up some food at Taco Bell Restaurant. The car was stopped and Mr. Komal Jain

who was driving one of the car came out of the car.  In the meanwhile one person aged 25/30

year opened the driver side of the car which was driven by Mr.Komal.  Mr.Komal yelled at

him.  However, said man managed to pull the internal liver to unlock the boot of the car and

escaped with two suitcases containing jewellery in another car waiting for him.  The matter was

immediately reported to the police.  It was even witnessed by a woman Ms. Keecha Patrick who

had informed the police on phone no.911. The Nassau Country Police department registered a

robbery case.  The theft was also brought to the notice of Indian Consulate in USA. The

jewellery could not be recovered. The complainant lodged a claim of US $ 315,445/- with the OP

for the loss of jewellery. The opposite party was supplied with all the information. It made

inquiries directly from the police and Indian Consulate and even engaged M/s Webster & Co.

USA who appointed M/s MRC Investigators.  The investigator after making inquiry reported that

incident of robbery was genuine.  The OP not being satisfied engaged another surveyor

M/s Omniscent Detectives (P) Ltd, who also opined that robbery could not be

disputed.  Thereafter M/s Alka Gupta & Associates were appointed to assess the loss who

assessed the loss at Rs.1,47,62,838/-.

2.       The OP failed to settle the claim.  This prompted the complainant to serve the OP with a

legal notice dated 16.03.2008.  The OP vide letter dated 14.08.2009 offered to settle the claim at

50% of the claim amount i.e. Rs.73,81,419/- provided the discharge voucher was signed by the

complainant.  The complainant accepted the aforesaid amount and signed the discharge

voucher.  According to the complainant, the aforesaid discharge voucher has been signed by him

under duress and because of the circumstances created by the OP in not settling the claim.  It is

alleged that the complainant is not a big jeweller and loss of capital of Rs.1,47,62,838/- has

adversely affected the  business of the complainant and as a result because of pressure of non

settlement of the claim by the OP, he was compelled to accept the offer and signed the settlement

voucher. Claim for the aforesaid settlement is not binding. The complainant has filed this

complaint claiming Rs.2,83,79,458/- including the balance due from the surveryor assessment

report plus interest.

3.       The OP has contested the claim by filing the reply. The complaint is also resisted on the

ground that after having settled the matter by receiving a sum of Rs.73,81,419/-, the complainant

is estopped from reagitating the matter by filing a fresh complaint.

4.       Undisputedly, the complainant has received a sum of Rs.73,81,419/- in full and final

settlement of the claim by executing a discharge voucher which clearly records that the aforesaid

amount has been received by the complainant in full and final settlement of all his claim.  Now

the question is after executing such a discharge voucher, whether the insured complainant could

still pursue the claim for any further amount?

5.       This question came up for the consideration of the Supreme Court in the case of United

India   InsuranceAjmer   Singh Cotton & General Mills and   Ors. II (1999) CPJ 10 (SC) =

(1996)   6     SCC   400 , wherein the Supreme Court observed as under:

“The mere execution of discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered.  Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like.  If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, undue influence or the like, coercive bargaining

compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief”.     

 

6.       The above position was reiterated by the Supreme Court in the later decisions in National

Insurance Company Limited   Vs.   Sehtia   Shoes (2008) 5 SCC 400

7.       On reading of the above judgments, the legal position which emerges is that the mere

execution of the discharge voucher would  not always deprive the consumer for preferring the

claim with respect to deficiency in service despite of execution of discharge voucher. The

consumer can successfully press his claim provided the consumer is able to establish that the

discharge voucher or receipt was obtained from him by fraud, misrepresentation, undue influence

or coercive bargaining. 

8.       Shri S.C.Dhanda, Advocate, learned counsel for the complainant has submitted that ratio

of the above noted judgments of the Supreme Court are squarely applicable to the facts of the

case.  He has contended that admittedly the claim for loss of jewellery due to robbery was

submitted in June 2001.  The matter was inquired into by the OP through M/s MRC Investigators

as also M/s Omniscent Detectives (P) Ltd who confirmed the robbery incident.  Even the

surveyor assessed the loss suffered due to robbery at Rs.1,47,62,838/- and despite that OP

delayed the settlement of claim which resulted in severe financial constraint on the complainant

and because of this coercive approach of the OP, the complainant was compelled to accept the

offer of 50% of the loss assessed by the surveyor.  It is thus contended that complainant was

coerced to sign discharge voucher and as such aforesaid discharge voucher cannot be taken as a

circumstance to deprive the complainant from preferring the claim. Learned counsel further

contended that the intention of the opposite party to pressurise and coerce the complainant to

accept the offer is evident from the office noting dated 21.07.2009 wherein the Chief Manager of

the Opposite Party while recommending settlement of the claim on compromise basis at 50% has

noted that before releasing the payment a letter of compromise towards full and final payment be

obtained by the Regional Office and placed on the file.

9.       Learned counsel for the opposite party on the contrary has contended that this is a case of

voluntarily full and final settlement of the claim.  In support of this contention, learned counsel

has drawn our attention to copy of letter dated 14.08.2009 addressed by the OP to the

complainant wherein it is clearly mentioned that the cheque of Rs.73,81,419/- is being tendered

in full and final settlement of the claim with a clear warning that if the offer is not acceptable, the

complainant should return the cheque forthwith.  Learned counsel contended that the

complainant after having knowledge of the offer given in the letter has accepted the cheque

which clearly indicate that the cheque has been accepted voluntarily without any demur or

protest. Therefore, the complainant is estopped from filing the complaint.

10.     We have considered the rival submissions and perused the material on record. The

question for determination is whether or not the complainant has received the offered amount of

Rs.73,81, 419/- and signed the full and final discharge voucher voluntarily under coercion,

misrepresentation or fraud.   To find answer to the question it would  be useful to have a look on

the content of the letter dated 14.08.2009 vide which the cheque for settlement was sent to the

complainant:

“Sir / Madam,

        We are enclosing herewith our cheque no.465772 dated 14.08.2009 for Rs.73,81,419/- (Rupees Seventy Three Lakh Eighty One Thousand Four Hundred Nineteen Only) in full and final settlement of your above claim.

        Please note in case the above offer is not acceptable to you, the cheque should be returned forthwith to this office, failing which it will be deemed that you have accepted the offer in full and final satisfaction of your claim.  The retention of this cheque and / or encashment thereof will automatically amount to acceptance in full and final satisfaction of your above claim without reason and you will be estopped from claiming any further relief on the subject”.

         

11.     On reading of this letter, it is clear that cheque was offered to the complainant in full and

final settlement of his insurance claim with clear instructions that if the offer was not acceptable,

the cheque should be returned failing which it shall be deemed that the cheque has been accepted

in full and final settlement of claim.  Despite that the complainant hasencashed the cheque

without any demur or protest.  If the complainant was coerced to sign the discharge voucher

nothing prevented him to record his protest on the discharge voucher, which is not the

case.  Therefore, we are unable to accept the contention that discharge voucher has been obtained

by adopting coercive means.

12.     Undisputedly the cheque for full and final settlement was received by the complainant on

14.08.2009.  The protest notice, however, was signed after six months on 30.03.2010. From this

it can be safely inferred that the complainant accepted the cheque amount in full and final

settlement of his claim voluntarily and signed the discharge voucher.  If at all there was a

pressure on the complainant to sign the discharge voucher, the complainant under ordinary

course of circumstances instead of waiting for six months would have protested against the so

called coercive measures adopted by the opposite party.  From the conduct of the complainant

also, it appears that the complaint after entering into the settlement has been filed on after-

thought with a view to extract more money from the opposite party.  As regards the office noting

dated 21.07.2009, much importance cannot be attached to the same because the noting only

indicate the anxiety of the Chief Manager of the Opposite Party to protect the rights of the

opposite party and this noting by itself cannot be taken as a coercive protest. 

13.     In view of the discussion above, we find that the complainant received a sum of

Rs.73,81,419/- voluntarily in full and final settlement of his claim and also executed a discharge

voucher in this regard.  Thus, the complainant having voluntarily entered into the full and final

settlement is now estopped from re-agitating the claim by filing a complaint.  As such, the

complaint is liable to be dismissed as not maintainable.

14.     The complaint is, hereby, dismissed as not maintainable. 

                                                       …..………………………Sd/-….     (AJIT BHARIHOKE, J)      ( PRESIDING MEMBER)

 

                                                                  …..…………………Sd/-………                                                        (SURESH CHANDRA)                                                                            MEMBER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION  NO. 2945  OF  2012

(Against the order dated 17.05.2012 in First Appeal No. 1518/2009 of the State Commission Haryana, Panchkula)

 

Rahul Electricals, Shop No.1379, Railway Road Rohtak-124001, Haryana Through its Proprietor Sh.Kulbhushan

........ Petitioner  Vs.

1. State Bank of India Hissar Road Branch, Hissar Road, Rohtak Through its Manager 2.  The Oriental Insurance Company Ltd. Through its Divisional Manager, Rohtak-124001, Haryana

......... Respondents  BEFORE:

 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

 HON’BLE MR.SURESH CHANDRA, MEMBER      

For the Petitioner                  :   Mr.Shekhar Raj Sharma, Advocate

For the Respondent No.1 :    Mr.U.C.Mittal, Advocate

For the Respondent No.2 :    Mr.Manish Pratap, Advocate                                                Alongwith Mr.Ajay Singh, Advocate                                           

PRONOUNCED ON :     05 th   JULY, 2013

 

 

ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision is directed against the order dated 17.05.2012 passed by State Consumer

Disputes Redressal Commission Haryana ( in short, ‘the State Commission’) dismissing the

appeal preferred by the petitioner / complainant against the order of the District Consumer

Forum Rohtak dismissing the complaint.

2.       Briefly put relevant facts for the disposal of this revision petition are that M/s Rahul

Electricals filed a complaint under section 12 of the Consumer Protection Act against the

respondents State Bank of India as also the Oriental Insurance Company Limited claiming that

the complainant was engaged in the business of electrical goods.  Complainant had obtained a

cash credit limit of Rs.3 lakhs from the respondent / bank against the hypothecation of the

stock.  It is the case of the complainant that as per the agreement, the stock of the complainant

was required to be insured and the opposite party / bank had agreed to get the stock insured on

behalf of the complainant and debit the insurance premium to the cash credit account of the

complainant.  Pursuant to the agreement, the opposite party / bank had been getting the stock

insured with the insurance company and the last insurance was for the period w.e.f. 25 th May

2006 to 24th May, 2007.  It is alleged in the complaint that after 24th May, 2007, the opposite

party / bank failed to renew the insurance.  Unfortunately on 30.05.2007 the shop of the

complainant caught fire due to electrical spark and the entire stock was destroyed. The complaint

in this regard was lodged at PS Rohtak City vide DD No.46 dated 31.05.2007.  The complainant

approached the opposite party / bank to disclose the name of the insurance company with whom

he had got the stock insured.  The opposite party bank after evading the issue for sometime,

ultimately replied that as per the agreement, the insurance was to be got done by the complainant

himself.  Claimant alleging the failure of the bank to renew the insurance of the stock as

deficiency in service filed complaint before the District Forum claiming compensation of

Rs.6,27, 870/- on account of loss suffered due to fire accident besides Rs.2,00,000/- on account

of mental pain and agony.  The complainant also sought direction to the opposite party bank to

stop charging interest on the over draft w.e.f. 25.05.2007.

3.       The opposite party bank contested the complaint and took the plea that stock hypothecated

with the bank were to be insured comprehensively for the market value by the complainant in

joint names of the bank and the complainant.  It was alleged that the opposite party bank never

got the goods insured and it was for the complainant to get the goods insured at his own

responsibility. The bank also denied that stock worth Rs.6,27,870/- was destroyed.  Thus, it was

pleaded that there was no deficiency on the part of the bank.

4.       OP No.2 took the plea that it was neither necessary nor proper party because on the date of

fire accident, the stock of the complainant was not insured with the insurance company.

5.       Sole controversy which needs determination in this revision petition is whether or not as

per the terms of agreement between the parties, respondent / bank was under obligation to get the

stock available at the shop of the complainant / petitioner insured?.  If answer to this question is

in the affirmative, then of-course, the respondent / bank has been deficient in providing service

to the petitioner / complainant.

6.       Shri Shekhar Raj Sharma, Advocate, learned counsel for the complainant/ petitioner has

contended that impugned orders of the fora below are not sustainable as the orders are based

upon incorrect appreciation of the evidence.  It is argued that both the foras below have failed to

appreciate that as per the agreement between the parties, opposite party no.1 / bank was under

obligation to get the stock lying in the shop of the petitioner insured on behalf of the petitioner /

complainant and debit the insurance premium amount to his cash credit account.  It is contended

that this obligation is admitted by the opposite party / bank in para 2 (c ) and ( e) of their written

statement filed in response to the complaint in the District Forum.  Learned counsel for the

petitioner has also drawn our attention to the copies of the statement of accounts pertaining to

cash credit account of the complainant for the periods 01.04.2006 to 31.12.2006 and 21.07.2006

to 31.05.2007 wherein there are debit entries pertaining to the insurance premium for the

insurance of stock lying in the premises of the petitioner.  It is contended that impugned orders

have been passed ignoring the aforesaid evidence.  Therefore, those are liable to be set aside.

7.       On careful perusal of the record, we find both that both the District Forum as well as State

Commission has based their finding on interpretation of Clause V of the hypothecation

agreement which reads thus:

“That the said goods shall be kept by the Borrower (s) in good condition at his / their risk and expense.  Further, when required by the Bank all goods the subject of this agreement shall be insured against fire by the Borrower(s) at his / their expense in the joint names of the Borrower(s) and the Bank in some Insurance Office approved by the Bank to the extent of atleast 10 percent in excess of the amount advanced by the Bank against them and that the Insurance Policy (ies) shall be delivered to and held by the Bank, if the Borrower(s) fail(s) to effect such Insurance on being asked in writing to do so, the bank may insure the said goods against fire in such joint names and debit the premium and other charges to such account as aforesaid and in the event of the Bank being at any time apprehensive that the safety of the goods is likely to be endangered owing to not or strike, it shall on failure by the Borrower(s) to do so after request by the Bank at its discretion itself insure the same in such joint names against any damage arising therefrom the cost of such extra insurance being payable by the borrower(s) and being debited to such account as aforesaid, the Borrower(s) expressly agree(s) that the Bank shall be entitled to adjust, settle, compromise or refer to arbitration any dispute between the Company and the insured arising under or in connection with such policy or policies and such adjustment, settlement compromise and any award made on such arbitration shall be valid and binding on the Borrower(s) and also to receive all moneys payable under any such policy or under any claim made there under and to give a valid receipt thereof and that the amount so received shall be credited in the account having reference to the goods in respect of which such amount is received and that the Borrower(s) will not raise any question that a large sum might or ought to have been received or be entitled to dispute his / their liability for the balance remaining due on such account after such credit”.

 

8.       On plain reading of the above said clause, it is evident that as per the agreement between

the parties, the complainant borrower when required by the bank was under obligation to get the

stock in his shop insured at his own expense in the joint names of borrower and the bank and if

the complainant failed to get such insurance on being asked to do so in writing, the bank in its

own discretion was entitled to get the goods insured against fire and debit premium and other

charges to the account of the complainant.  There is nothing in this clause which may suggest

that the bank was under any obligation to get the hypothecated goods insured on behalf of the

complainant. Further, the plea of the complainant  that there is an admission of obligations to get

the stock insured  on  the  part  of  the  respondent / bank,  in  para 2 (c) & ( e) of the written

statement is against the record.  On perusal of the copy of the written  statement  of  the  opposite

party / bank,  we   find  that in  para  2 ( c ) & (e ), the bank has categorically denied that it had

any obligation to get hypothecated goods insured on behalf of the complainant.  On the contrary

in the aforesaid paragraph, the bank has categorically stated that stock hypothecated with the

bank as per the agreement was to be insured by the complainant at his own expense in the joint

names of the bank and the borrower.  Thus, we do not find any merit in the plea of the

complainant.

 

9.       In view of the discussion above, we are of the opinion that both the fora below have rightly

dismissed the complaint in view of the written agreement between the parties.  There is no

material irregularity or infirmity in the impugned order which may call for any interference by

this Commission in exercise of its revisional jurisdiction.  Accordingly, the revision petition is

dismissed.

           

                                                       ………………………Sd/-……….     (AJIT BHARIHOKE, J)      ( PRESIDING MEMBER)

 

 

                                                                  ..…………………Sd/-……………                                                        (SURESH CHANDRA)                                                                            MEMBER

Am/

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   4747 OF 2012                 (Against order dated 03.10.2012 in First Appeal No. 827 of 2011 of the

Andhra Pradesh State Consumer Disputes Redressal Commission,Hyderabad) 

1.   The Managing Director Cholamandalam MS. General Insurance Co. Ltd. Venkata Plaza-2, D.No. 6-3-698/3 Ist Floor, Panjagutta Cross Roads, Hyderabad                                                                   

2.   The Managing Director Cholamandalam MS. General Insurance Co. Ltd. Paramount Health Management, Elite House, Ist Floor, 55-A, Vasanji Road, Opp. Andheri Kurla Road Chakala, Andheri, Mumbai- 400 093

…Petitioners 

Versus Ms. Borredy Pragahi W/o T. Bharat Reddy R/o D.No. 1/334-3, Opp. RTC Bus Stand, Maruthi Nagar Presently Resident At  Flat No.-408, Victory Apartments, Yerramukkapalli Kadapa City, YSR District 526001

…Respondents  BEFORE:

 HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBERHON’BLE DR.S.M.KANTIKAR, MEMBER  For the Petitioner(s)              :         Mr.S.M. Tripathi, Advocate For the Respondent(s)                   :         Ms. Radha, Advocate

 

Pronounced on 5th July, 2013

ORDER

PER DR. S.M. KANTIKAR

1.     The Revision Petition is filed against the Impugned Order of Andhra Pradesh State

Commission Disputes Redressal Commission, Hyderabad (in short, State Commission,

AP) in First Appeal Number 827 of 2011 against the Consumer Complaint No. 44/2011

of District Consumer Disputes Redressal Commission, Kadapa (in short District

Consumer Forum).

2.     The Facts In Brief are:

The Complainant/Respondent herein was Ms. Borredy Pragahi a medical student of

Nanjing Medical University,China  took Overseas Student Travel Insurance Policy from

the respondent for a sum of US $.1,00,000/- covering from 25.02.2007 to 24.02.2009.

She got admitted in Jiang Hospital,Nanjing  for treatment of  iliac fossa pain, fever and

nausea where she was diagnosed as Right Oopheritis, Menstrual Syndrome and Acute

Appendicitis and treated accordingly.

3.      She returned back to India on 16.01.2009 to visit her parents. Thereafter, she suffered

similar attacks of pain as suffered in China for which she was operated on emergency

basis at Pragathi Orthopaedic & General Hospital, Karapa on 10.02.2009. The said

treatment incurred Rs.64,282/-  as expenditure. The claim made with the Respondent,

which was repudiated on the ground that said operation was not conducted in China.

Therefore, she was not entitled for the claim amount. Against this repudiation the

Complainant filed a Complaint before District Forum on 25/2/2011 claiming Rs.64,282/-

together with interest 24 per cent per annum, Rs.50,000/- towards mental agony and cost.

4.     The respondent resisted the case. While admitting the issuance of policy, it was alleged

that the Complainant having taken treatment at Kadapa was not entitled to the amount

covered under the policy. In fact, she was paid as amount of Rs.25,805/- towards

treatment she underwent in China, which was paid towards full and final settlement of the

claim. The surgeon, who conducted surgery, is none other than her own father. Therefore,

it prayed for dismissal of the Complaint with costs.

5.     The District Forum dismissed the Complaint. The Complainant preffered the Appeal in

the State Commission. The State Commission set aside the order of District Forum and

allowed the appeal.

6.     Being aggrieved by impugned order of State Commission petitioner herein filed this

revision petition on 14/12/2012.

7.     We have heard the learned counsel for both the sides and perused the evidence on

record before District forum and State Commission.

8.     It is an undisputed fact that the Opposite party – the Insurance Company had issued an

Overseas Student Travel Insurance Policy, Ex.B.1 for a sum of US $ 1,00,000/- covering

the period from 25.02.2007 to 24.02.2009. It is not in dispute that during the above said

period, she had taken treatment at China and the amount which she incurred towards

treatment was paid. Her case was that after she returned to India,

an   emergency  Appendicectomy operation was  conducted on 10.02.2009,. This is

evident on perusal of discharge summary that the diagnosis was “Acute Recurrent

Appendicitis” and she incurred a sum of Rs.64,282/- towards medical expenses. When

she requested for settlement of claim, the Insurance Company repudiated it by issuing

letter, Ex.B.2 alleging that she would not be entitled to the said amount if the operation

was performed in India.

9.     On perusal of the policy condition under section B which is as follows:

          “Section B-Cover 1. Medical expenses-

1)   Under Medical Evaculation/Transportation: 1) the transportation of the insured

from that overseas country to India or the place of residence where necessary

medical attention can be provided; the coverage for medical treatment will be up

to the limit of indemnity for medical expenses for maximum period of 30 days from

the date of return.” (emphasis supplied)

10.                                                                                                                                                

                                                                                                                     The Pragathi H

ospital records like In-Patient Case Sheet, Discharge Summery where the Complainant

underwent emergency operation on 10.02.2009 and it’s evident that operation was

within 30 days of her return from China that is on 16.01.2009. Therefore, the Insurance

Company is bound to reimbursement the amount paid by Complainant towards the

hospitalization expenses. The repudiation was unfair and is unjustifiable. Therefore, we

agree with the findings of State Commission in allowing the appeal filed by the

Complainant. Therefore, we upheld the order of State Commission  and pass the order-

The Revision Petition is dismissed with a punitive cost of Rs.25,000/- which is to be

paid to Complainant within 45 days otherwise it will carry 9% interest per annum, till its

realization.          ..…………………..………

           (J.M. MALIK J.)      PRESIDING MEMBER

                                                                  ……………….……………                                                        (S.M. KANTIKAR)                                                                            MEMBER

     

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

ORIGINAL PETITION NO. 328 OF 2000

 

Indian Sugar Exim Corporation Limited Having its registered office at: Block-C, IInd Floor, Ansal Plaza, August Kranti Marg, New Delhi- 110049 Through Mr. V.K. Jain,its Manager (Commercial)

…….Complainant

                                                          Versus

 1. M/s. United India Insurance Co. Ltd. Having its registered & head office at: 24, Whites Road Chennai- 600014 Through its Divisional Manager Divisional Office No.XXIII 607-608, Devika Tower 6, Nehru Place New Delhi- 110019 

2. M/s. J.B. Boda Surveyors Pvt. Ltd. Having its registered office at: Maker Bhavan No.11, Sir Vithal Das Thackersey Marg Mumbai- 400020 Through its Managing Director

........Opposite parties

  

BEFOREHON’BLE MR. JUSTICE J.M. MALIK,                              PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER   For the Complainant          :   Mr. Buddy Ranganathan, Advocate                                                 Mr. Lokesh Bhola, Advocate,                                                 Ms. Pankhuri Jain, Advocate                                                 Ms. Mansha Anand, Advocate For the Opposite parties     :  Mr. A.K. De, Advocate                                                 Mr. Rajesh Dwivedi, Advocate                                                 Ms. Deepa Agarwal, Advocate               

PRONOUNCED ON: 5/7/13.   ORDER

PER MR.VINAY KUMAR, MEMBER

M/s. Indian Sugar & General Industry Export Import Corporation has filed this complaint

in the year 2000.  In the course of the proceedings MA/1428/2009 was filed informing that the

Complainant had changed its name to M/s Indian Sugar Exim Corporation Ltd.  The application

was allowed on 15.12.2009 and necessary amendment in the memo of parties permitted.  In the

proceeding of 19.11.2012, it was observed that negotiations for compromise between the parties

were in progress.  The matter was therefore adjourned to 2.1.2013 directing that in the event of

no compromise being reached, the parties would file their written arguments. The matter was

finally heard on day to day basis and reserved for order on 16.1.2013. 

 

BACKGROUND

2.      The consumer dispute arises out of import of 13,800 MT of white sugar by the

Complainant from Switzerland in 1994.  The entire consignment was shipped to India and was

received at Mangalore Port. The Complainant had obtained a marine insurance policy to cover

the shipment.  It was effective from 13.4.1994, initially for a period of 60 days.  Subsequently,

the terms of the policy got extended to 1.11.1994, with three extensions in between.     

CASE OF THE COMPLAINANT

3.      The Cargo vessel MV Scotian Express left Eemshaven Port in Netherland on 28.4.1994 and

arrived at Mangalore Port on 26.5.1994.  Discharge of the entire Cargo of 13,785 (mts) of Sugar

was completed by 3.7.1994.  As per para 7 of the complaint petition,  “substantial quantity of

sugar bags were found progressively to be partly wet and stained in all hatches of the vessel

apart from bursting of many bags.  It would be also evident from perusal of date-wise summary

of discharge as recorded in Annexures-A & B of Annexure-8 herein that; heavy rain was

experienced right from first day of discharge upto the date of final discharge, namely, 3rd July

1994.  A copy of Certificate issued by Indian Meteorological Department Station: Panambur

dated 6th December 1994 certifying the recorded rain fall during the months of May, June, July

& August 1994 is annexed herewith and marked as Annexure-9.”

4.      In the above background of damaged conditions of the goods, the Complainant appointed

M/s. Superintendence Company of India Pvt. Ltd. (hereinafter referred to SCPL) to inspect the

condition of the Cargo in the vessel and to supervise its discharge therefrom.  Simultaneously,

OP-1/ insurance company appointed a Surveyor (OP-2) for the same purpose.  The report of OP-

2 (Annexure 12) gives full details of unloading of 13800 (mts) of sugar between 26.5.1994 and

3.7.1994. In this report OP-2 clearly mentions that:-

“During discharging we observed that lots of bags were wet stained/discoloured in-side the holds and the same were discharged alongwith the sound bags since it was difficult to segregate the wet stained/discoloured bags inside the hold.”

 

The report of the Surveyor (OP-2) has also noted the details of the total discharge of 13800 MTs

(Annexure 12)  as follows:-

No. of sound bags                                             271,266

No. of cut/torn bags                                          1109

No of wet stained/ discoloured bags                3625

Total no. bags discharged                               276,000

The complaint petition states that the Complainant is entitled to compensation on the basis of the

facts contained in the above report of the Surveyor/OP-2.

 5.     The goods were stored in hired transit godowns of Mangalore Port Trust.   The process of

unloading and stacking was completed between 26.5.1994 to 3.7.1994.  It is the case of the

complainant that in this period Mangalore received very heavy rain fall.  Despite coverage of the

stocks, top and bottom, with tarpaulins sheets, further damage to the stocks occurred from

leakage of the godown roofs.  Also, excessive rains continued through the months of June and

July.

6.      The Complainant was advised by OP-2 to segregate the damaged cargo, but according to

the Complainant it was not possible as the godowns were packed and there was no space to take

up the segregation exercise of such a huge quantity.  Moreover, with incessant rain any such

exercise, involving movement of stocks from one godown to another would have exposed them

to further damage by rain.    Allegedly the Complainant also informed the OPs that due to heavy

rain it was not possible to move the stocks to other regions in the country.  He was advised to

take action keeping in view Clauses of 16 and 18 of the Policy.  The first dealt with

reimbursement of expenditure incurred for averting or minimising loss and protecting the rights

of the underwriter against third parties.  The second required the Complainant to act with

‘reasonable despatch’ under all circumstances within its control. 

7.      The complaint petition states that by 22.10.1994, in all 77414 bags of sugar were

segregated , with re-bagging to the extent necessary and 3870.70 MTs of sound sugar was

despatched. Details of these deliveries made between 10.8.1994 and 22.10.1994 are shown in

Annexure 42 to the complaint.  Complaint petition also shows that joint survey of the remaining

stocks—198353 bags-- was done and its report of 22.11.1994, signed by the representatives of

both sides showed that it largely comprised either partly wet or fully wet bags.   But, the total

weight of these 198353 is accepted to be 9917.65 MTs in the complaint.  This was based on

analysis of 6000 bags as a joint exercise taken by both.     

 8.     The complaint petition also seeks to make out a case that when sugar is damaged by rain it

is not only moisture but also  factors like loss of lustre and caking etc. that need to be taken into

consideration.  Allegedly, after 198353 bags of sugar were sold @ of Rs.9875 per MT, the

picture of final loss became clear.  Therefore on 16.9.1995 a claim under the policy was made for

Rs.707.83 lakhs.  In response, OP-1/ United India Insurance Company made an offer of

Rs.44,24,963/- only on 8.5.1998, which was declined by the Complainant.  The prayer of the

Complainant is to award an amount of Rs.707.83 lakhs with 24 % interest from the date of the

claim i.e. 16.9.1995.

 RESPONSE OF THE OPPOSITE PARTIES

9.      Per contra, in the Written Statement filed on behalf of OP-1, it is stated that the entire

unloading operation was personally supervised by the Surveyor/ OP-2 between 26.5.1994 to

3.7.1994.  The WS accepts that the cargo has suffered water damage during the voyage and

many bags were found to be wet/stained/discoloured at the time of unloading.  Intermittent rains

had continued during the entire period of unloading and the discharged cargo was stored in

godowns with “roofs full of holes”.  The written response strikes a note similar to that in the

complaint petition when it comes to effect of continued heavy rain fall and repeated damage to

the godown roofing on the sugar stocks stored therein.  Allegedly, the Complainant failed to take

prompt action to save goods from suffering further rain damage in the godowns. 

10.    It is the case of the Insurance company that while the Surveyor had repeatedly demanded

segregation of sound stocks from the damaged ones in the godown, the Complainant was

unwilling to take up the exercise, on the ground of high cost of the operation and offered to do

the same at the time of delivery. However, the delivery operation itself came to a stop after

23.10.1994 with the despatch of 77414 bags of the sugar to various destinations.  

11.    As stated in the WS of the OP/United India Insurance Company Ltd., an attempt was made

to settle the claim on non-standard basis, due to failure of the Complainant to segregate the

damaged stocks from the sound ones and failure to take timely action to minimize the loss.  The

total loss was quantified by OP-2 to be of the order of 288.127 MTs, for which a total

compensation Rs.44,24,963 was offered to the Complainant on 8.5.1998, against the claim of

Rs.707,83,101.96.  Apparently, the offer was declined. According to the OPs, there was no

deficiency of service in rejection of a very large claim of Rs.707,83,101.96.

ARGUMENTS ADVANCED BY THE TWO SIDES

12.    Before the National Commission the case of the complainant has been argued by learned

Advocates, Mr Buddy Ranganathan, Advocate and Mr A K De, Advocate has argued the case of

the United India Insurance Co. They have been heard extensively, over several days, with

reference to documents brought on record. We have also considered the written arguments filed

on behalf of the two sides.

13.    Coming to the core of their arguments, Mr Ranganathan argued that damage to the stocks

and resultant loss suffered by the complainant are not denied by the insurer. But against a loss of

Rs 707.8 lakhs, the insurance has assessed the loss as Rs 58.99 lakhs only. Even here, OP-1 has

deducted 25% in the name of non-standard settlement of the claim. This was not acceptable to

the complainant. Further, he referred to the joint exercise of November 1994 which segregated

6000 bags for analysis. Learned Counsel argued that the report of the Surveyor/OP-2 itself

mentions that out of 6000 bags 5789 were found to be water stained externally, a fact that by

itself would show that damage to the stocks was extensive. He referred to test results of the

stocks (on parameters of polarisation, moisture, colour etc) at the time of loading for India and

compared them to the results of analysis of samples drawn on 2.12.1994 and claimed that water

had affected the quality (sale value) of the stocks.

14.    Reacting sharply to the above, learned counsel for the OP/insurance coy, Mr. A.K.De,

argued that a series of correspondence has taken place between the Surveyor appointed

by  the  insurance  and  the  insured  on  precisely the same concern i.e. need to protect the stored

stocks against further damage from continued rain.  But, the Complainant did not take action for

speedy repair of the leaking godowns or for segregating damaged stocks from good ones.  Nor

was action taken for prompt disposal as a measure against further damaged in continued storage.

The delivery of sugar stocks started only on 10.08.1994 and came to an abrupt stoppage since

23.10.1994. By then only 77414 bags, as against import arrival of 27,0000 bags, had been

delivered to different destinations.  It has been strongly argued on behalf of the

respondent/Insurance Company that lab analyses of samples taken from 6000 bags segregated in

November, 1994, showed that despite external damage to the packaging, moisture and sucrose

content as well as colour of sugar were within the stipulated limits.  The assessment of total loss

being limited to 288.127 MT against the total quantity of 13800 MT was based on the above

mentioned test results. Mr. A.K.De, argued that the complainant base his case only on the extent

of external damage to the bags and not on actual condition of the sugar within. Therefore, the

claim of the Complainant for Rs.707.83 lakhs is exaggerated, misconceived and untenable.  The

insurer cannot be held liable for loss caused by failure of the Complainant to take prompt action

in protection and disposal of the stocks.       

THE EVIDENCE ON RECORD

 15.   Damage during storage at Mangalore Port, caused by continued rains and leaking godown

roofs, is not denied. Para 19 of the affidavit evidence of Mr V K Jain, Manager (Commercial) of

complainant coy accepts it. But it also goes on to add that the godowns were packed and there

was no space to undertake the exercise of stock segregation. But, the claim that OPs had agreed

that it could be done at the time of delivery, is denied by the OPs.                

16.    The two sides eventually undertook an exercise of segregating 6000 bags in November

1994 and analysed the contents with the help of SGS Goa. (Annexures 54 & 55). The content

analysis of water affected bags showed their moisture content as follows—

Partially stained bags                0.16%

Fully stained bags                     0.25%

Further, in December 1994, while the complainant was in the process of moving 1700 MT

(34000 bags) of sugar to Orissa, OP-2 got them analysed. As per his report of 23.5.1995, re-

bagging resulted in 118 bags of water damaged sugar and 33,882  bags of sound quality cargo.

Therefore, his report stated that the condition of sugar was not as bad as to require disposal on

“as is where is” basis.  The final assessment of loss was given by the Surveyor in June 1995, as

follows:-  

1.   Amount of cargo lost due to cut/torn bags

    discharged  from the vessel                                      7.950 M.T.

2.    Based upon the %age  of damages noticed on

the 34,000 bags the loss in respect of the balance

      cargo of 1,98,427 bags (9921.350 M tons).           34.433 M.T.

3.   Further depreciation allowed on 9,829,766  M.Ts  at 2.5% based on

analysis.                                                245.755 M.T.

4.   Total loss of cargo                                                288.127 M.T.   

17.    While the OPs have relied on the report of the Insurance Surveyor, the complainant has

relied upon the report of their expert agency, Superintendence Co. of India Pvt. Ltd (SCPL). It

talks about delivery of stocks soon after recession of the monsoon and details segregation and

despatch of 77414 (3870MT) between 17.8.1994 and 22.10.1994. SCPL report of 8.8.1995 states

that on the basis of careful visual examination made on 3.10.1994 and excluding 7185.9 MT of

stocks lying in two Port Sheds, “the entire remaining quantity of 2721.95 MT were completely

damaged/wet/moistured conditioned and contents thereon not free flowing and therefore advised

our client to dispose of the above stock immediately on as is where is condition to avoid to avoid

further losses/damages.”    Significantly, this opinion was based on visual examination of

2721.95 MT (corresponding to 54439 bags) stocks. SCPL also relies on segregation of 2000 bags

on 23.10. 1994 and 6000 bags on 22.11.1994, jointly with OP-2. Its conclusion that over 99% of

the remaining stock of 197667 bags (approximately 9883 MT) were damaged, is based on

external appearance of stocks. On the other hand, the Insurance Surveyor has gone further and

based its conclusions on content analyses of sucrose, moisture and polarisation percentages in the

stock of sugar. SCPL report refers to these analyses reports and merely states that moisture

content was above permissible limits. In the affidavit evidence of the complainant it is alleged

that it was the result of selective sampling.

18.    Affidavit evidence of Mr S K Sharma, Deputy Manager, has been produced on behalf of

the insurer,OP-1. Its main thrust is on the contention that despite repeated requests and reminders

from the Surveyor, the complainant did not segregate the stocks. Allegedly, this failure of the

complainant  “further aggravated the loss and had the soaked bags been separated from the sound

one, the moisture would not have affected the sound bags/or the moisture content in cargo would

have been minimal.” However, 6000 bags were segregated in November 1994, as part of content

evaluation exercise. It also refers to analysis of samples drawn on 2.12.1994 and states that,  “It

was noticed that the moisture and sucrose contents were found to be within stipulated limits and

colour of sugar was also within specification.”

19. OBSERVATIONS AND CONCLUSIONS

a.   It is not the case of the complainant that it was not aware that the cargo would arrive

into Magalore Port during heavy monsoon season. But when the cargo arrived, the

complainant did nothing more than storing it in unsafe conditions and waiting for the

monsoon season to pass.

b.   Some damage had already occurred while in the ship hold itself. But it was only 4734

bags out of 276000 as reported by insurance surveyor and not questioned by the

complainant. Admittedly, (para 9 of the complaint) these 4734 damaged bags were re-

bagged into 3428 standard bags. Thus, the net loss before leaving the ship would come

to 1203 standard bags out of 276000 i.e. 0.43%.

c.   Viewed only from external impact on packaging, the above report of the Insurance

Surveyor (preliminary report of 6.10.94 and not followed by a final report) would

show the loss of 65.20 MT out of 236.70 MT i.e. 27.54% of the wet or damaged

bags, which was acceptable to complainant.

d.   Complainant has taken conflicting stands by first claiming that there was no space in

the godowns to take up stock segregation and then arguing that its proposal of

25.7.1994 for stock segregation remained pending with OP-2 till 31.10.1994.

e.   The results of tests to bring out content analyses of sucrose, polarisation and moisture,

has been dismissed by the complainant as outcome of selective sampling. As per the

affidavit evidence of complainant, fresh sampling was done on 2.12.1994. But, its

results are called ‘patently tainted’, without showing how does it become ‘tainted’,

even if it is somewhat different from another analysis.

f.     In Aug-Oct 1994, segregation of 77414 bags with re-bagging, produced 77414 bags of

50 kg sugar. In all 3870.70MTs.Even a subsequent report of 13.12.1994 from the

complainant to OP-2 shows that 33972 bags after rebaging produced 33882 bags of

sugar. Both stocks were moved out for sale. These results would go against

complainant’s claims of extensive damage to the content of externally damaged bags.

g.   Admittedly, the complainant wished to undertake stock segregation at the time of their

despatch from Mangalore. But, till December 1994, only about 111,296 bags were

attended to. Another 8000 bags were segregated as part of a joint evaluation exercise.

There is nothing to show that the balance stock, about 170,704 bags, were also

segregated. Clearly, it is a case of action by the complainant which was too little and

too late.

h.   In the rejoinder filed on behalf of the Complainant in September, 2009, a reference is

made to segregation and re-bagging of 34000 bags of sugar. Admittedly, re-bagging

produced 33882 standard bags of 50 kg each.  But, the stocks were not despatch to

Orissa admittedly for want of a buyer.  It is not the case of the Complainant that the

responsibility for disposal of stocks rested with the OP. Therefore, the complainant has

only itself to blame for its resultant predicament.    

i.     Claim under the policy was lodged on 11.9.1995. The settlement offer from the OPs

came only on 21.5.1998. Even if a reasonable processing time of three months is

allowed, OP’s response was delayed by two years.

j.     Correspondence on record shows that high cost involved in segregation of stocks was

one of the reasons why segregation was deferred by the complainant.  This cost is

admitted by OP-1 in the settlement offered, which raises a question as to why it was

not agreed earlier.

k.    It needs to be observed that the claim of Rs 708.83 lakhs made by the complainant

includes interest claimed at 24%. The interest amount itself comes to Rs 326.4 lakhs.

20.    To conclude, details examined above establish that some damage had already been caused

to the consignment before unloading at Mangalore Port. It is also evident that further damage

was caused by improper storage after unloading. For the latter, major part of responsibility must

lie at the door of the complainant itself. Further, the complainant has failed to establish its claim

for a large settlement of Rs   708.83 lakhs. The attempt of the insured to make external condition

of the sugar bags as the basis for determination of loss has rightly been rejected by the insurer.

However, the failure of the insurer to consider reimbursement of the cost of segregation of stocks

is held to be a deficiency of service. It was eventually accepted, though partly, in the proposed

settlement, as re-bagging cost for 197739 bags. Secondly, inordinate delay in proposing the

settlement itself is held to be another deficiency of service on the part of OP-1. We therefore

deem it just and equitable to allow the following, in addition to the settlement of Rs

44,24,963  offered by OP-1 to the complainant on 8.5.1998--

i.             Compensation for delay in proposing settlement of the claim      Rs eight lakhs.

ii.            Compensation for delay in acceptance of the cost of segregation  Rs five lakhs.

iii.           Litigation cost of Rs two lakhs.

The entire amount of Rs 59,24,963 shall be paid by OP-1 within a period of three months,

computed from 90 days after presentation of the claim to the insurer on 16 th September 1995,

with interest of 8% per annum. Period of delay, if any, shall carry additional interest of 3%

per annum.                       

.……………Sd/-……………(J. M. MALIK, J.)PRESIDING MEMBER ……………Sd/-…………….                            (VINAY KUMAR)MEMBER

s./-

 

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

  

CONSUMER COMPLAINT NO.   161 OF 2013  

  

 

Anand Diamonds Pvt. Ltd. 1980, Ist floor Katra Khushal Rai, Kinari Bazar, Chandni Chowk, Delhi-110006

……Complainant (s)

Versus

 1. National Insurance Co. Ltd. (A Govt. of India Undertaking), 808-809, Kailash Building , VIIIth  Floor, 26, K.G. Marg, New Delhi.

 2.   Bank of India New Delhi Mid Corporate Branch, 37, Shahid Bhagat Singh Marg, (Near Shivaji Stadium), New Delhi.

…….Opp. Party (ies)  

 BEFORE:

 HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER

          HON’BLE DR. S. M. KANTIKAR, MEMBER

  

For the Complainant (s)   :   Mr. Rahul Sharma, Advocate 

 PRONOUNCED   ON :     5 th     JULY, 2013  

ORDER 

JUSTICE J. M. MALIK, PRESIDING MEMBER

  

1.      The complainant has made a vain attempt to make bricks without straw.  Dacoity/robbery

has to be proved not assumed.  Can robbery of goods is a gooddefence to save yourself from

the vigours of the Law under the SARFAESI Act.  We have heard the counsel for the

complainant at length.

 

2.      The complainant,  Anand Diamonds Pvt. Ltd. is owned by Mr. Rajesh Anand and his wife

Mrs. Chandni Anand.  The complainant company is a manufacturer and a wholesaler

of jewellery dealing in both diamonds and gold.  The business activities are transacted from their

premises No. 1980, Ist FloorKatra Khushal Rai, Kinari Bazar, Chandni Chowk, Delhi-110006.

 

3.      The complainant approached the Bank of Inida –OP No. 2, which granted credit limits for a

credit amount of 4.5 crores.  The complainant mortgaged two immovable properties in favour of

the Bank in February 2008.  As agreed and stipulated, hypothecated stocks of jewellery were got

insured with the Respondent No. 1.  The insurance amount went on increasing and on

23.03.2010, it was increased to Rs. 12 crores vide insurance policy.

 

4.      On 26.03.2010, 4 unknown persons entered into the business premises of the

complainant.  They showed the visiting card of M/s Sri

Ram Jewellers,Sadar Bazar, Gurgaon.  When they were being shown the jewellery and other

articles they committed the robbery on gun point after trying the staff present on the side and

ensuring that none was able to raise alarm.  They looted gold/gold jewellery &

diamond jewellery lying in the premises which were worth Rs. 11.41crores and its value stands

increased to Rs. 25 crores at the time of filing of this complaint.  The police was informed

immediately.  FIR was lodged for offences under sections 392/397 read with Section 34 of

IPC.  The intimation was furnished to the National Insurance Company Limited-OP-1.  The

complainant filed claim in the sum of Rs. 11.41 crores with the OP-1.  However, despite several

reminders no claim was granted. 

 

 

5.      However, the OP continued paying the installment/interest to the OP-2 till 31.03.2011 in

the hope of claim being paid.  In the meantime Bank of India –OP-2 delcared the account of the

Complainant as N.P.A. on account of non-payment on 29.09.2011.  OP-2 issued a noticed dated

21.10.2011 U/S-13(2) ofSecuritisation and Reconstruction of Financial Assets and Enforcement

of Security Interest Act, 2002 (in short, ‘SARFAESI Act) thereby calling the complainant to pay

the entire amount of Rs. 1,49,76,125.03/- alongwith the interest within 60 days.

 

 

6.      The police filed a closure report as the police could not find any clue about the culprits on

26.02.2011.         On 17.10.2011, OP-1 filed an application U/S 173(8) of Cr.P.C. raising doubts

on the police investigation.  The said application was dismissed by the learned M.M. 

7.      The request made by the complainant to the bank that under these circumstances he was

unable in clearing the debts and its claim will be settled when the claim is granted by the

Insurance Company was rejected.  On 30.07.2012, the complainant filed a complaint against the

OPs.  Notice was issued in that complaint.  Thereafter, the OP-1 illegally and arbitrarily vide

letter dated 24.09.2012 repudiated the claim of the complainant, by falsely contended that no

incident of robbery took place in the shop of the complainant.  The complainant desired to

withdraw the complaint so as to include the facts mentioned in the repudiation letter.  The

complaint was dismissed as withdrawn with the liberty to file another complaint on the same

cause of action. Consequently, this fresh complaint has been filed. 

 

8.      We have heard the counsel for the complainant at the time of admission of this

complaint.  He contended that the police investigation clearly goes to show that the above said

incident had taken place.  He further explained that the investigator was an Ex-Delhi Police

Officer, also supported that the incident had taken place. 

 

9.      As a matter of fact, the repudiation letter is very crucial.  It is wee bit lengthy one but to

understand this case completely it has become necessary to reproduce it fully. The letter of

repudiation dated 24.09.2012 runs as follows:-

 

“Kindly refer to your claim under the Jewellers Block Policy No.

354301/46/09/3700000372 regarding the loss on account of alleged robbery on

26.03.2010.  The claim has been examined and considered by the competent authority of

the company in detail in terms of the Jewellers Block Insurance Policy terms, conditions

and exceptions.  Various observations have been made by Sh. Vinod Sharma,

Surveyor.  In his Survey Report indicating that there are many inconsistencies and

contradictions in the alleged material event, as reported by you.  To recap, based on the

Surveyor’s observations as well as our own:

1.   On enquiring from the other shopkeepers in the same building/ on the ground

floor/neighbourhood, it was found that nobody noticed the said looting nor were

aware of it, till the same was reported in a newspaper.  Even the Police visit was

taken as a routine matter.

2.   The area in which the Insured location/ establishment is located is a highly and

thickly populated area and to escape with the bags, is very difficult for any

Robber/s.  No four wheeler can enter the area from a long distance, and even for

two wheelers also it is very difficult to drive in that locality/area.

3.  You, as the Insured and your staff, instead of raising the alarm, went to the Police

post located at some distance on foot.

4.  Nearby/neighboring Shopkeepers came to know about the event and the quantum

of loss of Rs. 8-10 Cr. from the Newspaper only, when news was published after 5

days.

5.  There was no media reporting of the alleged event from 27th March till 31st March

2010.  It came only in a Hindi Newspaper, ‘Nav Bharat Times’.

6.  During the Surveyor’s visit to your establishment on 31st March, Mr.

Rajesh Anand was not available and the staff and father of Mr.Rajesh Anand told

that Mr. Rajesh Anand had gone to the Police Station as they wanted him for

some identification.  However, when the Surveyor immediately went to the Police

Station and met the SHO and IO, they had to state that they never

called Mr.Rajesh Anand, on that day.

7.  There is an increase in the sum insured of Rs.7.5 cr. immediately before the

alleged event and alleged loss.  Throughout the year 2009-10, stocks as per stock

statements to Bank was more than Rs.12 Cr. However, you had opted for a sum

insured of only Rs.1.50 crores at inception, increased it by another

Rs.3.00 crores on 24.02.2010, and another Rs.7.5 Cr. on 23.3.2010, which was

suddenly increased to Rs.12 cr on 23.03.2010, just 3 days before loss.  There is no

convincing justification for the said increases, particularly of Rs.7.50 crores from

your side.

8.  The entire stocks from the shop were reportedly looted/taken away by the alleged

miscreants.  Reportedly, not even a single piece was left.  As per  your statement 4

persons took away the jewellery in 4 bags.  The total weight

of jewelleryreportedly stolen is approximately 50.00 Kgs.  It does not appear to

be convincing that nobody noticed the 4 persons carrying 4 bags of jewellery,

weighing approx. 50.00 kg each.

9.  There is a contradiction in the statement regarding masks used by the

miscreants.  At the time of looting, they used mask, in between.  Definitely while

escaping they must have taken out the masks.  Why these were used in between the

looting is inexplicable, particularly considering the fact that they had not used

masks, while entering the shop.

10.Even in small jewellery shops, CCTV is installed.     The CCTV installed by

you was reportedly having no recording facilities.  It is only used to have a watch

on the entry from the staircase.  At the time of incident, CCTV was not

working. There is contradiction regarding CCTV.  You did not

reply/clarify/confirm properly that the CCTV in question, sans the recording

facility was not working at the time of the alleged incident.

11.      As per your statement, miscreants/robbers

remained in shop for half-an-hour.  However, surprisingly no customer came in

between.  And you claim to be one of the leading showrooms in that area?

12.      During the Surveyor’s visit, he was told that

due to firing from pistol of miscreant, glass got broken.  Subsequently, in all

statements, police report, this information was changed and it is mentioned that

insured, Sh. Rajesh Anand threw the tray on one miscreant, which hit the glass

and same got broken.

13.      The Investigator appointed by us (Sh. L.D.  

Arora) failed to obtain information regarding stocks in possession of your

employee, Shri Makkan Lal, who was on official duty, outside the office at the

time of alleged incident.  Sh. Makkan Lal was having 4 boxes of jewellery with

him, which, he was carrying for Hall Marking.

14.               You could not explain why Sh. Makkan Lal, who untied the rope/s of the

person/s tied up, did not call the police from his Mobile.

15.      As per the Surveyor, when he went  to Police Station and met SHO and

concerned IO, during Internal/Initial investigation, at that time, they, i.e. the

Police were doubtful about the occurrence of event and quantum of loss.

16.      There is a contradiction in your reply regarding how the police was

informed.  As per one statement of yours, your employee Sh.

S.K. Aggarwal walked to the nearby PCO and informed the Police at

100 No.   However, during the Surveyor’s visit, he was told that Sh.

S.K. Aggarwal went on foot, to the Police Station which is at about 10

minutes walking distance.  Further, as per the Surveyor, and to which we also

agree, the employee concerned could have immediately gone down and

informed the police from the ground floor shops.  In fact, such employee or

Mr. RajeshAnand himself could have raised an alarm, soon after being untied

right from outside the shop, even which was not done.  Why such alarm was

not raised, and why the Police was not informed from the ground floor shop/s

itself, is not clear.

17.      The nearby shop keepers were not even aware of such an incident, till it

was reported in a Hindi Daily, five days after.

18.      Mr. Rajesh Anand did not clearly explain the number of mobile phones he

is/was having.  As per the Surveyor’s information, Mr. Rajesh Anand was

having two mobile connections and mobiles.

19.      You made a vague reply regarding intimation to the local Market/Traders’

Association.

20.      You did not give proper reply regarding loans from Banks by the family

members/close relatives of the Director (Mr.Rajesh Anand).  The Police

reportedly verbally informed the Surveyor that the Director and/or his family

members have taken various loans from different Banks and are in default.

The observations made by the Surveyor in his Survey Report, clearly show that

there are many anomalies, inconsistencies and contradictions in

the event ,as purportedly reported by you.  Such an event or even attempt of threat

is not remotely possible in a plea like where the Insured

location/premises is located.  There is a contradiction with regard to the incident

of gunshot also.  There is no mention of the incident of gun shot in the FIR & the

final report.  If there was a gunshot, the whole neighbourhood should have been

upon the shop.  Even a violent breakage of the glass, should also have brought the

whole neighbourhood, down to your shop.

The absence of a CCTV or it’s non-functioning, if installed, the statement that the

glass/mirror got broken due to the throwing of a plate by an employee at one of

the perpetrators, the role of the Peon, Mr. Makkan Lal, the story about some of

the stocks having been taken for Hall Marking’, the ‘No objection’ statement

given by you, for closure of the case by the P.S. and issuance of the

Final Untrace/Closure Report, all clearly indicate that you were not keen for

proper & further investigation of the case by the Police, even which further

confirms our suspicions that the event of the alleged Robbery was stage-

managed.  It is obvious that you were keen to recover the insurance claim amount

from the Insurance Company, as you were in financial distress.  It is obvious that

no such alleged robbery ever took place.

The alleged event  took place, within 3 days of the SI being

enhanced.  Incidentally, you were maintaining stocks of high value, as much as

around, 15 crores even, but had insured only for 1.50 crores, in the previous

year’s policy and also at the inception of the renewal of the policy, which is

material to this claim.

All facts considered, including the circumstantial evidence, the inconsistencies,

the anomalies, the contradictions, we are of the considered opinion that this claim

is based on fraud/fraudulent means.  Neither such an event as alleged ever took

place nor have you suffered any such loss, as claimed due to any alleged Robbery.

Condition No. 9 of the Policy contract provides:

“If the claim be fraudulent or if any fraudulent means or devices be used by the

insured or any one, acting on his behalf to obtain any benefit under this policy, or

if any destruction or damage be occasioned by the willful act or with the

connivance of the insured, all benefits under this policy shall be forfeited.”

Besides Condition No. 9, there is breach of Condition no. (ii) and condition no. 10

of the policy of insurance.  The said two conditions i.e. no. (ii) and 10, deal with

‘the duty of the Insured to act, as if uninsured” and “due diligence and

reasonable dispatch” respectively.

We accordingly hereby regret our inability in unequivocal and categorical terms

to admit any liability, whatsoever, in respect of this claim of yours, in terms of the

terms and conditions of the governing Policy contract”.

 

10.    It is surprising to note that the counsel for the Complainant could not explain all these

reasons noted in the repudiation letter.  He could not deny all these facts.  He was asked to

produce the Hindi Newspaper which was allegedly published five days after the incident.  He

admitted that he has not attached that Hindi Newspaper with the complaint.  He however, argued

that, that paper finds mention in the documents produced by him.

 

11.    Secondly, the police also did not take any effective action.  It is difficult to fathom why the

case was sent as untraced.  Why the police was not able todetect , even a single clue.  The

repudiation letter clearly shows that the case of the complainant is an inchoate mix of

irreconcilable opposites. Such like stories can be created at any time.  Arrest of the robbers or

recovery of any article would have done the trick.  No evidence was adduced, no proof, from

where these ornaments were purchased, was produced.

 

12.    Last but not the least, it is difficult to fathom as to why Bank of India was made a party in

this case.  Bank of India has nothing to do with the Insurance Policy.  They have no privity of

contract with the complainant or with the Insurance Policy.  It appears that in order to save

themselves from provisions of SARFAESI Act,   this false case was instituted. Bank has to do

nothing with the loss.  No relief has been claimed against the bank.  Attempt was made to punish

them for proceedings against the complainant U/S- 13(2) of the SARFAESI Act.  The Complaint

has no merit and the same is dismissed in limine.

 

 

.…..…………………………

(J. M. MALIK, J)

                              PRESIDING MEMBER 

                  .…..…………………………

(S. M. KANTIKAR)

                MEMBER

Jr/4

 

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.3916 OF 2010(From the order dated 25.02.2010 in  F.A. No.749/2007 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad)

 SMT. P. LAXMI W/O RAMULU R/O 5-1-87/M/C, SIDDARTHNAGAR, SANGAREDDY TOWN, MEDAK DISTRICT, A.P.

.….. PETITIONER  Versus

THE BRANCH MANAGER, UNITED INDIAN INSURANCE COMPANY, SANGAREDDY BRANCH, MEDAK DISTRICT, A.P.

....... RESPONDENT 

BEFORE:

HON'BLE MR.JUSTICE K.S. CHAUDHARI, PRESIDING MEMBERHON’BLE MR.SURESH CHANDRA, MEMBER

 For the Petitioner         : Ms.Surekha Raman, Advocate

For the Respondent    : Mr.Maiban N. Singh, Advocate

 PRONOUNCED ON:               JULY, 2013

  ORDER

 PER SURESH CHANDRA, MEMBER

The petitioner who is the original complainant has filed this revision petition to challenge the order dated 25.02.2010 passed by the A.P. State Consumer Disputes Redressal Commission, Hyderabad in F.A. No.749/2007.  The OP, which is an insurance company, is the respondent herein. 

 

2.      There is a delay of 118 days in filing this revision petition for which the petitioner has

filed an application for condonation.  For the reasons stated in the application and the

submissions made by learned Amicus, the delay in filing the revision petition is condoned.

 

3.      Briefly stated, the petitioner being the owner of the lorry bearing no. AP 31T 0599

insured it with the respondent company for the period from 17-11-1999 to 16-11-2000.  This

lorry met with an accident on 28.08.2000 in the outskirts of Sadasivpet town of Medak.  The

incident of accident to the lorry was reported to the Police Station on 28.08.2000 and was

also intimated to the respondent company on telephone followed by written

communication.  Immediately, the OP sent a surveyor to conduct spot inspection.  The

surveyor took photographs of the damaged vehicle and asked the complainant to submit her

claim for settlement.  The complainant submitted her claim and asked permission of the

surveyor for shifting his damaged vehicle to the workshop, which was granted.  It is alleged

that while shifting the damaged lorry by towing it by another lorry on 02.09.2000,

somewhere on the way the link chain between two Lorries got broken which allegedly

resulted in the second accident.  It is stated that the said fact about the second incident was

also intimated to the respondent company on telephone and the complainant also lodged the

complaint before the police.  One more surveyor came to be appointed who also conducted

survey by taking photographs of the damaged vehicle along with estimate and original bills

for the repairs done to the tune of Rs.1,22,190/-.  The grievance of the complainant is that in

spite of submission of the claim and notice to the insurance company, her claim was

repudiated, which made her to file a consumer complaint against the OP insurance company

praying for a direction to pay compensation of Rs.2 Lakhs towards repairs of the damaged

vehicle along with interest @18% p.a. and Rs.20,000/- towards compensation and costs.

 

4.      On being noticed by the District Forum, Medak, the OP filed counter and while

admitting the issuance of the insurance policy for the period in question to the vehicle and

intimation about the accident on 28.08.2000, the insurance company denied the second

accident or any intimation about it to the company or to their Divisional Office on

11.09.2000.  The insurance company also submitted that the claim of the complainant for

compensation was repudiated because she did not file copy of the police report and also

when asked to submit the documents including the original bills, no such documents or the

bills were sent by her.  Denying any deficiency in service on its part, the OP insurance

company prayed for dismissal of the complaint.  On appraisal of the evidence placed before it

by the parties, the District forum by its majority opinion held that there was no deficiency in

service on the part of the OP insurance company and hence, dismissed the complaint. 

 

5.      Aggrieved by the aforesaid decision of the District Forum, the complainant filed an

appeal before the State Commission, which was partially allowed by the State Commission

by its impugned order in terms of the following directions:-“In the result, the appeal is allowed partly, setting aside the order of the

District Forum and as a consequence the complaint before the District

Forum is allowed partly directing the opposite party insurance company to

pay to the complainant an amount of Rs.7,425/- with interest at 9% p.a.

from the date of claim  i.e. 11-9-2000 till the date of realization and

proportionate costs in a sum of Rs.1,000/- within six weeks from the date

of  receipt of this order.” 

 

6.      Not satisfied with the partial relief granted by the State Commission vide its impugned

order, the petitioner has filed this revision petition praying for setting aside the impugned

order and remanding the matter for afresh appraisal in view of raising the various points by

her in the revision petition.

 

7.      We have heard Ms.Surekha Raman, Amicus for the petitioner and Mr.Maiban N. Singh,

Advocate for the respondent company.

 

8.      Two issues have arisen for our consideration and decision.  The first issue is as to

whether the second accident took place while towing the lorry on 02.09.2000 as alleged by

the petitioner and secondly in the given facts and circumstances of this case any interference

is called for with the impugned order giving partial relief to the petitioner. 

 

9.      So far as the first issue is concerned, the State Commission has considered this aspect at

great length in the impugned order based on the evidence before it and concluded that there

was no second accident on 02.09.2000 as alleged by the petitioner.  The State Commission

has made following observations while rejecting the claim of the petitioner regarding

occurrence of the second accident:-“The opposite party however stated that it was informed only about the first accident.  As a matter of fact, this discrepancy is not of much significance as ultimately the claim was made in writing by the complainant on 11-9-2000.  In the said claim form which was obviously subsequent to even the so called second accident, did not make a mention about the second accident.  On the other hand, it specifically gave, while giving a short description and other details of the first accident the following account:

‘While my vehicle was proceeding from Sangareddy to Tandur near at the accident spot while tried to overtaking a foregoing truck steered to right applied brakes.  At that time in order to avoid a hit of opposite coming vehicle steered to left.  Due to his my vehicle slipped and skidded and dashed the foregoing truck and again dashed a tree which was living on left of the road caused heavy damage. Estimate enclosed’.

No where in Ex.B2 do we find reference to the second accident.”

 

10.    We agree with the view taken by the State Commission.  Incidentally, learned Amicus

has admitted that there is no claim being pressed for the second accident to the vehicle.  This

leaves us with the second issue in respect of the adequacy or otherwise of the relief already

granted by the State Commission through the impugned order.  We may note that after going

through the submissions and appreciating the evidence, the District Forum vide its majority

opinion dismissed the complaint of the petitioner outright.  The minority judgment however

allowed compensation of Rs.73,000/- to be paid by the OP insurance company to the

petitioner.  After going through the preliminary report of the spot surveyor and the final

report of the second surveyor which assessed the loss, the State Commission came to the

conclusion that even though there was no cogent evidence to support the huge claim of the

petitioner to the tune of Rs.2 Lakhs, the conclusion drawn by the second surveyor in his final

report in respect of the entitlement of the petitioner to a net compensation of Rs.7,425/-

should not have been ignored by the District Forum.  In view of this, the State Commission

has rightly set aside the order of the District Forum and given the aforesaid partial relief to

the petitioner.  Here again the State Commission has recorded reasons for its findings in

respect of this partial relief and the same can be reproduced as under:-“It is no where stated in the complaint that she got effected the repairs and for

getting the repairs she had spent so much money. This is exactly what is

decisive of the claim as claim cannot be adjudicated on the basis of

estimates.  Estimates were only for the purpose of arriving at a figure

tentatively.  As a matter of fact, the surveyor proceeded to assess the damages

at the workshop at Vijayawada carrying with him the estimate, Ex.B10

furnished by the complainant and had come to a firm conclusion that the

complainant was entitled to a net amount of Rs.7,425/-. This is rather an

amount admitted by the opposite party.  The complainant totally failed to

adduce cogent evidence to support her huge claim of Rs.2,00,000/-by failing to

produce the original bills but at the same time pretending that she so produced

without any acknowledgement to that effect nor any reference to such

production in the relevant documents especially the claim form marked as

Ex.B2.  The complainant contended in para 6 of her complaint that she had

submitted the original bills to the surveyor, V.V.S.Ram Prasad of Vijayawada

appointed by the Divisional Office for conducting the survey of damaged

vehicle and it is simply absurd that she could have submitted the original

repairs for the repair done amounting to Rs.1,22,190/- as contended by her in

the said para for the simple reason that Ex.B12, dated 20-4-2001, the report

of Mr.V.V.S.Ram Prasad,  specifically referred to his time of survey as having

been carried on 12th 14th, 18th and 25th September by which time  the vehicle

was not at all  subjected to repairs  as is  obvious from the fact that the

complainant  did not tender any evidence to that effect.   Apart from all this, if

really the complainant had spent so much money nothing prevented her from

filing the affidavit of the person who effected the repairs at Vijayawada

workshop and also file if necessary duplicate copies of the bills if really she

had ever taken the original bills.  Thus the amount claimed is totally

unsubstantiated.  Nevertheless as per Ex.B12, damage did occur and the

damage was translated into monitory terms fixing it at Rs.7,425/-.   The

minority order of the District Forum rendered by the President quantified the

relief at Rs.73,000/- comprising Rs.68,000/- plus Rs.5,000/- basing on his

appraisal of the photographs. But this is very unscientific as the President

himself stated that he worked it out by guess work.  The total denial by the

minority is also not acceptable.  Thus the failure of the opposite party to offer

relief in terms of Ex.B12 rather marks a certain amount of deficiency in service

for which a suitable relief can be granted.  In these circumstances, the

complainant has to be granted a relief commensurate with the loss she

sustained in the accident as established by the entirety of the evidence  in the

case.  Going by such yardstick, the amount that she can be validly granted

would boil down to an amount of Rs.7, 425/- as drawn from the only reliable

document in this regard.   Of-course the complainant is also entitled to the

concomitant interest and the proportionate costs as well. ”

 

11.    On perusal of the record including the reports of the spot surveyor as well as the second

surveyor, we are of the considered opinion that the State Commission has given a fair and

just finding in respect of the entitlement of the petitioner for the damage suffered by her

vehicle.  We do not see any reason to interfere with this finding of the State Commission.

 

12.    In view of the discussion above, there is no need to remand the matter.  The impugned

order having been passed on the evidence placed by the parties, the same is

upheld.  Consequently, the revision petition stands dismissed with no order as to costs.

 ……………Sd-……..………..

     (K.S. CHAUDHARI, J.)

      PRESIDING MEMBER

                                                            

  ……………Sd-….……………

SURESH CHANDRA)

bs                                                                                  MEMBER 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI                                                         

FIRST APPEAL NO. 169 OF 2013

(Against the order dated 19.12.2012 in CC No.02/2009 of the State Commission, Haryana)

M/s. Ravindra Spinners Ltd., Through its Director Sh. Anish Singla V.P.O. Kabri, Panipat (Haryana)

……….Appellant

  Versus

1. National Insurance Company Ltd. Through its Regional Manager SCO No.337-340, Sector 35-B, Chandigarh

 2. National Insurance Company Ltd., Through its manager Near Kishore Theater, G.T.Road, Panipat

.........Respondent

 BEFORE

HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER  For the Appellant         :   Mr. Arvind Jain, Advocate  PRONOUNCED ON: 08/7/2013. 

ORDER

PER MR.VINAY KUMAR, PRESIDING MEMBER

          M/s. Ravindra Spinners Ltd. has filed this appeal against the order of Haryana State

Consumer Disputes Redressal Commission in Consumer Complaint No.02 of 2009.  The State

Commission has dismissed the complaint on the ground that the claim of the Complainant under

the policy had been settled by the respondent/National Insurance Co. with payment of Rs.51.89

lakhs on 14.3.2008, which had been accepted by the Complainant in full and final settlement of

the claim. 

2.      The appeal has been filed with delay of 27 days.  Explanation for it is contained in the

application for condonation of delay.  On perusal of the same the delay is condoned.

3.      The records submitted on behalf of the appellant have been perused and Mr. Arvind Jain

Advocate has been heard at length on behalf of the appellant. The case of the

appellant/complainant, as seen from the complaint filed on 7.1.2009 before the State

Commission, was that it had received the amount under coercion/compulsion due to financial

constraints.  The memorandum of appeal also states that the State Commission has failed to

appreciate that the Complainant accepted the amount under pressure and due to financial

problem.  It is contended that the State Commission failed to appreciate that the ‘full and final’

acceptance cannot be held against the appellant/Complainant as it amounted to reduction of the

claim to 75%. 

4.      Learned counsel for the appellant Mr. Arvind Jain argued that the allegation of

coercion/pressure should have been appreciated by the State Commission in the light of the fact

that the Complainant had lost everything in the accident of fire and was left with no option but to

accept whatever was offered.  However, learned counsel clarified that no specific evidence on

the plea of coercion had been led before the State Commission.  He accepted that no evidence

was produced before the State Commission to show that the amount of Rs.51.89 lakhs was

received under protest.  He also accepted that the discharge slip acknowledging the payment in

full and final settlement was signed on 14.3.2008, while the legal notice was issued by the

appellant to the respondent/Insurance Company nearly four months thereafter, on 5.7.2008.

5.      On consideration of the pleadings and evidence before it, the State Commission has arrived

at the following categorical decision:-

“Having considered the facts and circumstances of the case and the ‘Discharge voucher’, we find force in the contention raised on behalf of the opposite parties.  It is well settled law that once the claim has been accepted by the claimant without any objection by signing consent letter in full and final settlement of claim offered by the Insurance Company, thereafter, the claimant cannot be allowed to reopen his claim seeking any further relief.  However, mere execution of discharge voucher in the form of letter of indemnity cannot deprive the claimant of consequential relief if discharge voucher was obtained by fraud, misrepresentation or under coercion.  There is no evidence on behalf of the complainant that any fraud or misrepresentation or coercive method was adopted by the Insurance Company upon the complainant at the time of signing the discharge voucher and as such the complainant is not entitled for any further compensation.”

 

6.      As seen from the impugned order, the State Commission has relied upon the law as laid

down by Hon’ble Supreme Court of India in United India Insurance Vs. Ajmer Singh cotton and

General Mills  & Ors. Etc. 1999 (2) CPC 601 (S.C) as well as the decision of this Commission

in National Insurance Company Ltd. Vs. Kuka Rice & General Mills, 2008 (1) CPC 28

(Haryana).

7.      Considered objectively, the pleadings and the evidence led before the State Commission

clearly established that:-

a)   That the payment of Rs.51.89 lakhs was received without protest.

 

b)   The discharge slip admittedly signed on 14.3.2008 makes it a full and final settlement of the claim.   

 c)   It took the Complainant nearly four months to give the legal notice of 5.7.2008 on the

ground of coercion/compulsion. 

 d)   The consumer complaint itself was filed before the State Commission on 7.1.2009, which

makes it almost 10 months from the date of full and final discharge, 14.3.2008.

 

8.      The above facts would by themselves indicate that it is a case of action as an

afterthought.  The arguments of learned counsel for the appellant would indicate that the

Consumer Complaint was filed in the background of the information that the Surveyor had

assessed the loss to be Rs.70.5 lakhs while the insured had accepted Rs.51.89 lakhs, in ‘full and

final’ settlement.  It is thus a case where, as rightly observed by the State Commission, the

insured is seeking to reopen his claim for further relief.  No evidence was led before the State

Commission to show that the acceptance of the appellant/Complainant was obtained by any acts

of fraud or misrepresentation or coercion on the part of the respondent/Insurance Company. 

9.      It is therefore, held that the decision of the State Commission is based on complete and

correct appreciation of the evidence on record.  There is no ground to interfere with the

same.  The appeal is therefore, dismissed at the stage of admission itself.  No order as to costs. 

.……………Sd/-……………(VINAY KUMAR)PRESIDING MEMBER 

s./-                             

 

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   2127 OF 2013 (From the order dated 09-10-2012 in First Appeal No. 1844 of 2008 of the State Consumer Disputes Redressal Commission, Haryana)

WITH I.A./3563/2013 (FOR CONDONATION OF DELAY)

 

 Kapil Sharma S/o Late Shri Satbir Singh Sharma R/o Village Durjan Pur, Tehsil Narwana, District – Jind (Haryana)

… Petitioner/Complainant

         VersusLife Insurance Corporation of India Jeevan Parkash Building, Sector-17, Chandigarh (U.T.) Through its Divisional Manager/ Manager(Legal)

… Respondent /Opposite Party

BEFORE:

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner            : Dr. Sukhdev Sharma, Advocate

PRONOUNCED ON           10 th       JULY, 2013

O R D E R 

 PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

1.      This revision petition has been filed by the petitioner against impugned order dated 09-10-

2012 passed by the learned State Consumer Disputes Redressal Commission, Haryana (in short,

‘the State Commission’) in Appeal No. 1844 of 2008 – Life Insurance Corporation of India

Vs. Kapil Sharma, by which while allowing the appeal, order of the District Forum  allowing  the

complaint was set aside.

2.      Brief facts of the case are that Satbir Sharma, father of the complainant/petitioner obtained

policy for Rs. 1.00 lakh from opposite party/respondent on 22-02-2006.  Insured died on 24-04-

2006.  Complainant submitted claim, which was repudiated by the opposite party

on the  ground  that  life assured was chronic alcoholic and suffered from  Cirrhosis and  this

fact  was not disclosed by the deceased  in  the proposal form.  Complainant  alleging deficiency

on the part of opposite party, filed complaint before District Forum.  Opposite party resisted

claim on the ground mentioned in repudiation letter and prayed for dismissal of

complaint.  Learned District Forum after hearing  both  the parties,  allowed  complaint and

directed opposite party to pay Rs. 1 lakh along with 9% p.a. interest and Rs.1,000/- as

costs.  Respondent filed appeal against the order and learned State Commission  vide  impugned

order allowed the appeal and dismissed complaint, against  which  this

revision  petition  has  been filed along with application for condonation of delay.

3.      Heard learned Counsel for the petitioner on application for condonation of delay as well as

on merits, at admission stage and perused record.

4.      Petitioner moved an application for condonation of delay of 107 days

and alleged  that copy of the order was received on 15-11-2012 and approached his counsel in

December, 2012, who demanded records.  Petitioner contacted his counsel at Panchkula, who

provided photostat copies of record on 20th April, 2013 and this revision petition was filed on

24th May, 2013.  As per application for condonation of delay, there was delay

of 107  days whereas, as per report of the office, there is delay of 100 days in filing revision

petition.  Apparently petitioner has not   given   any  cogent  reason for  condonation  of

delay.  When on 20-01-2013 counsel for the petitioner at Panchkula shown his inability to

provide record, he should have applied for certified copies of the record. Not only this, when

photostat copies of record were made available by advocate at Panchkula on 20-04-2013,

revision petition should have been filed immediately  but  it was filed after 34 days of receipt of

record.  Revision petition is liable to be dismissed on the ground of limitation alone.

5.      As far as  merits   of the  case  are concerned,  certificate dated 24-02-2007 issued by

Maharaja Aggarsain Medical

College, Agroha shows   that deceased  assured  was  admitted   in  the   hospital   on 02-04-

2006  and  again  on 23-04-2006  with  history of alcohol for last 15 to 20 years  and  with

Cirrhosis  for  last  one year.  Insured  also   remained on  leave   on   medical  grounds from 02-

05-2005 to 30-06-2005 and 01-12-2005 to 10-01-2006  from his employer’s office.

6.      The  contract of  insurance  is based on the doctrine of utmost good faith and life  assured

was under an obligation to disclose each and every aspect with respect to his health at the time of

submitting proposal form.  Insured had not disclosed fact of being alcoholic for last 15 to 20

years and suffering from Cirrhosis for last one year and had not disclosed fact of remaining on

leave on medical grounds for about 3½ months and in such circumstances, on account of

suppression of material facts regarding health, respondent  has  not committed any error in

repudiating claim filed by the petitioner.

7.      Learned State Commission  dealt with suppression of material facts at length and had

arrived at correct conclusion that life assured concealed  true  and material facts with respect  to

his health at the time of taking of the policy and has  rightly  allowed  the appeal.   We do not

find any illegality, irregularity or jurisdictional error in  the impugned order, which calls for any

interference  and  revision  petition is  liable to be dismissed. 

8.      Consequently,  revision  petition filed  by the petitioner is dismissed at  admission

stage,  being  barred by limitation as well as on merits, with no order as to costs.

      .……………….………………

(K.S. CHAUDHARI, J)

PRESIDING MEMBER 

                                                                                                                                  

.……………….………………

(DR. B.C. GUPTA)

MEMBER 

 

                                                                                                                                  

aj

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   2126 OF 2013 (From the order dated 28-06-2012 in First Appeal No. 1840 of 2008 of the State Consumer Disputes Redressal Commission, Haryana)

WITH I.A./3562/2013 (FOR CONDONATION OF DELAY)

 

Rajesh Sharma S/o Late Shri Satbir Singh Sharma R/o Village Durjan Pur, Tehsil Narwana, District – Jind (Haryana)

… Petitioner/Complainant

         VersusLife Insurance Corporation of India Through Manager (Legal & HPF), Divisional Office, Sector 17-B, Chandigarh (U.T.)

… Respondent /Opposite Party

BEFORE:

HON’BLE MR. JUSTICE K.S. CHAUDHARI,  PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner                             : Dr. Sukhdev Sharma, Advocate

PRONOUNCED ON         10 th         JULY, 2013

O R D E R 

 PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER         

This revision petition has been filed by the petitioner against impugned order dated 28-

06-2012 passed by the learned State Consumer Disputes Redressal Commission, Haryana (in

short, ‘the State Commission’) in Appeal No. 1840 of 2008 – Life Insurance Corporation of

India Vs. Rajesh Sharma, by which while allowing the appeal, order of the District Forum

allowing the complaint was set aside.

2.      Brief facts of the case are that Satbir Sharma, father of the complainant/petitioner obtained

policy for Rs. 1 lakh from opposite party/respondent on 28-08-2002, which lapsed due to non-

payment of premium for the period from February, 2005 to August, 2005.  Policy was got

revived on 20-09-2002.  Insured died on 24-04-2006 due to Cirrhosis.  Complainant submitted

claim, which was repudiated by the opposite party on the ground that life assured was chronic

alcoholic and suffered from Cirrhosis and this fact was not disclosed by the deceased in the

proposal form.  Complainant alleging deficiency on the part of opposite party, filed complaint

before District Forum.  Opposite party resisted claim on the ground mentioned in repudiation

letter and prayed for dismissal of complaint.  Learned District Forum after hearing both the

parties, allowed complaint and directed opposite party to pay Rs. 1 lakh along with 9% p.a.

interest and Rs.1,000/- as costs.  Respondent filed appeal against the order and learned State

Commission vide impugned order allowed the appeal and dismissed complaint, against which

this revision petition has been filed along with application for condonation of delay.

3.      Heard learned Counsel for the petitioner on application for condonation of delay as well as

on merits, at admission stage and perused record.

4.      Petitioner moved an application for condonation of delay and alleged that he received copy

of the order on 15-11-2012 and approached his counsel in December, 2012, who demanded

records.  Petitioner contacted his counsel at Panchkula, who provided photostat copies of record

on 20th April, 2013 and this revision petition was filed on 24th May, 2013.  As per application for

condonation of delay, there was delay of 174 days whereas, as per report of the office, there is

delay of 100 days in filing revision petition.  Apparently petitioner has not given any cogent

reason for condonation of delay.  When on 20-01-2013 counsel for the petitioner

at Panchkula shown his inability to provide record, he should have applied for certified copies of

the record. Not only this, when photostat copies of record were made available by advocate

at Panchkula on 20-04-2013, revision petition should have been filed immediately but it was

filed after 34 days of receipt of record.  Revision petition is liable to be dismissed on the ground

of limitation alone.

5.      As far as  merits   of the  case  are concerned,  certificate dated 13-04-2007 issued by

Maharaja Aggarsain Medical

College, Agroha shows   that deceased  assured  was  admitted   in  the   hospital   on 02-04-2006

and again on 23-04-2006 with history of alcohol for last 15 to 20 years and with Cirrhosis for last

one year.  Insured  also   remained on  leave   on   medical  grounds from 02-05-2005 to 30-06-

2005 and 01-12-2005 to 10-01-2006 from his employer’s office.

6.      The contract of insurance is based on the doctrine of utmost good faith and life assured was

under an obligation to disclose each and every aspect with respect to his health at the time of

submitting proposal form as well at the time of revival of lapsed policy, as revival amounts to

new contract of policy.  Insured had not disclosed fact of being alcoholic for last 15 to 20 years

and suffering from Cirrhosis for last one year at the time of revival and had not disclosed fact of

remaining on leave on medical grounds for about 3½ months and in such circumstances, on

account of suppression of material facts regarding health, respondent has not committed any

error in repudiating claim filed by the petitioner.

7.      Learned State Commission dealt with suppression of material facts at length and had

arrived at correct conclusion that life assured concealed true and material facts with respect  to

his health at the time of taking of the policy as well as at the time of revival of the insurance

policy and has rightly allowed the appeal.  We do not find any illegality, irregularity or

jurisdictional error in the impugned order, which calls for any interference and

revision petition is liable to be dismissed. 

8.      Consequently, revision petition filed by the petitioner is dismissed at admission stage,

being barred by limitation as well as on merits, with no order as to costs.

      .……………….………………

(K.S. CHAUDHARI, J)

PRESIDING MEMBER 

                                                                                                                                  

.……………….………………

(DR. B.C. GUPTA)

MEMBER 

 

                                                                                                                                  

aj

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   1322 OF 2012 (From the order dated 01-12-2011 in First Appeal  No. 190 of 2010 of the State Consumer Disputes Redressal Commission, Madhya Pradesh)

 

Smt. Satyavati Sharma R/o Village-Lohadwar, Post Office Padra Police Station, Tehsil Raipur Karvelyun, District – Rewa (M.P.)

… Petitioner/Complainant

         VersusLife Insurance Corporation Through Branch Manager, Krishna Complex, Krishna Nagar District, Satna (M.P.)

… Respondent /Opposite Party

BEFORE: 

HON’BLE MR. JUSTICE K.S. CHAUDHARI,  PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner                             : Mr. Vikas Upadhyay, Advocate

For the Respondent              : Mr. Kamal Gupta, Proxy Counsel for

                                                  Mr. Neeraj Gupta, Advocate

                                                           

PRONOUNCED ON         10 th         JULY, 2013

O R D E R

 PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER         

This revision petition has been filed by the petitioner against impugned order dated 01-

12-2011 passed by the learned State Consumer Disputes Redressal Commission, Madhya

Pradesh (in short, ‘the State Commission’) in Appeal No. 190 of 2010  – Smt. Satyavati Sharma

Vs. Life Insurance Corporation, by which while allowing the appeal, order of the District Forum

allowing the complaint was set aside.

2.      Brief facts of the case are that deceased Shyamlal Sharma, husband of the

complainant/petitioner obtained policy for Rs. 1 lakh from opposite party/respondent on 30-03-

2007 and suddenly insured Shyamlal died on 13-06-2008.  Complainant filed claim for payment

of sum assured to the opposite party but claim was repudiated.  Alleging deficiency on the part of

opposite party, complainant filed complaint before District Forum.  Opposite party resisted claim

and submitted that after investigation it was noticed that insured was suffering from heart ailment

and prior to filling proposal form he had taken leave for 289 days on the ground of said

illness.  Deceased had suppressed all these facts in proposal form and therefore prayed for

dismissal of complaint.  Learned District Forum, after hearing both the parties, allowed

complaint and directed opposite party to pay Rs. 1 lakh with 8% p.a. interest and Rs.5,000/- as

compensation and Rs.1,000/- as cost of the complaint.  Appeal filed by the respondent was

allowed by learned State Commission vide impugned order, against which this revision petition

has been filed.

3.      Heard learned Counsel for the parties at admission stage and perused record.

4.      Learned Counsel for the petitioner submitted that as there was no nexus between the cause

of death and alleged illness, learned District Forum rightly allowed the complaint but learned

State Commission has committed error in dismissing the complaint, hence revision petition be

allowed and impugned order be set aside.  On the other hand, learned counsel for respondent

submitted that order passed by learned State Commission is in accordance with law, which does

not call for any interference, hence revision petition be dismissed.

5.      Perusal of record clearly reveals that in the proposal form, insured replied in negative to

Clause 11 (a) & (c) as under:--          “Did you ever consult a Medical Practitioner for any

           Ailment requiring treatment for more than a week?            No

 

 Ever remained absent from place of work on grounds

           Of health during the last 5 years?                                        No”

 

 

6.      On the other hand, record clearly reveals that insured took 289 days leave from the office

and he was suffering from various diseases of the nature and kind which he ought to have

disclosed before issuance of policy.  Learned State Commission rightly observed as under:-

         “We are of the view that in none of these cases the deceased had proceeded on long

leave of 289 days for his treatment and the documentsEx.P/6 to P/18 clearly certify

that he was suffering from hyper tension and diabetes.  Thus, there is sufficient

evidence on record to show that the deceased was suffering from the diseases and

he had suppressed it, indeed he had not disclosed that he had taken leave on

medical ground. All these circumstances lead to irresistible conclusion that the

deceased had deliberately suppressed the pre-existing disease thus, relieving the

Insurance Company of its obligation to pay amount of the insurance.

The counsel for the Insurance Company has relied upon the decision of the

Supreme Court of India in Satwant   Kaur   Sandhu   vs. New India Assurance Co. Ltd. ,

Civil Appeal No. 2776 of 2002 in support of his contention that the IRDA regulation

2(1) (d) (Protection of Policyholders’ interest) defines ‘material’ to mean and

include all important, essential and relevant information to decide whether to

undertake the risk or not.  If the deceased had disclosed the multiple diseases from

which he was suffering, the Insurance Company would have taken decision whether

to undertake the risk or not.”

 

7.      The contract of insurance is a contract of trust and it was obligatory on the part of the

insured to disclose previous disease, treatment, etc. but as deceased not only suppressed all these

material facts, but also answered in negative and in such circumstances, respondent has not

committed deficiency in repudiating the claim.  We do not find any illegality, irregularity or

jurisdictional error in the impugned order and revision petition is liable to be dismissed. 

8.      Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to costs.

      .……………….………………

( K.S. CHAUDHARI, J)

PRESIDING MEMBER                                                                                                                                 

.……………….………………

( DR. B.C. GUPTA)

MEMBER aj

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO.   2862 OF 2008  (From the order dated 13.5.2008 in Appeal No. 541/2007 of the State Consumer Disputes Redressal Commission, UT, Chandigarh)

 

M/s. Tata AIG General Insurance Co. Ltd. A Company incorporated under the Companies Act, having its Registered Office at Peninsula Corporate Park, Nicholas Piramal Tower, 9th Floor, Ganpathrao Kadam Marg, Lower Parel, Mumbai – 400 013 and Zonal Office at 1st Floor, Barjeye Towers, Community Centre, New Friends Colony, New Delhi – 110065

…Petitioner/Opp. Party (OP)

                                          VersusM/s. Balaji Medicos, SCO No. 355, Sector – 32, Chandigarh, through its Proprietor Shri Kewal Krishan

…Respondent/Complainant

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 

For the Petitioner               :     Mr. Anjalli Bansall, Advocate

For the Respondent           :    Mr. Vijay Kr. Mangla, Advocate

PRONOUNCED ON       12 th     July ,     2013

 O R D E R

PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the petitioner/opposite party against the order dated

13.5.2008 passed by the State Consumer Disputes RedressalCommission, UT Chandigarh (in

short, ‘the State Commission’) in Appeal No. 541/2007 – M/s. Balaji Medicos Vs. Tata AIG

General Insurance Co. Ltd. by which, while allowing appeal, order of District Forum dismissing

complaint was set aside.

 

2.       Brief facts of the case are that complainant/respondent was doing business of sale of drugs

and pharmaceuticals as a wholesaler and retailer at shop Nos. 2 & 3, Iron Market, Sector

29, Chandigarh and was also running retail business at Sector 32, Chandigarh under the name

and style of M/s. Balaji Medicos.  Complainant took insurance policy for the goods lying at

its godown in Sector 29 for Rs.10 lakhs from OP No. 1/petitioner which was valid from

18.10.2003 to 17.10.2004.  On account of heavy rains on the intervening night of 2/3-8-2004,

drugs and medicines stored in the godown were damaged, as water had entered

into godown.  Complainant informed to the OP and submitted claim of Rs.10,08,126.20.  OP

appointed assessor to assess the loss and at the instance of surveyor, complainant revised claim

and lodged claim of Rs.9,08,846/-.  OP sent cheque of Rs.6,00,533/- on 26.10.2004 towards full

and final settlement, which was received by the complainant under protest. After legal notice, OP

did not release payment of Rs.3,08,313/- and in such circumstances, alleging deficiency on the

part of OP, complainant filed complaint before District Forum.  OP contested complaint and

submitted that stocks of Sector 29 as well as Sector 32 were damaged. Due to rains, surveyor

assessed loss of Rs.6,00,533/- for the stocks lying in Sector 32 and this amount was paid to the

complainant as full and final settlement and prayed dismissal of complaint.  Learned District

Forum after hearing both the parties dismissed complaint against which, appeal filed by the

complainant was allowed by the impugned order against which, this revision petition has been

filed. 

3.       Heard learned Counsel for the parties and perused record. 

4.       Learned Counsel for the petitioner submitted that, as the amount was accepted by the

complainant in full and final satisfaction of the claim, learned District Forum rightly dismissed

complaint.  It was further submitted that stocks of godown of Sector 29 were only insured and as

per survey report, payment of assessed loss had been made; even then  learned State Commission

had committed error in allowing appeal for rest of the amount; hence, revision petition be

allowed and impugned order be set aside.  On the other hand, learned Counsel for the respondent

submitted that learned State Commission after elaborate discussion has rightly allowed

complaint and order passed by the learned State Commission is in accordance with law, which

does not call for any interference; hence, revision petition be dismissed. 

5.       First question to be decided by this Commission is; whether complainant accepted cheque

of Rs.6,00,533/- towards full and final settlement of the claim, or not. Complainant in para 10 of

the complaint has clearly stated that cheque of Rs.6,00,533/- has been received by the

complainant towards full and final settlement of the claim on 26.10.04. It appears that later on by

hand “and was received under protest” has been inserted.    Affidavit in support of this complaint

has also been filed by the complainant and para 10 of the affidavit does not depict receipt of

payment under protest.  In such circumstances, it can very well be held that cheque of

Rs.6,00,533/- was received by complainant towards full and final settlement to the

claim.  OP/petitioner has clearly mentioned in paragraph 10 of its reply before District Forum

that complainant has received aforesaid amount as full and final settlement of the claim.  Thus, it

becomes clear that complainant after receiving Rs.6,00,533/- on 26.10.2004 towards full and

final settlement of the claim issued legal notice to the OP for release of rest of the amount and

filed Complainant No.274/05.  Ld. Counsel for the respondent could not apprise the date, when

legal notice was given for release of rest of amount and on which date complaint was filed.

Perusal of complaint case number reveals that complaint might have been filed in mid of year

2005, whereas complainant received cheque of Rs.6,00,533/- on 26.10.04.  Filing complaint after

many months and that too without pleading, coercion, fraud, undue influence, etc., it cannot be

believed that amount was received under protest.  Once the amount is received towards full and

final settlement of the claim, complaint for rest of the amount is not maintainable, as held

by Hon’ble Apex Court in JT 1999 (6) SC 23 – United India Insurance V. Ajmer Singh Cotton &

Gen. Mills &   Ors .   etc . and (2000) SCC 334 – New India Ass. Co.

Ltd. Vs. Sri Venkata Padmavathi R&B Rice Mill.  Ld. State Commission has committed error in

allowing complaint, though, complainant received amount towards full and final satisfaction of

the claim. 

6.       As far value of stocks lying in the godown in Sector 29 are concerned, surveyor has clearly

mentioned in its survey report that goods worth Rs.7,39,230/- was lying in Sector 29 and goods

worth Rs.3,14,270/- was lying in shop situated in Sector 32.  Cross-examination of Mr. Shiv

Kumar, Chartered Accountant of complainant clearly reveals that Annexure P-8 was the

consolidated statement of Sector 32 and Sector 29, which was signed by him as well as by

proprietor of complainant firm. Closing stock of both the places was of Rs.10,53,500/-.  In such

circumstances, learned State Commission has committed error in holding that closing stock of

Sector 29 was worth Rs.10,61,150/- and allowing appeal of the complainant.

 

7.       In the light of aforesaid discussion, it becomes clear that, as complainant had accepted

payment towards full and final settlement of the claim and failed to prove stock worth

Rs.10,61,150/- in godown of Sector 29, learned District Forum rightly dismissed complaint and

learned State Commission has committed error in allowing appeal and impugned order is liable

to set aside. 

8.       Consequently, revision petition filed by the petitioner against the respondent is allowed

and impugned order dated 13.5.08 passed by Ld. State Commission in Appeal No. 541/07 –

M/s. Balaji Medicos Vs. Tata AIG Gen. Ins. Co. Ltd. & Ors. is set aside and order of District

Forum dismissing complaint is affirmed.  There shall be no order as to costs.                             ..……………Sd/-………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

 

..…………Sd/-…………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION   PETITION     NO . 342 OF 2013

(From the Order dated 10.10.2012 in Appeal No. 441/2008 of  Haryana State Consumer Disputes Redressal Commission, Panchkula)

 

New India Assurance Co. Ltd. Yamuna Nagag Through its Manager Regional Office, S.C.O. No.36-37 Sector 17-A, Chandigarh

Petitioner

  Versus

M/s Uni Ply Industries Village Jorian Yamuna Nagar Through Sh. Rajiv Gupta S/o Shri H.R. Gupta R/o House No.523-L Model Town, Yamuna Nagar Haryana

Respondent

 

BEFORE:                   HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

       HON’BLE MR. SURESH CHANDRA, MEMBER

 

For the Petitioner                           :              Shri Mohan Babu Aggarwal, Advocate

 

Pronounced   on :   16 th     July, 2013

  O R D E R

 PER SURESH CHANDA, MEMBER

The petitioner Insurance Co. which was OP before the District Forum has filed this

revision petition against the concurrent finding of both the Fora below holding the petitioner

company liable for deficiency in service in terms of the impugned order passed on 10.10.2012 by

the State Consumer Disputes Redressal Commission, Haryana, Panchkula in FA

No.441/2008.  By its order, the State Commission dismissed the appeal of the petitioner Co. and

upheld the order dated 3.1.2008 passed by the District Forum, Yamuna Nagar in consumer

complaint No.1115 of 2007. The District Forum had allowed the complaint of the respondent /

complainant by granting the following reliefs:-

“Resultantly we allow the complaint of the complainant and direct the respondent to pay the balance amount of Rs.10,86,592/- along with interest at the rate of 12% per annum after three months of the causing of fire till realization and to pay Rs.11,000/- as litigation expense. Order be complied within one month.”

2.         Briefly stated, the respondent/complainant had insured stock of its factory for a sum of Rs.30 lakhs vide cover note valid from 10.4.2005 to 9.4.2006 issued

by the petitioner Co. The insurance cover was renewed for next year also by the respondents and was valid upto 9.4.2007. According to the respondent/complainant, the petitioner Insurance Co. issued one page cover note only of the said policy and never issued the terms and conditions with this policy to the complainant. On the intervening night of 5-6 th April 2006, a fire broke out in factory premises resulting into huge loss of stock. The complainant lodged the DDR on 6.4.2006 with the local police followed by intimation to the petitioner Co. which deputed spot surveyor who verified the fact of fire along with Branch Manager of the petitioner Co. The petitioner Co. appointed another surveyor for assessing the loss. The complainant lodged a claim with the petitioner Co. for Rs.19,46,800/- along with necessary documents for settling the claim. The petitioner Co. informed the complainant about the settlement of the claim at Rs.8,60,208/- for which a cheque dated 1.12.2006 was issued by the petitioner Co. to the complainant after making certain deductions from the sum of Rs.10,86,592/- which had been assessed as loss by the surveyor. The respondent / complainant received the said amount and signed the discharge voucher indicating it to be only a partial settlement and thereafter the respondent continued to represent against the deduction made from the sum of Rs.10,86,592/-. Since the differential amount which had been deducted from the figure of loss assessed by the surveyor was not allowed by the petitioner Co., the respondent / complainant filed a consumer complaint alleging it a case of deficiency in service on the part of the petitioner Co. On being noticed, the petitioner Co. contested the complaint and raised the plea that it had already settled the case of the complainant within a reasonable time and paid a sum of Rs.8,60,208/- as full and final settlement and nothing remained due to the complainant by the OP Co. It was further submitted by the OP Co. that the claim was settled as per the report of an IRDA approved independent surveyor and loss assessor who had arrived at a net loss figure of Rs.8,60,208/ subject to terms and conditions as well as limitations and exceptions provided in the insurance policy. Since certain amount was deducted as per excess clause and the net amount had been disbursed as per full and final settlement, the OP Co. denied any kind of deficiency in service on its part and prayed for dismissal of the complaint.

3.         The District Forum after hearing the parties and appraising the evidence placed before it,

allowed the complaint in terms of the aforesaid order which after challenge by the OP insurance

co. before the State Commission came to be confirmed in appeal.

4.         We have heard arguments of learned counsel Sh. Mohan Babu Aggarwal, Advocate for

the petitioner. Learned counsel submitted that petitioner had appointed IRDA approved surveyor

and loss assessor to give his preliminary surveyor report and it had

also appointed  another surveyor to certify and assess the final loss in the premises of the insured.

He submitted that based on the surveyor’s report which assessed the loss to the tune of

Rs.8,60,208/- after making necessary deductions on account of excess clause, the amount was

immediately disbursed to the complainant and the complainant accepted it. He contended that the

surveyor is the best person to assess and ascertaining the loss and its recommendations should

have been accepted as provided in the Insurance Act. Another contention raised by learned

counsel was that the payment made by the insurance co. was by way of full and final settlement

of the claim lodged by the complainant and since he accepted the amount sent by cheque and

signed the discharge voucher, the complainant is not entitled for any further relief. In view of

this, learned counsel submitted that the Fora below erred in ignoring

these aspects  while awarding further compensation over and above that recommended by the

surveyor and already accepted by the complainant towards full and final settlement of its claim.

In the circumstances learned counsel prayed for setting aside of the impugned order and

acceptance of the revision petition.

5.         We have considered the arguments of learned counsel and perused the reports of the

surveyors as well as the orders of the Fora below. The points raised by learned counsel have been

considered at length by the District Forum in its order which has been upheld by the State

Commission by the impugned order. The submission of the learned counsel regarding settlement

of claim by way of full and final settlement is obviously not correct since it was submitted by the

complainant and upheld by the Fora below that the respondent / complainant had accepted the

cheque of Rs.8,60,208/- as partial relief and that too under protest. Nothing has been placed

before us to rebut this fact. Besides this, it is settled law that surveyor’s report cannot be treated

as last word and a gospel truth. The District Forum after considering the report has given its

cogent reasons to disagree with the final figure of loss while giving the desired relief to the

complainant. The State Commission has agreed with the finding. The State Commission while

dismissing the appeal of the petitioner has made the following observations in its impugned

order:-

“After gone through the file as well as arguments of counsel for both the

parties, we are of the considered view that it is admitted fact the factory

of the complainant namely Unit Ply Factor was insured with the OP for

amounting to Rs.30,00,000/- and the said factory was enjoying CC limit

against the stock statement with Oriental Bank of Commerce, Yamuna

Nagar. It is also admitted that on intervening night of 5/6.4.2006 the fire

broke out in the said factory and intimation in this regard was given to

the OP and the complainant also lodged DDR with the police. It is also

admitted that on intimation the OP appointed two surveyors, one for spot

survey and second for conduct the final survey. It reveals from the final

survey report that maximum quantity of insured stock of material was

burnt and mixed up beyond recognition and it was not possible to prepare

inventory of the damage stock. The surveyor after inspect the stock

statement which are issued by the bank, the surveyor observed that on an

average the insured is having stock worth Rs.29 lacs comprising of

finishing raw material and made clear that the statement of account dated

31.3.2006 is shown the stock of Rs.29,29,067/- vide which this is clear

that after deducting the said stock which was not damaged the insured

suffered a loss to the tune of Rs.19,46,800/- lying in the factory premises

due to fire. The surveyor after using the excess clause deduct the 20% as

is clear from the surveyor report. But in our view if the ambiguity in terms

and surveyor apply the excess clause of the policy which were not

supplied the OP cannot claim benefit of the said clause. Moreover, the

full and final settlement was not matured because the complainant

accepted the amount under protest and endorsement to this effect was

made on the voucher that it is part payment. Thus, deficiency in service

on the part of appellant/opposite party stands proved. District Consumer

Forum after considering each and every aspect of the case, rightly

allowed the complaint of complainant.”

6.         The powers of National Commission flows from section 21(b) of the Consumer

Protection Act, 1986 which reads thus:-

“(b)to call for the records and pass appropriate orders in any consumer

dispute which is pending before or has been decided by any District

Forum within the State, where it appears to the State Commission that

such District Forum has exercised a jurisdiction not vested in it by

law, or has failed to exercise a jurisdiction so vested or has acted in

exercise of its jurisdiction illegally or with material irregularity.”

7.         On reading of the above, it is obvious that the National Commission under

its revisional jurisdiction have very limited powers in exercise of revisional jurisdiction. The

National Commission can interfere with the orders of the Fora below if they have exceeded their

jurisdiction under law or failed to exercise their jurisdiction or have acted in exercise of its

jurisdiction with illegality or material irregularity. In the instant case on perusal of the record, we

find that both the Fora below have returned their concurrent finding of fact. On perusal of the

impugned order, we find that the State Commission has based its finding on analysis of the

evidence produced. Counsel for the petitioner has failed to point out any material evidence

ignored by the State Commission. Therefore, it cannot be said that the State Commission while

passing the impugned order has committed any material irregularity, illegality or jurisdictional

error which may call for interference by this Commission, in exercise of

its revisional jurisdiction under section 21(b) of the Act. We, therefore dismiss the revision

petition in limine with no order as to costs.

  ……………Sd/-……..………..

     (AJIT BHARIHOKE, J.)

      PRESIDING MEMBER

  ……………Sd/-….……………

(SURESH CHANDRA)

MEMBER

 SS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO. 1240 OF 2008

(From the order dated 10.12.2007 in First Appeal No. 247/A/2007 of West Bengal State Consumer Disputes Redressal Commission)

 

Amarendra Kumar Roy Thikana Apartments 38, Girish Ghosh Sarani Hakimpara P.O. and PS Siliguri District – Darjeeling

...  Petitioner

  Versus

 1.   Branch Manager Life Insurance Corporation of India Siliguri Branch – II, Station Feeder Road, Silliguri

 2.   Administrative Officer Life Insurance Corporation of India J.P. Building, J.S. Department 16, C R Avenue Kolkata – 700072

 3.   Branch Manager Life Insurance Corporation of India Balurghat Branch, Chakbhabani P.O. Balurghat – 733101 Through its Branch Manager

…. Respondent(s)

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 APPEARED AT THE TIME OF ARGUMENTS

 For the Petitioner(s)   Mr. Niranjan Saha, Advocate

For the Respondent(s)   Mr. Mohan Babu Aggarwal, Advocate

 

PRONOUNCED ON : 16 th   JULY   2013 O R D E R 

PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 against the impugned order dated 10.12.2007 passed by the West Bengal State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No.247/A/2007,

“Branch Manager, LIC versus Amarendra Kumar Roy”, vide which, while allowing appeal, the

order passed by the District Forum dated 25.5.2007 in consumer complaint case number

9/S/2007 was set aside and the complaint was ordered to be dismissed. 

2.     Brief facts of the case are that the complainant/petitioner Amarendra Kumary Roy obtained

one Life Insurance Corporation of India (LIC) policy named “Jeevan Suraksha (Endowment

Funding)” bearing no. 452384400 from Balurghat Branch of the LIC on 13.07.2001.  This was a

policy for five years with yearly instalment of Rs.55,299/- and the date of last payment was

13.07.2006.  LIC issued the policy showing monthly pension at Rs.3,366/- and from  13.08.2006

and the capital sum with guaranteed addition was Rs.3,43,750/-.  The complainant gave his

option under option ‘F’ for life pension under which the pension fund was to be returned to the

nominee/legal heirs on the death of the annuitant.  After completion of five years, LIC sent 13

cheques to the complainant, out of which one cheque was for Rs.1,787/- for the period

13.08.2006 to 31.08.2006 and 12 cheques were for Rs.2,916/- for the period September 2006 to

August 2007.  The complainant took the plea that he was entitled to get pension of Rs.3,366/- per

month as stated on the policy.  The case of the LIC, however, is that a sum of Rs.3,366/- per

month is payable under option ‘D’ and not under option ‘F’.  Moreover, under option ‘D’, the

capital sum amounting to Rs.3,43,750/- is not payable to the nominee / legal heirs after the death

of the annuitant.  This sum is payable under option ‘F’ only and consequently the payment being

made per month was less than that allowed under option ‘D’.  The complainant approached the

District Forum, which allowed his complaint and ordered that he was entitled to get pension

@Rs.3,366/- per month and also the capital sum of Rs.3,43,750/- for his nominee / legal heirs

after his death.  The District Forum ordered the LIC to make payment for the shortfall in the

cheques already issued.  An appeal was filed by the LIC against this order which was allowed,

holding that there was printing error on the policy by which an amount of Rs.3,366/- had been

written.  In fact, this amount is allowed under option ‘D’, whereas the complainant had exercised

option ‘F’ for getting the pension.  It is against this order that the complainant has filed the

present revision petition. 

3.     While arguing the case, the learned counsel for the petitioner vehemently argued that under

the “Jeevan Suraksha (Endowment)” type plan and the tables released by the LIC, the petitioner

was entitled to get a sum of Rs.3,366/- per month as pension and this sum has been mentioned on

the body of the policy as well.  The LIC had, therefore, made grave injustice with the petitioner

by allowing pension @Rs.2,916/- per month.  He admitted that while exercising option, he had

opted for type ‘F’ for getting pension and this factor was mentioned on the ‘cover note’ as well. 

4.     Learned counsel for the LIC, however, stated the amount, Rs.3,366/- had been wrongly

written on the policy.  In fact, this was the amount under option ‘D’ and not under option ‘F’. 

They could not give him pension under option ‘D’ and also allow him the benefit of capital sum

after the death. 

5.     We have examined the entire material on record and given a thoughtful consideration to the

arguments advanced before us. 

6.     The factum of obtaining the Jeevan Suraksha policy by the complainant and the amount of

premium and capital sum with guaranteed addition at Rs.3,43,750/- are admitted by both the

parties.  It is also an admitted fact that the complainant had given option for getting life pension

under option ‘F’ with return of pension fund to the nominee / legal heirs on the death of the

annuitant.  However, simply because of the fact that the LIC committed a mistake by printing

Rs.3,366/- as amount payable per month on the policy, does not entitle the complainant to get the

best under both the options ‘D’ & ‘F’.  The complainant can only be eligible to get the benefit

under option ‘D’ or option ‘F’ and the LIC is agreeable to allow him to choose any of the two

options.  It is quite obvious that the amount payable under option ‘D’, i.e., Rs.3,366/- is higher

than the amount payable under option ‘F’, i.e., Rs.2,916/- because the persons opting to get

pension under option ‘D’ are not eligible to get the payment of the capital sum with guaranteed

addition whereas the same is payable to their nominees / legal heirs under option ‘F’. 

7.     We, therefore, hold that the petitioner cannot be given pension under option ‘D’ and the

benefit of return of capital sum under option ‘F’.  He has to choose between one of the two

options.  We, therefore, do not find any infirmity, illegality or irregularity in the order passed by

the State Commission and the same is upheld.  The revision petition is ordered to be dismissed

with no order as to costs. 

..……………………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER  

..……………………………

(DR. B.C. GUPTA)

MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1975 OF 2013(From the order dated 16.11.2012 in First Appeal No. 662/2011of Kerala State Consumer Disputes Redressal Commission)

1. SKARIAH MATHAI S/O THOMAS SKARIAH,2. P.M JOHNYKUTTY, S/O SKARIAH MATHAI,3. MATHEW VARGHESE, S/O SKARIAH MATHAI,4. P.M. SAJIMON , S/O SKARIAH MATHAI,5. ANNAMMAS MATHEW, D/O THOMAS SKARIAH, REP BY MATHEW VARGHESE BROTHER, all r/o PUTHENCHIRAYIL HOUSE, MEKOZHOOR P.O, PATHENAMTHITTA KERALA...........Petitioner(s)Versus 1. MAR GREGORIOUS MEMORIAL MUTHOOT MEDICAL CENTREREP BY ITS CHIEF MEDICAL OFFICER/ MANAGING DIRECTOR, COLLEGE ROAD, KOZHENCHEERY – 689641 KERALA2. DR. JOLLY V. MATHEW, MGM MUTHOOT MEDICAL CENTRE,COLLEGE ROAD, KOZHENCHEERY – 689641 KERALA3. DR. SUSAN THARIAN, MGM MUTHOOT MEDICAL CENTRE,COLLEGE ROAD, KOZHENCHEERY – 689641 KERALA4. D. DEVARAJAN, CARDIOLOGIST, MGM MUTHOOT MEDICAL CENTRE, COLLEGE ROAD, KOZHENCHEERY – 689641 KERALA5. ICICI LOMBARD GENERAL INSURENCE, ICICI BANK TOWERS,BANDRA KURLA COMPLEX, MUMBAI – 400051 MAHARASHTRA        ...........Respondent(s)BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s)   Mr. K.P. Toms, Advocate

 

PRONOUNCED ON :   19 th   JULY 2013 O R D E R PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 against impugned order dated 16.11.2012 passed by the Kerala State Consumer Disputes

Redressal Commission (for short ‘the State Commission’) in FA No. 662/2011 “Mar Gregorious

Memorial Muthoot Medical Centre Vs. Skariah Mathai,” vide which, while allowing appeal

against the order dated 16.08.2011, passed by District Forum, Pathenamthitta, the consumer

complaint no. 121 of 2007 was ordered to be dismissed. 

2.     Brief facts of the case are that Mrs. Sosamma Mathew, who was the wife of

petitioner/complainant no. 1 and mother of petitioners/complainant nos. 2 to 5 was admitted at

respondent/OP No. 1 Medical Centre on 1.2.2007 with complaints of pain in the neck and

pleuritic pain on the right side of the chest for two weeks before admission.  She was diagnosed

as a patient of Type II Diabetic Mellitus / Hypertension, Bronchogenic Carcinoma with pleural

metastasis, malignant mesothelioma and Coronary Artery Heart Disease.  She was admitted in

the Intensive Care Unit (ICU) under the direct supervision of respondent nos. 1 to 4.  It has been

stated that the condition of the patient worsened on 3.2.2007 when she had chest pain followed

by cardio-respiratory arrest.  She was intubated and put on ventilator by respondent no. 3 who

was anaesthetist on duty.  It has been alleged that the relatives and family members of the patient

were not allowed to see her when she was in the ICU, neither they were given any information

about the condition of the patient and her treatment.  It has also been alleged that the patient was

put on ventilator by the OPs without the consent of the relatives.  The complainants have stated

that the condition of the patient worsened due to wrong medication, medical negligence,

improper management and care, due to which she developed oedema and other respiratory heart

complications and she had to be put on ventilator.  The OPs also served huge medical bills upon

the complainants which was not bearable for them.  They were asked to pay a sum of Rs.43,000/-

which included Rs.27,000/- as hospital charges and Rs.16,000/- for medicines.  They had to pay

that money by borrowing from others.  The complainants, therefore, requested the OPs to

discharge the patient so that she could be taken to some other hospital for treatment.  The patient

was discharged on 08.02.2007 and admitted to Fellowship Mission Hospital at Kumbanad on the

same day.  In the said hospital, she was never put on ventilator and given treatment and

medication of a mild nature and she remained their till 15.02.2007.  The patient, Mrs. Sosamma

Mathew, issued a notice to the respondent hospital on 5.03.2007 and also made a complaint

before the Chief Minister who asked the District Medical Officer to enquire into the matter and

submit report.  Mrs. S. Mathew, however, died on 31.07.2007 due to lung cancer.  The present

complaint has been filed by her husband and children.  The District Forum allowed the complaint

on 16.08.2011 and directed the first OP to return 50% of the treatment expenses along with

compensation of Rs.25,000/- and cost of Rs.10,000/-.  The District Forum also allowed interest

@10% p.a. from the date of the order till realisation.  It was also stated that the OP Hospital

could realise the decreed amount from OP No. 5, Insurance Company, if there was a valid

insurance policy.  An appeal was filed against this order before the State Commission which was

allowed by the Commission and the order of the District Forum was set aside and the complaint

was dismissed.  It is against this order that the complainants have filed the present revision

petition. 

3.     Heard the learned counsel for the petitioners and examined the entire material on record. 

4.     Learned counsel for the petitioner invited our attention to copies of discharge summary

made by two hospitals where the patient was admitted for treatment.  He vehemently argued that

at the first hospital, i.e., OP No. 1, the patient was constantly kept on ventilator, which was not

required.  The moment the patient was discharged by the first hospital, she walked away on her

own and was taken to the Fellowship Mission Hospital where no life-saving support was given. 

The patient was fit to be discharged on 06.02.2007 but the OPs, with an intention to make

money, kept the patient with them in the ICU.  The discharge summary given by the first hospital

indicates that the patient was being discharged against medical advice on the written consent

given by the relatives.  The discharge summary made by Fellowship Mission Hospital, however,

shows that the patient was admitted for palliative care and was given normal treatment.   On the

date of discharge, the oedema had improved as compared to the time of admission.  Learned

Counsel also invited our attention to the complaint dated 06.12.2007 in which it has been alleged

that the complainants had to pay through their nose for hospitalisation and follow-up treatment

and medicines, due to wrong medication, medical negligence and improper management and

care of a critical and terminally-ill patient.  

5.     An examination of the facts of the case make it very clear that as stated by the

petitioners/complainants themselves, the patient Mrs. Sosamma Mathew was a critical and

terminally-ill patient, who was admitted in the OP No. 1 Hospital with multiple problems.  As

stated earlier, the complainants had made a complaint to the Chief Minister against OP No. 1

Hospital and the matter was enquired into by the District Medical Officer (Health),

Pathenamthitta.  The DMO (Health) submitted a detailed report after recording the statements of

the complainants and the concerned doctors.  The report of the DMO shows clearly that the

patient was brought to OP No. 1 Hospital on 1.02.2007 with fluid accumulation in the right side

of the chest.  After check-up, it was detected that the accumulation of fluid in chest was

Misothilioma, a type of cancer.  In order to confirm the same, CT scan of the chest was done and

it was found that she was suffering from bronchogenic cancer that had spread to pleura, and it

was confirmed that the disease was Misothilioma.  The relatives of the patient were informed

that for expert treatment and diagnosis, the patient had to be taken to Regional Cancer Centre,

Thiruvananthapuram.  The report of the DMO makes it very clear that on 3.2.2007, after

midnight, the functioning of heart and lungs of Mrs. Sosamma Mathew had suddenly stopped

and in order to save her life, she was put on ventilator with the consent of relatives.  Her life was

saved due to the emergency treatment given to her.  The report has further highlighted that the

complainants had financial difficulties and was unable to bear the expenses.  The complainant

no. 3, Mathew Varghese is the clerk of an Advocate. 

6.     It is also made out from the facts on record that on 07.02.2007, the hospitals doctors tried to

remove the ventilator from the patient, but the same had to be reconnected after three hours.  On

08.02.2007, the ventilator was disconnected on the insistence of the complainants.  The patient

was discharged and taken to other hospital where she remained in treatment for another one

week.  From the material on record, especially the report of the DMO, it becomes clear that OP

No. 1 Hospital tried their best to take care of the patient, who was in a critical and terminally ill

stage.  She was put to examination by doctors belonging to all concerned specialists and in fact,

they were able to save her life when her heart and lungs stopped functioning on 3.02.2007.  We,

therefore, tend to agree with the findings of the State Commission that the allegation of medical

negligence against the respondents does not stand proved.  The complaint has been made for the

reason that the complainants had difficulty in meeting the expenditure of the Hospital and they

even approached the Chief Minister for getting a relief from the Distress Relief Fund.  We,

therefore, find no reason to interfere with the well-reasoned order passed by the State

Commission which does not suffer from any irregularity, illegality or jurisdictional error.  The

revision petition is, therefore, ordered to be dismissed and the order of the State Commission

upheld with no order as to costs.  SD/-(K.S. CHAUDHARI J.)PRESIDING MEMBER  SD/-(DR. B.C. GUPTA)MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO. 1449 OF 2012

(From the order dated 28.02.2012 in First Appeal No. 1622/2010 of Gujarat State Consumer Disputes Redressal Commission)

 

Proprietor of Zuber Transport Sohaibbhai Unusbhai Vohra Res. at: Paramount Society, Bungalow No. 62, Polson Dairy Road Anand, Gujarat State

                                       ...  Petitioner

  Versus

Reliance General Insurance Co. First Floor, P.N. Square, Opp. Cafe Coffee Day, Opp. Petrol Pump, Anand, District Anand Gujarat State

                                                 … Respondent

 

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 

APPEARED AT THE TIME OF ARGUMENTS

 

For the Petitioner(s)   Ms. Girija Wadhwa, Advocate

For the Respondent(s)   Mr. Navneet Kumar, Advocate

 

PRONOUNCED ON :       22 nd     JULY     2013 O R D E R 

PER DR. B.C. GUPTA, MEMBER 

This revision petition has been filed under Section 21 of the Consumer Protection Act,

1986 against the order dated 21.02.2012 passed by the Gujarat State Consumer Disputes

Redressal Commission (hereinafter referred as ‘State Commission’) in appeal no. 1622 of 2010,

‘Proprietor of Zuber Transport Vs. Reliance General Insurance Company’ and appeal no. 1778

of 2010, ‘Reliance General Insurance Company Vs. Proprietor of Zuber Transport’ vide which

appeal no. 1622 of 2010 filed by the complainant/petitioner as per Consumer Complaint No. 46

of 2009 before the District Forum was dismissed, while appeal of the opposite party, Reliance

General Insurance Company was accepted and the order passed by the District Forum dated

30.09.2010 was set aside.  The District Forum vide said order had directed the opponent, the

Insurance Company to pay Rs. 1 lakh with 9% interest from 01.03.2009 to the complainant and

also ordered to pay Rs. 5,000/- for mental agony and cost of litigation.

 

2.     Briefly stated, the facts of the case are that the petitioner/complainant carried on business

under the name of Zuber Transport in District Anand, Gujarat having truck no. GJ 9Y6891 since

22.02.2008.  The said truck was insured with the opposite party, Reliance General Insurance

Company vide policy no. 1611782334002087 and premium amount of Rs. 25,777/- was paid by

the complainants.  The policy was valid from 16.01.2008 to 15.01.2009.  It is stated that the said

truck was parked outside the office of Zuber Transport in common plot, when it was stolen early

morning and FIR No. 2/09 dated 01.01.2009 was filed with the police, and the insurance

company was also informed.  The aforesaid truck was later recovered from the area of Bodeli

Police Station, District Vadodara, Gujarat State.  As per the Panchnama prepared by the police,

11 tyres and plates, nuts were stolen which valued at Rs. 1,75,000/-.  The complainant sent the

requisite documents and original bills of Rs. 2,53,908/- to the Insurance Company, but the

company sent a cheque of Rs. 45,441.50/- as full and final settlement.  The complainant returned

the said cheque to the Insurance Company and filed Consumer Complaint in the District

Consumer Forum.  The stand taken by Insurance Company was that under the terms and

conditions of the policy, the tyres of the truck were not covered, and hence the complainant

could not be given compensation for the loss of tyres.  The District Forum vide their order

dated 30.09.2010, allowed the complaint and directed the Insurance Company to pay a sum of

Rs. 1 lakh with 9% interest with effect from 01.03.2009 and also to pay Rs. 5,000/- for mental

agony and cost of litigation.  Against this order, two cross appeals were filed before the State

Commission.  The State Commission dismissed the appeal filed by the complainant for

enhancement of the award as given by the District Forum.  On the other hand, the State

Commission accepted the appeal filed by the opposite party and set aside the order passed by the

District Forum.  It is against this order that the present petition has come up.  

 

3.     Heard the learned counsel for the parties and examined the record.

 

4.     It has been contended by the learned counsel for the petitioner/complainant that the claim

should have been allowed, at least on non-standard basis by the Insurance Company.  The

learned counsel invited our attention to the order passed by Hon’ble Supreme Court of India

in Amalendu Sahu Vs. Oriental Insurance Company as reported in 2010 (2) CACC 103 (SC) in

which it has been stated that in case of violation of conditions of policy, the claim ought to be

settled on non-standard basis.  Further, in another judgment given by the Hon’ble Apex Court in

National Insurance Company Vs. Nitin Khandelwal, as reported in IV (2008) CPJ 1(SC), it has

been stated that in the case of theft of vehicle, breach of condition is not germane.  The Insurance

Company is liable to indemnify the owner of the vehicle when the insurer has obtained

comprehensive policy for the loss caused to the insurer.  The claim should be settled on a non-

standard basis.  The learned counsel argued that the factum of truck being stolen is an admitted

fact and the District Forum has rightly allowed the complaint, though partly.

 

5.     In response, the learned counsel for the respondent vehemently argued that in the instant

case, the truck in question had been recovered, and hence the Insurance Company is liable to pay

for “own damage” only.  Had the truck not been recovered, the Insurance Company was liable to

pay compensation as per the total loss, but in this case, the position was different, as the truck

had been recovered.  There was no deficiency on the part of the Insurance Company, because

they had sent a cheque of Rs. 45,441.50/- to the complainant in accordance with the reports

submitted by the surveyor.  The learned counsel invited our attention to a number of rulings

of the Hon’ble Supreme Court of India in ‘Export Credit Guarantee Corporation of India Ltd. Vs.

Garg Sons International’, as reported in 2013 (1) SCALE 410, Suraj Mal Ram Niwas Oil Mills

(P.) Ltd. Vs. United India Insurance Co. Ltd. and Anr. as reported in (2010) 10 SCC 567 and

Oriental Insurance Company Ltd. Vs. Sony Cheriyan as reported in AIR 1999 SC 3252.  The

learned counsel argued that the insured can not claim anything more than what is covered by the

insurance policy and that the insurance policy between the insurer and the insured represents a

contract concluded between the parties.

 

6.     We have examined the entire matter on record and given a thoughtful consideration to the

arguments advanced before us.  A perusal of the record indicates that the terms and conditions of

the insurance policy in question state as follows:-

        “The company shall not be liable to make any payment in respect of:

          (B) Damages to tyres and tubes unless the vehicle insured is damaged at the

same time in which case the liability of the company shall be limited to 50% of the

cost of replacement and as per the clause (a) of paragraph TMT 21 special

exclusions and compulsory deductible of policy.

          (A) Except in the case of total loss of the vehicle insured the insured shall not

be liable under section of the policy for loss or the damages to lumps, tyres, tubes,

mudguards, bonnet side parts, bumpers and paint work ….”

 

7.     A plain reading of the above terms and conditions indicates that the Insurance Company is

not liable to pay compensation for the loss of tyres and tubes, unless it is a case of total loss of

the vehicle.  It is an admitted fact that in this case, the stolen truck was recovered later, but the

tyres etc. were missing.  There is no force in the contention of the complainant that the claim

could at least be settled on a non-standard basis.  The citations submitted by the complainant do

not provide him any benefit, as this is not a case where there has been a violation of terms and

conditions. It is clearly one of the conditions of the insurance policy that damage of tyres and

tubes is not covered under the policy.  The Insurance Company has, therefore, not committed any

deficiency in disallowing the claim of the complainant for the loss of tyres etc.  It is clear,

therefore, that the State Commission has made a correct appreciation of the facts and

circumstances of the case, and came to the conclusion that the Insurance Company had not

committed any deficiency in service and provided compensation in accordance with the report of

the surveyor.  We do not find any illegality, irregularity or jurisdictional error in the order passed

by the State Commission and hence, the same is ordered to be upheld.  The petition is ordered to

be dismissed, with no order as to costs.

..……………………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER 

..……………………………

(DR. B.C. GUPTA)

MEMBERPSM

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO. 2555 OF 2012 (From the order dated 10.04.2012 in Appeal No.1227 of 2010 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad)

 

M/s. Bajaj Alliaz General Insurance Co. Ltd. Through Shri Ashutosh Singh, Dty Manager 2nd Floor, 1, DLF Industrial Estate, Moti Nagar, New Delhi – 110015

                                    …Petitioner/Opp. Party (OP)

                              VersusMr. K. Eswara Prasad S/o  K. Durgaiah Car Driver R/o H. No. 1-86-33, Near CMR Model High School, Sitarampuram, Bowenpally, Hyderabad

                                                     …Respondent/Complainant

 BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

 

For the Petitioner               :     Ms. Manjusha Wadhwa, Advocate

For the Respondent           :    Mr. D. Abhinav Rao, Advocate

 

PRONOUNCED ON         22 nd   July,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the petitioner/opposite party against the order

dated 10.04.2012 passed by the A.P. State Consumer Disputes Redressal Commission,

Hyderabad (in short, ‘the State Commission’) in Appeal No. 1227 of 2010 – Mr. K. Eswara

Prasad Vs. M/s. Bajaj Allianz General Insurance Co. by which, while allowing appeal, order of

District Forum dismissing complaint was set aside and complaint was allowed. 

2.       Brief facts of the case are that complainant filed complaint before District Forum and

alleged that his car AP-9-TV2927, which was insured by OP/petitioner for a period of one year

commencing from 14.10.2007 to 13.10.2008 for a sum of Rs.2,60,000/- was parked by him on

22.6.2008 in front of his house.  Complainant locked the car and handed over the keys to the

complainant’s neighbour and left for Bangalore due to personal reasons.  He had to stay in

Bangalore for a longer period and when he returned on 4.10.2008, car was found

missing.  Complainant immediately lodged FIR, but car could not be traced. Complainant filed

claim with the OP, but OP vide letter dated 18.3.2009 closed the claim alleging deficiency on the

part of OP.  Complainant filed complaint before District Forum.  OP resisted claim and alleged

that complainant failed to take reasonable steps to safeguard the vehicle and violated Clause IV

of the policy and prayed for dismissal of the complaint.  District Forum after hearing both the

parties dismissed the complaint.  Appeal filed by the complainant was allowed by learned State

Commission vide impugned order against which, this revision petition has been filed. 

3.       Heard learned Counsel for the parties at admission stage and perused record. 

4.       Learned Counsel for the petitioner submitted that since the complainant failed to take

reasonable steps to safeguard the vehicle and there was delay of more than 3 months in lodging

FIR and intimation to Insurance Company, learned District Forum rightly dismissed complaint

and learned State Commission has committed error in allowing appeal; hence, revision petition

be allowed and impugned order be set aside. On the other hand, learned Counsel for the

respondent submitted that order passed by learned State Commission is in accordance with law,

as all reasonable care was taken by the complainant while parking car; hence, revision petition be

dismissed. 

5.       Perusal of record clearly reveals that car was parked by complainant in front of his house

on 22.6.2008 and keys and documents of the car were handed over by the complainant to his

neighbour.  On 4.10.2008 when complainant returned back, he did not find his car and lodged

report with the police and intimated to the Insurance Company. This is not clear when the car

was actually stolen.  Complainant filed his own affidavit before District Forum in which, he

admitted that he enquired from his wife, who remained in the house itself and neighbours and

then lodged complaint at police station. From this statement it becomes clear that during the

period complainant was out of station for more than 3½ months, complainant’s wife was at

home. Complainant also filed affidavit of Alkesh Kumar who has stated in his statement that

complainant was residing in upper portion of his house and  complainant parked his car on

22.6.2008 in front of his house and returned on 4.10.2008 and found that car was missing from

that place. He has also not revealed when car was stolen.  It appears that purposely no date has

been given that when the car was stolen. In such circumstances, it can be presumed that car must

have been stolen long back and complainant’s wife and his neighbour Alkesh Kumar must be

aware about theft of the car.  No report was lodged immediately after theft and report has been

lodged by the complainant only after returning back on 4.10.2008.  It is also not clear when

information to OP regarding theft of car was given by the complainant. Only copy of reminder

dated 21.1.2009 issued by OP to petitioner has been placed on record by which, reply was sought

from complainant regarding reasonable steps to safeguard the vehicle.  It appears that OP was

also not intimated immediately.  In F.A. No. 321 of 2005 – New India Insurance Co. Ltd.

Vs. Trilochan Jane, National Commission dismissed the claim of the complainant on the ground

of delay as theft took place on 8.4.2000, but FIR was lodged on 10.4.2000 and intimation to

Insurance Co. was given on 17.4.2000.  Hon’ble Apex Court in JT 2004 (8) SC 8 – United India

Insurance Co. Ltd. Vs. M/s. Harchand Rai Chandan Lal   observed that delay in intimation to

Insurance Company is fatal.  In the case in hand, apparently there is long delay in lodging FIR

and intimation to Insurance Company about theft of insured car and in such circumstances,

complaint is liable to be dismissed.

 

6.       Complainant’s statement is not believable.  When his wife was staying at home, why keys

of the car will be given to neighbour instead of his wife.  He has not approached District Forum

with clean hands and has purposely suppressed date of theft.

 

7.       Consequently, revision petition is allowed and impugned order dated 10.4.2012 passed by

learned State Commission in Appeal No. 1227 of 2010 – Mr. K. Eswara Prasad Vs. M/s. Bajaj

Allianz General Insurance Co. is set aside and complaint filed by the complainant is dismissed at

admission stage with no order as to cost.

 

                   ..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBER 

k

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 REVISION PETITION NO. 3775 OF 2012

    (Against order dated 01.06.2012 in First Appeal No. 378/2010 of the                 H.P. State Consumer Disputes Redressal Commission, Shimla)                         

Suresh Kumar S/o. Sh. Manohar Lal Sharma, R/o. Village & Post Office Rajgarh, Tehsil Sadar, District Mandi, Himachal Pradesh

                                                      …Petitioner                                                  Versus

                                             National Insurance Company Ltd. Divisional Office, Himland Hotel, Circular Road, Shimla, Himachal Pradesh Through Its Deputy Manager

                               …Respondent 

AND 

REVISION PETITION NO. 3776 OF 2012 (Against order dated 01.06.2012 in First Appeal No. 378/2010 of the

                 H.P. State Consumer Disputes Redressal Commission, Shimla) 

Suresh Kumar S/o. Sh. Manohar Lal Sharma, R/o. Village & Post Office Rajgarh, Tehsil Sadar, District Mandi, Himachal Pradesh

                                                      …Petitioner                                                  Versus

                                             National Insurance Company Ltd. Divisional Office, Himland Hotel, Circular Road, Shimla, Himachal Pradesh Through Its Deputy Manager                               …Respondent  BEFORE:     HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER    HON’BLE DR.S.M.KANTIKAR, MEMBER  For the Petitioner         in both cases     :  Mr. Kunwar Singh, Advocate                                               For the Respondent in both cases         :  Mr. Abhishek Kumar, Advocate

 

PRONOUNCED ON     23 rd   JULY, 2013

ORDER

PER DR. S.M. KANTIKAR

1.   By this order we are disposing of two Revision Petitions No. RP/3775/2012 and

RP/3776/2012 filed by Mr. Suresh Kumar, Complainant against the impugned order

dated 01.06.2012 passed by State Consumer Disputes Redressal Commission, Shimla,

H.P. (in short, ‘State Commission’) in FA/393/2010 filed by National Insurance

Company, OP, was allowed in FA/378/2010 filed by the Complainant for increase in the

awarded amount, was dismissed. As per order passed in FA/393/2010, Appeal was

allowed, which resulted in dismissal of Complaint No.299/2009, dated 07.09.2009

before District Consumer Disputes Redressal Forum, Mandi, Himachal Pradesh (in

short, ‘District Forum’).

2.    The Complainant is owner of a Swaraj Mazda Tipper Vehicle with registration

No.HP33 7445 for carriage of goods. It was insured with the respondent for the sum of

Rs.2,00,000/-, for one year during period from 21.04.2008 to 20.04.2009. Said vehicle

met with an accident on 06.02.2009, and was extensively damaged. Intimation of the

accident was given to the Respondent who assessed the loss through his deputed

surveyor. Claim was repudiated by the Respondent on the ground that the person, who

was driving the vehicle at the time of the accident, did not possess a valid and effective

driving license, in as much as his license was endorsed for driving a ‘light transport

vehicle’, whereas, the vehicle, in question, was a ‘medium goods vehicle’, as its gross

weight was more than 7500 kilograms.

3.   Complainant then filed a complaint before District Forum  seeking a direction to the

Opposite Party to pay the insurance claim and also to pay damages to the tune of

Rs.2,00,000/-. Opposite Party contested the complaint and took the same plea, on which

it had repudiated the claim.

4.   The District Forum allowed the complaint and directed the Opposite Party to pay 75% of

1,98,000/-, the amount assessed by the surveyor, on total loss basis, i.e. Rs.1,48,500/-,

subject to return of salvage and transfer of the registration certificate by the Complainant

in favour of the Opposite Party.

5.   Aggrieved by the order of District Forum two appeals were filed in State Commission.

Complainant filed an appeal No.378/2010 as aggrieved by quantum of insurance claim

was filed and the OP filed an appeal No 393/2010 on the grounds that reason for

repudiation of claim had been established hence seeking of dismissal of complaint.

6.   The State Commission heard counsels of both parties and  perused the evidence on

record like Registration Certificate of vehicle in question , the driving license. Also

referred the Section 2(21) and Section 10(2) of Motor Vehicle Act.

According to section 2(21) of the Motor Vehicles Act, “light motor vehicle” means, a transport vehicle or omni bus, the gross vehicle weight of either of which does not exceed 7500.00 kilograms.

 

In the present case, as per registration certificate, the gross weight of the vehicle, in

question was 8000.00 kilograms. That means, it was not a ‘light motor vehicle’. Person,

who was driving it, was authorized to drive only a light motor vehicle (transport), and

therefore, apparently, he did not have the license to drive the vehicle, in question.  The

State Commission relied upon judgments of this commission Oriental Insurance

Company Ltd. v. Ashok Verghese, III (2009) CPJ 73 (NC) and allowed the appeal filed

by OP i.e.(FA 393/2010) and dismissed appeal FA 378/2010 filed by complainant.

7.   Against the order of State Commission the complainant filed this revision petition.

8.   We heard the counsels for both parties. The counsel for petitioner argued that an

amendment in the Motor Vehicle Act has been carried out in 1994 and therefore the

Section 10(2) has only defined single category of vehicles like Transport Vehicle as per

clause (E) of sub- section (2) of Section 10 and therefore, there will not be any

differentiation with a person to have a license to drive transport vehicle can drive any

type of transport vehicle that is Light Motor Vehicle and Medium or Heavy Motor

Vehicle. Therefore, the Section 10(2) which classifies the vehicles for the purpose of

grant of license does not clarify about Heavy or Medium Motor Vehicle.

9.   The Ld. Counsel for the Complainant brought our attention to the decision of his own

State Commission in FA No. 108/2010 Mubarak Singh Vs. The Oriental Insurance

Company decided on 11.08.2010; as per order the Complainant was entitled to least

75% of the amount as assessed by the Surveyor. We relied upon another judgment of

Hon’ble Apex Court in the case titled Amalendu Sahoo Vs. Oriental Insurance Co. Ltd.

II (2010) CPJ-9 (SC) and held that if a driver holding a driving license to drive a light

transport vehicle but driving a medium goods vehicle, it would be a case of breach of the

terms/conditions and warranties including “limitation as to use” and the insured will be

entitled to 75% of the Amount assessed by the Surveyor. The relevant portion of the

aforesaid portion judgment reads as under:                                “4. Now coming to the alternate submission urged on behalf of the appellant. Suffice it to say in this behalf that this question need not detain us in the light of the decision of the Hon’ble Supreme Court in the case of Amalendu Sahoo Vs. Oriental Insurance Co. ltd. (supra), relied upon by Mr. Thakur in support of his Alternate submission. As according to us, driver holding the driving license whereby he was licensed to drive a L.T.V., whereas he was driving a Medium Goods Vehicle, would be a case of breach of any of the terms/conditions and warranties including limitation as to use. Therefore, we are of the view that the appellant is entitled to Rs. 4,20,750/- being 75% of the amount assessed by the surveyor who is an independent expert appointed by the appropriate authority for assessing the loss. Once this conclusion is arrived at, then there us no escape but for allowing this appeal. Order accordingly.”  

10. We put more reliance upon the judgment of Hon’ble Apex Court Amalendu Sahoo Vs.

Oriental Insurance Co. Ltd. II (2010) CPJ-9 (SC) which prevails over the judgment of

this commission in case Oriental Insurance Company Ltd. v. Ashok Verghese, III (2009)

CPJ 73 (NC). Hence, the State Commission is not justified to give preference to the

judgment passed by this Hon’ble Commission by surpassing the judgment delivered by

the  Hon’ble Apex Court. It was held that  a breach of driving clause in the basis of

guidance/notification issued by the Insurance Company while dealing with own damage

matter has directed to settle the claim of the insured on non-standard claim basis which

means the 75% of the insured amount.

11. On perusal of Surveyor report placed by OP on record clarify that he has assessed

the loss on repair basis at Rs.1,97,268/- on total loss basis at Rs.1,98,000/- and on

the net of salvage basis Rs.1,23,000/-. Since the Insured Declared Value of the

vehicle is Rs.2,00,000/-. In the interest of justice we are of considered view that

claim should be settled on total loss basis at Rs.1,98,000/- as assessed by the

Surveyor; accordingly the complainant is entitled to 75% of this amount.

12. With reference to aforesaid discussion, we set aside the order passed by State

Commission in F.A.393/2010 and F.A.373/2010 and restore the order of District

forum. We allow these revision petitions. No order as to costs. …..…………………………(J. M. MALIK, J.)

                           PRESIDING MEMBER 

     .…..…………………………(Dr. S. M. KANTIKAR)

                MEMBER

MSS/5-6

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.1834 OF 2012 (From the order dated 17.01.2012 in Appeal No.20/2012 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

 

The Manager, Bharti AXA General Insurance Co. Ltd. 1-Floor, Fems Icon, S.No.28, Doddanekkundi Village, K.R. Puram, Bangalore, Pin Code-560037 Through Its Area Manager, (Legal) Bharti AXA General Insurance Co. Ltd. 2nd Floor, Bigjos Tower,A-8, Netaji Subhash Place, Pitampura, New Delhi-110034

                                                 ..…. Petitioner

                                         Versus

B.A. Lokesh Kumar S/o B. Aswatha Raju R/o Door No.1532/2, Raghavendra Nilaya, Opp. To Venkatenhalli, Narasimhaih Choultry, B.B. Road, Chickballapur Town & District Pin Code-562101

                                                  .....  Respondent

 

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER 

For the Petitioners           : Mr. Navneet Kumar, Advocate

For the Respondent         : Mrs. Vijayshanthi Girish, Advocate

PRONOUNCED   ON     25 th   JULY, 2013

                                                  ORDER

PER SURESH CHANDRA, MEMBER

This revision petition is directed against order dated 17.01.2012 passed by the Karnataka

State Consumer Disputes Redressal Commission, Bangalore (“State Commission” in short) in

appeal No.20/2012.  Petitioner is  the opposite party/Insurance Company and the respondent

herein is the original complainant. By its impugned order the State Commission dismissed the

appeal filed by the petitioner/Company and upheld the order dated 24.10.2011 passed by the

Additional District Consumer Disputes Redressal Forum, Seshadripuram, Bangalore wherein the

petitioner company was directed to pay to the respondent/complainant a lumpsum compensation

of Rs.13,31,997/- alongwith interest @ 12% p.a. from 13.6.2011 till realization along with

Rs.2,000/- as cost of litigation.

2.       Briefly stated, the facts of this case, which are relevant for its decision, are that the

respondent/complainant had purchased a new Innova vehicle with temporary registration

No.KA-01/TR-MB-2979 and got it insured under a comprehensive package with insured

declared value (I.D.V) of Rs.11,63,284/- from the petitioner/company  for the period from

25.10.2010 to 24.10.2011. Admittedly the validity of the temporary registration certificate of the

vehicle expired on 23.11.2010 after which the respondent/complainant did not obtain a

registration number. On 9.6.2011, the complainant sent this vehicle to Dharamasthala on a

pilgrimage trip for the conveyance of his family members and relatives and on the way

toDharmsasthala when the vehicle was proceeding on NH-48, it met with an accident and in that

it got toppled and fell into a road side ditch in a topsy turvey position. The respondent intimated

about the accident and the damage to the vehicle on account of this accident to the

petitioner/insurance company. It is alleged that after inspection of the damaged vehicle, damage

to the tune of around Rs.13,16,997/- was assessed besides expenditure of about Rs.15,000/-

incurred by the respondent towards lifting and shifting charges. The petitioner-company after

considering the survey report and other relevant documents repudiated the claim of the

respondent vide its letter dated 30.6.2011 stating that the vehicle in question did not have a

permanent registration number and thus there was blatant violation of Section 39 of the Motor

Vehicles Act, 1988. It was also indicated in its letter that the temporary registration of the vehicle

had already expired on 23.11.2010 and because of this at the time of the accident the vehicle did

not have either a valid temporary registration or a permanent registration. Aggrieved by the

repudiation of his claim, the respondent filed a consumer complaint bearing No.1303/2011

before the District Consumer Forum seeking compensation of Rs.13,16,997/- alongwith other

reliefs. The District Forum vide its order dated 24.10.2011 allowed the complaint in terms of the

aforesaid directions against which the petitioner filed an appeal before the State Commission

which came to be dismissed by the impugned order. Thus the petitioner has approached this

Commission challenging the concurrent orders of the fora below through the present revision

petition.

3.       We have heard learned Shri Navneet Kumar, counsel for the petitioner and

learned Mrs.Vijayshanthi Girish, counsel for the respondent. While admitting the validity of the

insurance policy under a comprehensive cover and the occurrence of the accident in question

involving the vehicle in dispute, learned counsel for the petitioner submitted that the forabelow

had failed to appreciate that the temporary registration of the vehicle had expired on 23.11.2010

itself and the respondent did not get the vehicle permanently registration and thus there was clear

violation of the policy condition and the provisions of the Motor Vehicles Act, 1988. He

submitted that it was made abundantly clear to the respondent by the petitioner company while

repudiating his claim that since the vehicle did not have valid registration number on the date of

the accident, it was violation of a mandatory requirement of law and also breach of contractual

obligations by the respondent, the claim submitted by him could not be allowed. Later on, when

the respondent filed the consumer complaint before the consumer forum, the petitioner-company

took the same plea in addition to other submissions in the written version filed by it before the

District Forum and reiterated the same before the State Commission while challenging the order

of the District Forum. He submitted that in spite of this, both the fora below have rejected this

plea while allowing the complaint by their concurrent finding as confirmed by the impugned

order. Besides referring to the provisions of Section 39 of the Motor Vehicles Act, 1988, learned

counsel has relied on two judgments of this Commission in the cases of Kaushalendra Kumar

Mishra vs. The Oriental Insurance Co. Ltd. (Order dated 16.2.2012 in R.P.

No.4043/2008) and  NiranjanKumar Yadav vs. National Insurance Co. Ltd. (Order dated

29.3.2011 in R.P. No.2926/2010). He summed up his arguments by submitting that since the

crucial point regarding the expiry of the temporary registration of the vehicle before the date of

the accident and non-issuance of a permanent registration to the vehicle on the date of the

accident are not under dispute, the impugned orders cannot be sustained and are liable to be set

aside as being violative of the express provisions of law. Per contra, learned counsel for

respondent/complainant has submitted that there is no merit in the revision petition and that there

is no case for interference with the  concurrent finding of the two Fora below under section 21(b)

of the Consumer Protection Act, 1986 and hence the revision petition should be dismissed.

4.       Having considered the submissions of the parties, the short point that has arisen for our

decision is as to whether the two Fora below were right in returning their concurrent finding

in favour of the respondent in spite of the undisputed fact that the vehicle in dispute did not have

a valid registration number on the date of the accident and hence was being used in violation of

the law and condition of the insurance policy. In this context, we may note that that registration

of the vehicle is a mandatory requirement of the law and the relevant provisions as contained in

Section 39 of the Motor Vehicles Act, 1988 may be reproduced as under: - 

“39. Necessity for registration. – No person shall drive any motor

vehicle and no owner of a motor vehicle shall cause or permit the vehicle

to be driven in any public place or in any other place unless the vehicle is

registered in accordance with this Chapter and the certificate of

registration of the vehicle has not been suspended or cancelled and the

vehicle carries a registration mark displayed in the prescribed manner:

Provided that nothing in this section shall apply to a motor vehicle

in possession of a dealer to such conditions as may be prescribed by the

Central Government.”

 

 5.      In view of the aforesaid requirement of law, it is clear that both the fora below

gravely erred in ignoring and rejecting the plea taken by the petitioner while returning their

concurrent finding accepting the complaint. They should have appreciated that the use of the

vehicle in question was in violation of the law itself and hence would take it beyond the

protection of the insurance policy. We have therefore no hesitation in setting aside the impugned

order and accepting the revision petition. The present case is squarely covered by the ratio of the

two judgments relied upon by the counsel for the petitioner. We, therefore, allow the revision

petition and set aside the impugned order leaving the parties to bear their own cost.  ……………Sd/-……..………..

     (AJIT BHARIHOKE, J.)

      PRESIDING MEMBER

                                                           

  ……………Sd/-….……………

(SURESH CHANDRA)

MEMBERRaj/

 

 

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI          REVISION PETITION NO.   2680 of 2012 (From the order dated 1.05.2012 in Appeal No.357 of 2011 of the State Consumer Disputes Redressal Commission, U.T. Chandigarh)                 1. Sh. Avtar Singh, S/o Late Dharam Singh2. Sh. Gurlal Singh, S/o Late Dharam Singh3. Smt. Malkit Kaur, W/o Late Dharam Singh All R/o of: No. 80, Village Makhewala Tehsil Sardulgarh, District Mansa, Punjab                                                                       … Petitioners/Complainants                                                                  

                                                VersusSBI Life Insurance Co. Ltd. SCO No. 127-128, 1st Floor, Sector 17C Chandigarh,Through its Branch Manager

… Respondent/Opp. Party (OP)  

BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER

 For the Petitioners     :     Mr. Shakti K. Pattanaik, AdvocateFor the Respondent :       Mr. Rakesh Malhotra, Advocate                            

PRONOUNCED   ON     2 nd   August,     2013 O R D E R  

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER          

This revision petition has been filed by the Petitioners/Complainants against the

impugned order dated 1.05.2012 passed by the State Consumer DisputesRedressal Commission,

U.T. Chandigarh (in short, ‘the State Commission’) in Appeal No. 357 of 2011 – The SBI Life

Ins. Co. Ltd. Vs Sh. Avtar Singh & Ors. by which, while allowing appeal, order of District

Forum allowing complaint was set aside. 

2.       Brief facts of the case are that deceased Dharam Singh, father of complainants/petitioners

purchased insurance policy from OP/respondents and paid first premium of Rs.15,000/- on

9.9.2008.  Deceased filled proposal form while subscribing for aforesaid insurance

policy.  Dharam Singh died on 9.10.2008.  When complainants came to know about the policy,

they approached OP for payment of amount, but as claim was repudiated, complainants filed

complaint alleging deficiency on the part of OPs.  OP-1 contested complaint and submitted that,

as there was no concluded contract between Dharma Singh and OP, merely by deposit of

premium amount along with proposal form, did not automatically result into the issuance of an

insurance policy. It was further alleged that on 15.9.2008, Dharam Singh was asked to comply

with some requirements, but he failed to comply with the requirements.  Denying deficiency on

the part of OPs, prayed for dismissal of complaint. OP 2 submitted that complaint may be

dismissed for misjoinder of parties, as OP 2 was only operating SB Salary Account

of Dharam Singh.  District Forum after hearing both the parties, allowed complaint and directed

OP to pay Rs.2,02,500/-.  Appeal filed by the OP was allowed by learned State Commission vide

impugned order against which, this revision petition has been filed.

 

3.       Heard learned Counsel for the parties at admission stage and perused record.

 

4.       Learned Counsel for the petitioner submitted that as soon as premium was encashed by

OP, insurance policy came into force and OP 1 committed deficiency in repudiating claim and

learned State Commission committed error in allowing appeal; hence, revision petition be

allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent

submitted that order passed by learned State Commission is in accordance with law, which does

not call for any interference; hence, revision petition be dismissed.

 

5.       Perusal of record clearly reveals that Dharam Singh submitted proposal form for obtaining

life insurance policy on 9.9.2008 along with premium of Rs.15,000/-. On 15.9.2008, OP asked

petitioner to comply with certain requirements, which were not complied with and on

9.10.2008 Dharam Singh died.  Thus, it becomes clear that contact of insurance was not

concluded between Dharam Singh and OP.  Merely by encashing cheque of premium, insurance

contract does not come into force, as held by this Commission in [I (2011) CPJ 60 (NC)] – LIC

of India Vs. Bhoomikaben   M.   Modi   &   Ors ., [2009 STPL (CL) 479 (NC)] – Elsa Tony

Phillip Vs. Manager, LIC of India and   Ors . and [I (2010 CPJ 137 (NC)]

– Kolla   Vijaya   Laxmi  Vs. Life Insurance Corporation of India &   Anr .  This Commission in Elsa

Tony Phillip case (Supra) in para 3 & 4 observed as under:

“3.     Thrust of argument advanced by Shri T. Harish Kumar for the appellant is that along with the proposal first premium was paid by Tony Phillip by issuing a cheque of Rs.1,662 which was got encashed by the Insurance Co. and, thus a concluded contract came into existence between the parties and the order under appeal was thus, legally erroneous.  As may be seen from the order under challenge, the State Commission in reaching the conclusion that concluded contract had come into existence, has heavily relied the decision in Life Insurance Corporation of India V. RajaVasireddy Komalavalli Kamba and Ors. ((1984) 2 SCC 719.)  Omitting immaterial portion, para Nos. 14 & 15 of this decision at pages 726 & 727 of the report read thus: 

“14…The mere receipt and retention of premium until after the death of the applicant or the mere preparation of the policy documents is not acceptance.  Acceptance must be signified by some act or acts agreed on by the parties or from which the law raises a presumption of acceptance.  See in this connection the statement of law in Corpus Juris Secundum, Vol. XLIV, wherein it has been stated as:

 The mere receipt and retention of premiums until after the death of applicant does not give rise to a contract, although the circumstances may be such that approval could be inferred from retention of the premium. The mere execution of the policy is not an acceptance; an acceptance, to be complete, must be communicated to the offer or, either directly, or by some definite act, such as placing the contract in the mail. The test is not

intention alone. When the application so requires, the acceptance must be evidenced by the signature of one of the company’s executive officers.  

 15.     Though in certain human relationships silence to a proposal might convey acceptance but in the case of insurance proposal, silence does not denote consent and no binding contract arises until the person to whom an offer is made says or does something to signify his acceptance.  Mere delay in giving an answer cannot be construed as an acceptance, as, prima facie, acceptance must be communicated to the offeror.  The general rule is that the contract of insurance will be concluded only when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making the offer.  Whether the final acceptance is that of the assured or insurers, however, depends simply on the way in which negotiations for an insurance have progressed. See in this connection statement of law in MacGillivray & Parkington on Insurance Law, Seventh Edition, page 94, paragraph 215”.

 4.       Admittedly, neither acceptance of the proposal was communicated

nor policy was issued to Tony Phillip by the respondent-Insurance Co. Considering the ratio of the said decision of Supreme Court, mere encashment of cheque, given towards first premium, is not enough to conclude that a contract had come into existence between the parties.  Decision in LIC & Ors. v. Smt. Raksha Devi (R.P. No. 702 of 2003, decided on 20.10.2005) is of no help to the appellant.  Impugned order, thus, does not suffer from any legal infirmity and the appeal deserves to be dismissed being without merit”.   

  6.       In the light of aforesaid discussion, we do not find any illegality, irregularity or

jurisdictional error in the impugned order and revision petition is liable to be dismissed.

 

7.       Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to costs.

          ..………………Sd/-……………( K.S. CHAUDHARI, J) PRESIDING MEMBER            ..……………Sd/-………………( DR. B.C. GUPTA ) MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI          REVISION PETITION NO.   3438 of 2012 (From the order dated 06.06.2012 in Appeal No.2660 of 2008 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)                 1. The Life Insurance Corporation of India Shahpur Branch Office Yadgir Road, Shahpur Through its Branch Manager 2.  The Life Insurance Corporation of India Divisional Office PB No. 43 Satkacheri Road, Raichur Through its Divisional Manager 3.  The Life Insurance Corporation of India DO 1, Jeevan Prakash, JC Road Bangalore – 560002 Through Shri Balihar Singh Asstt. Secretary (Legal) LIC of India (CO Legal Cell) Delhi H-39 (First Floor) New Asiatic Bldg. Connaught Circus New Delhi

                                                        … Petitioners/Opp. Parties (OP)                                                                  

                                                VersusSmt. Neelamma W/O Sri Sidana Shivputra Tumbigi R/o UKP Camp at Post Geeratagi Taluk Jewargi, District Gulbarga

… Respondent/Complainant  

BEFORE 

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER

 For the Petitioner     :       Mr. Pankul Nagpal, Advocate                                     For the Respondent :       Mr. C.B. Gururaj, Advocate                            

PRONOUNCED 2 nd   August,     2013 O R D E R  

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER          

This revision petition has been filed by the Petitioner/OP against the impugned order dated 06.06.2012 passed by the Karnataka State Consumer DisputesRedressal Commission, Bangalore (in short, ‘the State Commission’) in Appeal No.2660 of 2008 – LIC & Ors Vs Neelamma by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

 2.       Brief facts of the case are that complainant/respondent purchased endowment policy on 27.2.2006.  The premium was payable quarterly.  Insured paid premiumupto November, 2006, but did not pay premium payable in the month of February, 2007. OP issued letter to the insured to pay the premium payable in the month of May, 2007 stating that grace period is upto 27.6.2007 in respect of premium payable in the month of May, 2007. Insured died on 12.5.2007.  Complainant submitted claim which was repudiated by OP/petitioner on the ground that policy lapsed on account of non-payment of premium of February, 2007 and prayed for dismissal of complaint.  Learned District Forum after hearing both the parties, allowed complaint by order dated 18.10.2008. Learned State Commission vide order dated 24.2.2009 in Appeal No. 2660 of 2008, while allowing appeal, set aside order of District Forum. Complainant filed Writ Petition No. 81794 of 2009 before High  Court of Karnataka and Hon’ble Court by order dated 4.8.2010 allowed writ petition and set aside order of State Commission and directed State Commission to dispose of the appeal afresh in accordance with law.  Learned State Commission vide impugned order dismissed appeal and confirmed order of District Forum against which, this revision petition has been filed.3.       Heard learned Counsel for the parties and perused record.

4.       Learned Counsel for the petitioner submitted that quarterly premium which was to be paid by 27.2.2006, was not paid and policy lapsed on 27.3.2007 and as insured died on 12.5.2007, petitioner has not committed any deficiency in repudiating the claim, but learned State Commission has committed error in dismissing appeal and earned District Forum committed error in allowing complaint; hence, revision petition be allowed and impugned order be set aside.  On the other hand, learned Counsel for the respondent submitted that for quarterly premium due in May, 2007, notice depicted grace period upto 27.6.2007 and insured died on 12.5.2007. Complainant was entitled to claim and order passed by learned State Commission is in accordance with law which does not call for any interference; hence, revision petition be dismissed.5.       It is admitted case of the parties that policy was obtained on 27.2.2006 and premium was to be paid quarterly.  It is also admitted case that payment due on 27.2.2007 was not paid and insured died on 12.5.2007.6.       On account of non-payment of premium due on 27.2.2007, policy lapsed on 27.3.2007.  Learned State Commission has upheld order of District Forum on the basis of intimation letter dated 3.5.2007 giving grace period for payment of due premium upto 27.6.2007.  Perusal of letter clearly reveals that this grace period was applicable for premium to be paid by 27.5.2007. In this letter itself date for last due premium has been shown as 27.2.2007.  Receipt No.2071912 clearly depicts that petitioner deposited earlier premium also with late fee and in that receipt also next premium due has been shown in February, 2007.  Perusal of Receipt No.2583588 also reveals that insured made payment of premium with late fee.  Thus, it becomes clear that insured always made payment along with late fee and he was aware that next payment of premium was to be paid in February, 2007, but he did pay and in such circumstances, policy lapsed on 27.3.2007,  It is admitted case that insured died on 12.5.2007 meaning thereby after lapse of policy and in such circumstances, OP/petitioner has not committed any deficiency in repudiating the claim and learned State Commission has committed error in dismissing appeal and learned District forum committed error in allowing complaint. 7.       Consequently, the revision petition is allowed and impugned order dated 06.06.2012 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore in Appeal No.2660 of 2008 – LIC & Ors Vs Neelamma is set aside and complaint filed by the complainant/respondent is dismissed with no order as to costs.

           ..………………Sd/-……………( K.S. CHAUDHARI, J) PRESIDING MEMBER            ..……………Sd/-………………( DR. B.C. GUPTA ) MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

 REVISION PETITION No. 2191 of 2013

(From the order dated 19.01.2011 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in First Appeal no. 1987 of 2004)

 

Paltu Ram Son of Shri Munshi Ram Resident of Village Dundahera Tehsil and District Gurgaon

Petitioner

  Versus

United India Insurance Co. Ltd., Kanchanjunga Building Barakhamba Road Cannaught Place New Delhi

Respondent

 BEFORE:

          HON’BLE MR JUSTICE V B GUPTA            PRESIDING MEMBER

          HON’BLE MRS REKHA GUPTA                                                 MEMBER

 

For the Petitioner                 Mr Mandeep Singh Kapoor, Advocate

Pronounced on       5 th   August     2013

ORDER REKHA GUPTA

            Revision petition no. 2191 of 2013 has been filed challenging the judgment dated

19.01.2011 coupled with the order dated 07.10.2011 passed by the Haryana State Consumer

Disputes Redressal Commission, Panchkula (‘the State Commission’) in appeal no. 1987 of

2004.

        The brief facts of the case as per the petitioner/ complainant are that the petitioner had

purchased a new brand Swaraj Mazda from M/s Swaraj Mazda Ltd., Pune for a sum of

Rs.5,13,216/- on 28.03.2001, the body and chasis of the Swaraj Mazda was prepared by Khan

Brothers and Body Repairing KapasheraDelhi for a sum of Rs.70,000/-. The above said vehicle

was got financed from M/s Interstate Finance Ltd.,/ City Corporation Finance India, Delhi. The

above said vehicle bearing Engine no. S/CBN 044677, Chasiss no NBW EL 4GN 0052027 was

fully insured by the respondent against a value of Rs.5,50,000/- vide cover note no. 216354 dated

30.03.2001. It was a comprehensive insurance policy. On purchasing the above said vehicle, the

petitioner entered into an agreement with M/s Speedage Express Cargo a division of ARC India

Ltd.  On 01.04.2011 and attached the vehicle in question bearing registration no. HR 55 – 8007

with effect from 01.04.2001 to 31.03.2003.

        The above said vehicle met with an accident on 07/08.03.2002 in the area of

PS Niwari District Ghaziabad and FIR no. 57/ 2002 dated 08.03.2002 was lodged in

PS Niwari District, Ghaziabad (UP). The above said vehicle no. HR 55 – 8007 was damaged and

the loss of damage was assessed as total loss. Just after the accident, information was sent to the

respondent who appointed its Surveyor - Shri Darshan Singh Arora who inspected the vehicle on

11/12/03/2002 at Modi Nagar, District Ghaziabad and again Shri K R Arora, Surveyor has also

assessed the loss of damage of vehicle at the instance of the respondent. Both the surveyors have

assessed total loss of the vehicle.

        However, the respondent has delayed the payment of the total loss to the tune of

Rs.5,50,000/-. The application in respect of the payment of loss was also given on 04.04.2002

and again verbally so many times, but the respondent has not paid any heed towards the request

of the petitioner rather delayed the matter on one pretext or the other and has not settled the

claim of petitioner till today.

        The petitioner also informed the respondent about the contract/ agreement with

M/ Speedage Express Cargo and the respondent had full knowledge about the finance of the

vehicle in question, but the respondent intentionally, illegally and with ulterior motive without

any reasons had not settled the claim/ losses to the vehicle and has not paid any penny to the

petitioner or the financier till today.

        The respondent/ opposite party stated in their reply before the District Forum that the

petitioner, as per his admission in his complaint, has already filed a claim petition before the

Motor Accident Claim Tribunal, Gurgaon for recovery in respect of damages to

his Swaraj Mazda bearing no. HR 55 – 8007 in the very accident for which the present complaint

is filed. Therefore, the present complaint is not legally maintainable. The petitioner cannot file

two petitions simultaneously for the recovery of damages arising out of one accident. Therefore,

the present complaint is liable to be dismissed with costs.

        The complaint is pre-mature. The claim of the petitioner had already been got surveyed and

assessed. Vide letter dated 21.08.2002 was informed that the surveyor had assessed the loss on

total loss basis to the tune of Rs.3,85,000/- subject to the terms and conditions of the policy.

However, the final settlement is still pending because the petitioner has not supplied the spot

survey report of Mr Darshan Singh Arora, from who he had got the vehicle inspected allegedly at

the spot (which is an essential document to the exact reasons of the damages) in spite of various

reminders and lastly, especially was called upon vide registered letter dated 09.04.2003 to supply

the same. But till to date, the petitioner has not supplied the required spot survey report and

rather has filed the present complaint, unnecessarily, without having any cause of action for the

same.

        Soon after the receipt of information about the damages to the insured Swaraj Mazda

bearing registration no. HR 55 – 8007 registered on 05.04.2001 in an accident which allegedly

took place on 08.03.2002, K R Arora & Co, Government approved Surveyors and Loss

Assessors and Valuers was appointed to assess the loss. The surveyor had contacted and

discussed the loss and manner of assessment with the petitioner in the process of assessment of

the loss. The market was also surveyor in order to know the market value of Swaraj Mazda,

bearing registration no. HR 55 – 8007, registered on 05.04.2001 on the date of loss i.e.,

08.03.202 from the dealers who deals in sales/ purchase of these types of vehicles in the open

markets. The market value of the said Swaraj Mazda was found to be Rs.3,85,000/- in the open

market on the date of loss i.e., 08.03.2002. It is submitted that as per the insurance policy’s terms

and conditions, the market value or the insured’s estimated value of the vehicle whichever is less

is payable. In these circumstances, subject to the terms and conditions of the insurance policy,

the loss was assessed to the tune of Rs.3,85,000/- less excess clause of Rs.1,500/- and return of

the damage vehicle to the Co. and transfer of registration in the name of the Co. by the surveyor.

This was informed to the petitioner. However, report of spot survey got conducted by the

petitioner through Darshan Singh Arora was not supplied in spite of various reminders in spite of

registered letter dated 09.04.2003 as stated above. Therefore, the final settlement is still pending

due to delay on the part of the petitioner. But the petitioner instead of complying with the

requirement, has unnecessarily, filed the present complaint. The respondent is still ready to settle

the claim subject to the terms and condition of the insurance policy on the receipt of the spot

survey report, referred above, and the other usual requirements. Thus, the respondent is in the

process of processing the claim and the same is pending for completion of the legal and

mandatory formalities on the part of the petitioner. For this reason also, the complaint is not

maintainable and is liable to be dismissed at this every stage.

        The District Consumer Disputes Redressal Forum, Gurgaon (‘the District Forum’) after

considering all the facts and circumstances of the case ordered that“after deducting 10% of the

insured amount, the respondent is directed to pay Rs.4,95,000/- to the petitioner along with

interest at the rate of 9% per annum which is to be calculated after three months of the accident

till the date of payment subject to the terms and conditions of the company. The compliance of

this order be made within one month after the receipt of the copy of this order. No costs”.

        Aggrieved by the order of the District Forum, the respondent filed an appeal before the

State Commission. The State Commission came to the conclusion that ‘the undisputed facts are

that the new vehicle was purchased for Rs.5,13,216/- on 28.03.2001 got insured the vehicle for

Rs.5,50,000/- and charged the premium. The IDV could not be more than the cost of the new

vehicle. Vehicle having met with an accident on 07/08.03.2002 was also not disputed. How and

on what basis the surveyor assessed the loss of Rs.3,85,000/- is not coming forth. The vehicle

being less than one year old, the depreciation could only be to the extent of 10% of the cost of

the vehicle.

        Therefore, we feel it appropriate to modify the award by deducting 10% of the value being

depreciated value of vehicle which comes to Rs.5,13,216/-  – Rs.51,321/- = Rs.4,61,895/- along

with 6% interest.

        With this modification this appeal stands disposed of”.

        The respondent filed a miscellaneous application seeking modification in the operative part

of the order that was passed on 19.01.2011. The State Commission vide its order dated

07.10.2011 modified the order stating that ‘the appellant has sought modification that in the

operative part of the order though the amount to be paid to the complainant has been quantified,

however, by inadvertence, it has not been mentioned that this shall be on transfer of the vehicle

and return of salvage. Though in the order, it has been mentioned that this shall be subject to

terms and conditions of the company, however the modification is sought is only in the shape of

clarification. Application for modification is allowed. In the operative part after the end of the

paragraph the following shall be added “that the payment of amount shall be upon return of

salvage and transfer of vehicle in favour of insurance company”.

        Hence, this present revision petition.

        The main grounds for the revision petition as given by the petitioner are as under:

         The State Commission has not examined the contract of insurance between the

parties. The State Commission although notices the purchase price of the vehicle as

Rs.5,13,216/- however failed to consider the amount spent by the petitioner on making

the vehicle as road worthy. It was Rs.70,000/- which was spent by the petitioner to make

the vehicle road worthy. The coverage accordingly was obtained by the petitioner for

Rs.5,50,000/-. The total value although on the date of insurance was Rs.5,70,000/-. The

State Commission has wrongly taken the value of insured vehicle as Rs.5,13,261/-

instead of Rs.5,50,000/-. The depreciation or deduction of 10% was required to be made

from Rs.5,50,000/- and not from Rs.5,13,216/- as ordered by the State Commission.

         The State Commission committed grave error by reducing the interest from 9% to

6%. There is no infirmity in the interest of 9% as awarded by the District Forum.

         The State Commission again committed grave error by modifying the order on

07.10.2011 without giving petitioner any notice of the same. The State Commission

failed to take into consideration that the vehicle was registered in 2001 and the estimated

life of the vehicle was 10 years. The State Commission failed to take into consideration

the fact that on the date i.e., 07.10.2011 when the directions was passed to get the vehicle

transferred it was not possible for the petitioner to get the vehicle transferred as the life of

the vehicle has already expired. There is no provision in the motor vehicle Rules which

could have allowed the transfer of the vehicle in favour of the respondent on the said ate.

Moreover, the vehicle which was total loss on the date of accident in 2002 has totally

become wreck and without any recognition. It was not possible for the petitioner to

assemble the said salvage as such the State Commission has committed further error by

directing return of the salvage which was not in existence on the date of passing of its

order. It was totally over looked that the vehicle was total loss.

Along with revision petition the petitioner has filed an application for condonation of

delay of 859 days. However, as per the office report there is a delay of 476 days. The reasons

given for the delay are as follows:

*      The petitioner although deputed a counsel for defending his case before the State

Commission however no information about the status of the case was ever given to the

petitioner. The petitioner was way back informed that the appeal has been admitted and it shall

come up in due course. The petitioner never received any notice of appearance thereafter. The

petitioner in March 2013 when made enquiries about the case was apprised of the fact that the

appeal has been decided way back. The petitioner thereafter obtained the copies of the orders.

Since the petitioner only in March 2013 came to know about the disposal of the appeal as such

the delay has occurred. The petitioner also faced difficulty in getting all the documents which

were required for preferring the revision. Sometime was also lost in getting the documents

collected.

We have heard the learned counsel for the petitioner and have also carefully gone through

the records.

        It is seen from the application that no specific dates have been given regarding the exact

date and the manner in which the knowledge had come to the petitioner. No date has also been

given regarding when in March 2013 the petitioner came to know about the disposal of the

appeal. Though the petitioner has blamed his advocate for the delay in defending his case before

the State Commission, at the time of filing of the application, he had made no complaint

regarding deficiency of service with regard to the counsel either with the Bar Council or any

Consumer Court. It was only during the hearing of the case in the National Forum, that a

complaint was filed with the Bar Council of Chandigarh on 31st July 2013.

        In Banshi vs Lakshmi Narain – 1993 (1) RLR 68, it was held that reason for delay was

sought to be explained on the ground that the Counsel did not inform the appellant in time, was

not accepted since it was primarily the duty of the party himself to have gone to lawyer’s office

and enquired about the case, especially when the case was regarding deposit of arrears of rent.

The statue also prescribes a time bound programme regarding the deposit to be made.

        In Jaswant Singh vs Assistant Registrar, Co-operative Societies – 200 (3) Punj, L R 83, it

was observed that cause of delay was that the counsel of the appellant in the lower Court had

told them that there was no need of their coming to Court and they would be informed of the

result, as and when the decision comes, was held to be a story which cannot be believed.

        In Bhandari Dass vs Sushila, 1997 (2) Raj LW 845, it was held that accusing the lawyer that

he did not inform the client about the progress of the case nor did he send any letter, was

disbelieved while rejecting an application to condone delay.

With regard to limitation it is well settled that ‘sufficient cause’ for condoning the delay in each case is a question of fact.

The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial

Development Authority, IV (2011) CPJ 63 (SC), has held that:

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”. 

In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of

2006), decided by the Apex Court on 08.07.2010 it was held:                    

                         “The party should show that besides acting bona                         fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”.

In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed:

 

“We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

       

The petitioner has failed to adequately explain the day to day delay or give ‘sufficient

cause’ for condoning the delay of 476 days.

In view of the above, the revision petition is dismissed being time barred by limitation

with cost of Rs.10,000/- (Rupees ten thousand only).

        Petitioner is directed to deposit the cost by way of demand draft in the name of ‘Consumer

Legal Aid Account’ of this Commission within four weeks from today. In case the petitioner

fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @

9% per annum till realisation.

        List on 6th September 2013 for compliance.

Sd/-

..………………………………

[ V B Gupta, J.]

 

Sd/-

………………………………..

[Rekha Gupta]

Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO. 292 OF 2013(From the order dated 01.11.2012 in Appeal No.251 of 2012 of the State Consumer Disputes Redressal Commission,  U.T., Chandigarh) Bajaj Allianz General Insurance Co. Ltd. 1, DLF Industrial Plot, IInd Floor Moti Nagar, New Delhi – 110015

                                      … Petitioner/ Opp. Party (OP)     Versus1. Nitin Verma S/o Sh. Ashwani Verma R/o H. No. 5486, Sector 38 (West) Chandigarh (Son, Assignee, legal heir of deceased insured) 2.Ashwani Verma S/o Dr. Ram Gopal Verma R/o H. No. 5486, Sector 38 (West)   Chandigarh (Husband, legal heir of deceased insured)

… Respondents/Complainants BEFORE     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner           :        Ms. Suman, AdvocateFor the Respondent-2    :        Mr. Ashwani Verma, In person 

PRONOUNCED ON         5 th   August,     2013  O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER          

            This revision petition has been filed by the petitioner/OP against the order dated

01.11.2012 passed by the State Consumer Disputes Redressal Commission, U.T., Chandigarh (in

short, ‘the State Commission’) in Appeal No. 251 of 2012  – Bajaj Allianz General Ins. Co. Ltd.

Vs. Nitin Verma & Anr. by which, while dismissing appeal, order of District Forum allowing

complaint was upheld. 

2.       Brief facts of the case are that Smt. Suman Verma, mother of Complainant

No.1/Respondent no.1 and wife of Complainant No. 2/Respondent No.2 took a Travel Care

Insurance Policy from OP/petitioner on 15.4.2011 for the period from 22.4.2011 to

20.6.2011.  Smt. Suman Verma died on 28.4.2011 in USA.  Claim was filed before OP, which

was repudiated on the ground of pre-existing disease. Alleging deficiency on the part of

Petitioner/OP, Respondents/complainants filed complaint before District Forum. OP contested

complaint and submitted that claim was repudiated on the ground of suppression of pre-existing

disease; hence, complaint may be dismissed.  Learned District Forum after hearing both the

parties, allowed complaint and directed to pay $10659 (US) in the Indian Currency Value to be

calculated on the basis of May, 2011 rates along with Rs.30,000/- as compensation and

Rs.15,000/- as litigation cost. It was further directed that order may be complied within a period

of 30 days failing which, OP will be liable to pay aforesaid amount along with 12% p.a. interest

from 2.6.2011, i.e. the date of repudiation of the claim till payment.  Appeal filed by the

petitioner was dismissed by learned State Commission vide impugned order against which, this

revision petition has been filed. 

3.       Heard learned Counsel for the petitioner and Respondent no. 2 in person. 

4.       Learned Counsel for the petitioner submits that she presses revision petition only to the

extent of awarding penal interest and does not press other prayers, as payment has already been

made to the respondent.  Learned  Counsel for the petitioner submitted that after

awarding  compensation, learned District Forum has committed error in further allowing 12%

p.a. interest;  hence, revision petition be accepted to this extent.  On the other hand, Respondent

No. 2 submitted that order passed by learned State Commission and District Forum are in

accordance with law; hence, revision petition be dismissed. 

5.       Perusal of order of District Forum reveals that 12% p.a. interest has been awarded from the

date of repudiation of claim till its actual payment,  only if order of District Forum for making

payment is not complied with by the petitioner within a period of 30 days. In such circumstances,

award of interest cannot be said to be penal interest, but it appears that interest has been awarded

only for due compliance of the order within a period of 30 days.  In such circumstances, grant of

interest cannot be termed as penal interest.  No doubt, interest has been awarded from the date of

repudiation of the claim, whereas interest should have been allowed from the date of order of

District Forum because 30 days period was given for compliance of the order of District Forum

and interest has been awarded only on failure to comply with the directions within 30 days. In

such circumstances, revision is liable to be allowed partly. 

6.       Consequently, revision petition filed by the petitioner is allowed in part and impugned

order dated 01.11.2012 passed by the State Consumer Disputes Redressal Commission, U.T.,

Chandigarh in Appeal No. 251 of 2012 – Bajaj Allianz General Ins. Co. Ltd. Vs. Nitin Verma &

Anr. and order of District Forum dated 27.6.2012 passed in CC No. 652 of 2011 is modified and

date 2.6.2011 mentioned in the order of District Forum is modified by the date 27.6.2012 and

revision petition stands dismissed for rest of the reliefs claimed in revision petition.  There shall

be no order as to costs.                                                                                                            ..………………Sd/-……………

( K.S. CHAUDHARI, J) PRESIDING MEMBER  ..…………Sd/-…………………( DR. B.C. GUPTA ) MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO.   229 OF 2013 (From the order dated 10.10.2012 in Appeal No.1154 of 2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula) Jilay Singh  S/o Shri Ganga Ram R/o 3C/34, NIT Faridabad (Haryana)

                                       … Petitioner/Complainant                                       Versus1. National Insurance Company Ltd. Regd. Office at 3 Middleton Street Kolkata – 7000712.Divisional Manager National Insurance Co. Ltd. Branch Office 15/C1 & 7, Neelam

Chowk, NIT Faridabad – 121 001 (Haryana)3.Citi Corp. Finance India Ltd. FF Division 1st Floor,City Bank Centre, P. No. C-61, G Block, Bandra Kurla Complex, Bandra E, Mumbai-400051

                    … Respondents/Opp. Parties (OP) BEFORE     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner           :        Mr. Madhurendra Kumar, AdvocatePRONOUNCED ON       5 th   August,     2013  O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER          

This revision petition has been filed by the petitioner/complainant against the order dated

10.10.2012 passed by the Haryana State Consumer

DisputesRedressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No.

1154 of 2012  – Jilay Singh Vs. National Insurance Co. Ltd. & Ors. bywhich, while dismissing

appeal, order of District Forum dismissing complaint was upheld. 

2.      Brief facts of the case are that complainant/petitioner’s vehicle HR-38-J-4095 was insured

by OP/respondent for a period of one year commencing from 24.1.2005 to 23.1.2006.  On

9.5.2005, vehicle parked in front of the house of driver was stolen.  FIR was lodged on 4.6.2005

and respondents were informed immediately regarding theft of the vehicle.  Respondents

repudiated claim alleging deficiency on the part of

petitioner/complainant.  Petitioner/complainant filed complaint before District forum.

Respondents contested complaint and submitted that FIR was lodged at a very belated stage and

OP was not informed about theft and prayed for dismissal of complaint. 

3.      District Forum after hearing both the parties dismissed complaint. Appeal field by the

petitioner was dismissed by learned State Commission vide impugned order against which, this

revision petition has been filed.

 

4.      Heard learned Counsel for the petitioner at admission stage and perused record. 

5.      Learned Counsel for the petitioner submitted that inspite of intimation to respondents

immediately after theft; learned State Commission has committed error in dismissing appeal and

learned District Forum has committed error in dismissing complaint and claim should have been

allowed on non-standard basis; hence, revision petition be admitted. 

6.      Perusal of record clearly reveals that FIR was lodged on 4.6.2005, whereas vehicle was

stolen on 9.5.2005, i.e. after a period of 25 days.  Petitioner has not filed any document regarding

intimation to Insurance  Company/respondent immediately after theft of the vehicle.  On the

other hand, respondent has denied any intimation by complainant.  In such circumstances,

learned State Commission has not committed any error in upholding order of District Forum

dismissing complaint. Learned Counsel for the petitioner has placed reliance on II (2010) CPJ 9

(SC) – Amalendu   Sahoo  Vs. Oriental Insurance Co. Ltd. in which claim was directed to be

settled on non-standard basis, as vehicle was used on hire, whereas insured  for personal

use.  This citation does not help to the petitioner in this case, as petitioner has lodged FIR after

25 days and has not intimated to the Insurance Company; hence, violated basic conditions of the

policy.  He has also placed reliance on IV (2008) CPJ 1 (SC) – National Insurance Co. Ltd.

Vs. Nitin   Khandelwal , which also does not help to the petitioner as in that case also vehicle was

insured for personal use and was being used by the respondent as a taxi, whereas in the case in

hand vehicle has been stolen and no intimation was given by the petitioner in time to the

respondent. 

7.      In I (2013) CPJ 713 (NC) – Suman Vs. Oriental Ins. Co. Ltd. and in I (2013) CPJ 741 (NC)

– Surender Vs. National Insurance Co. Ltd., I have decided that as per terms and conditions of

the policy, it is obligatory on the part of the complainant to intimate about theft to the OP

immediately. In aforesaid both the cases, I have upheld order of State Commission dismissing

complaint. 

8.      In the light of aforesaid judgements, we do not find any illegality, irregularity of

jurisdictional error in the impugned order and revision petition is liable to be dismissed. 

9.      Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to costs. 

                                     ..……………Sd/-………………( K.S. CHAUDHARI, J) PRESIDING MEMBER  ..…………Sd/-…………………( DR. B.C. GUPTA ) MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO.   2575 OF 2008 From the order dated 04.03.2008 in Appeal No. 1346/1995 of the U.P. State Consumer Disputes Redressal Commission, Lucknow 1. Lifie Insurance Corpn. of India Main Branch, through its Chairman Post Box No. 19953, Jivan Bima Marg Bombay – 400021 2. Life Insurance Corpn. of India Zonal Office, Through its Zonal Manager Jivan Vikas, 16/98, Mahatma Gandhi Marg,   3. Branch Manager, Life Insurance  Corpn. of  India 613, First Floor, Railway Road, Hapur

                                                     … Petitioners/Opp. Parties (OP)                                         VersusSmt. Manavinder Kaur W/o Smt. Maharaj Singh R/o Khureti House Jail RoadRae Bareilly.

                                              … Respondent/Complainant BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBERFor the Petitioner                       :         Ms. Manisha Tyagi, AdvocateFor the Respondent                   :         Mr. Himmat S. Sidhu, Auth. Rep.                                                         PRONOUNCED ON       5 th   August,     2013  O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

          This revision petition has been filed by the petitioners/Opposite parties against the order

dated 04.03.2008 passed by the U.P. State Consumer

DisputesRedressal Commission, Lucknow (in short, ‘the State Commission’) in Appeal No.

1346/1995  – LIC of India Vs. Manavinder Kaur by which, while dismissing appeal, order of

District Forum allowing complaint was upheld. 

2.      Brief facts of the case are that complainant/respondent took ‘Bima Sandesh Policy’ with

accidental benefits from OP/petitioner in the name of her minor son Kulbir Singh Sidhu, who

was 17 years & 6 months. He died on 11.6.1991 in an accident. Complainant filed claim with the

OP. OP paid only basic assured amount without accidental benefits and, as accidental benefits

were not paid, alleging deficiency on the part of OP filed complaint before District

Forum. OP/petitioner contested complaint, filed written statement and submitted that accidental

benefits were not payable, as minor was not covered in accidental benefits and prayed for

dismissal of the complaint.  Learned District Forum after hearing both the parties allowed

complaint and directed OP to pay Rs.1,00,000/- as accidental benefits along with 18% p.a.

interest from 22.09.1984 till payment.   Appeal filed by the petitioner was dismissed by learned

State Commission vide impugned order against which, this revision petition has been filed. 3.      Heard learned Counsel for the petitioner and authorized representative of respondent and

perused record.

 

4.      Learned Counsel for the petitioner submitted that, though, policy for accidental benefits

could not have been issued in the name of minor, but still petitioner has already paid accidental

benefits, but rate of interest awarded by District Forum is on higher side; hence, revision petition

be allowed to this extent and rate of interest be reduced. On the other hand, authorized

representative for the respondent submitted that respondent is contesting this matter since 18

years and rate of interest awarded by District Forum is not on higher side; hence, revision

petition be dismissed.

 

5.      As petitioner has already paid original sum assured and amount of accidental benefits, as

awarded by District Forum, we need not to go on the merits of the case. Now, the question

remains only  regarding rate of interest..

 

6.      Learned District Forum has awarded 18% p.a. interest from 22.9.1994 and learned State

Commission has dismissed appeal of the petitioner. It is doubtful whether;

‘Bima Sandesh Policy’ with accidental policy could have been issued by the petitioner in the

name of minor.  Apparently, 18% p.a. interest is on the higher side and 12% p.a. interest would

meet the ends of justice. In such circumstances, it would be appropriate to reduce rate of interest

from 18% p.a. to 12% p.a.

 

7.      Consequently, revision petition filed by the petitioner is partly allowed and impugned order

dated 4.3.2008 passed by learned State Commission and order of District Forum dated 24.7.1995

passed in Complaint No. 1348/94 is modified and grant of interest @ 18% p.a. is reduced to 12%

p.a. interest. Rest of the order is upheld.  There shall be no order as to costs.

                                     ..………………Sd/-……………( K.S. CHAUDHARI, J) PRESIDING MEMBER  ..……………Sd/-………………( DR. B.C. GUPTA ) MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.   4270 OF 2012 (From the order dated 09.08.2012 in First Appeal No. 354/2012of Madhya Pradesh State Consumer Disputes Redressal Commission) Vijay Singh Tomar s/o Shishupal Singh Tomar r/o Gandhi ColonyMuraina, Madhya Pradesh

                                      ... PetitionerVersusNational Insurance Co. Ltd. Opposite Hariraj Talkies M.S. Road, Morena Madhya Pradesh Through its Branch Manager

                   … Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s)   Ms. Swikriti Singhania, AdvocateFor the Respondent(s)   Mr. Ravi Bakshi, Advocate

 

PRONOUNCED   ON :   7 th   AUGUST 2013 O R D E R PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 by the petitioner against the impugned order dated 09.08.2012 passed by the Madhya

Pradesh State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in

FA No. 354/2012, “Vijay Singh Tomar versus  National Insurance Co.” vide which appeal filed

against the order dated 10.01.2012 in complaint case no. 35/2010 passed by District Consumer

Disputes Redressal Forum, Muraina, was partly allowed.  The District Forum ordered that the

OP shall make payment of claim on the basis of 100% damages according to IDV within a

period of 30 days and also pay interest @ 7% p.a. with effect from 2.2.2009 in addition to

Rs.8,000/- towards deficiency in service and Rs.2,000/- as litigation costs.  The State

Commission vide impugned order partly allowed the appeal of the present respondent/OP

Insurance Company and directed them to pay Rs.2,00,000/- with interest @ 8% p.a. with effect

from 2.2.2009 and also Rs.2,000/- as costs. 

2.     Brief facts of the case are that the petitioner/complainant is the registered owner of bus

bearing no. MP-33/P0126 which was insured with the respondent/OP from 17.03.2007 to

16.3.2008 as per policy no. 321401/31/06/6300002091.  The said vehicle got burnt on 12.2.2008

due to some accident and was completely damaged.  The petitioner sent intimation to the

insurance company which appointed a surveyor Ashok Gupta to make a spot-survey.  The

company thereafter appointed another surveyor Manohar Singh to make an appraisal of

loss.  The complainant presented a complaint no. 300/2008 before the District Forum on

15.10.2008 and the District Forum vide their order dated 2.2.2009 observed as under:-“Except that after prepared the report the surveyor kept it with him for two months.  After two months later he has presented the above report before the Respondent Insurance Company.  After filing the report before the Respondent Insurance Company dated 3/12/08 Respondent Insurance Company has not disposed of his claim petition till today.  There is no justified reason for such late.  So in this situation it is found that for disposal of claim the Respondent Insurance Company unnecessarily delayed and defaulter in service to petitioner, but this claim petition shall be disposed of by the Respondent Insurance Company on merits and demerits.  In this situation it is not found fit to pass any order regarding compensation and regarding that petition of petitioner is pre mature.”

 

3.     The surveyor Manohar Singh in his final report has stated that the loss assessed on repairing

basis would be Rs.3,47,865/-; on cash loss basis it would be Rs.2,36,219/- and on total loss basis

Rs.7,49,000/-.  The company decided to make payment on the basis of cash loss basis and

offered a sum of Rs.2,37,147/- to the petitioner but he refused to accept the amount and pleaded

that he would accept that amount under protest only.  There was correspondence between the

petitioner and the company and ultimately, the amount of Rs.2,37,147/- was received by the

petitioner under protest.  The petitioner filed a consumer complaint in front of the District Forum

again against the decision of the Insurance Company vide complaint no. 35/2010 saying that the

insured amount of Rs.7,00,300/- should be paid along with Rs.1 lakh for mental / physical

harassment and Rs.15,000/- for litigation expenses along with interest @12% p.a. on the amount

of claim from the date of filing the same.  The District Forum vide their order dated 10.01.2012

ordered that the payment of claim should be made on the basis of 100% damages, according to

the IDV of the policy along with interest @ 7% p.a. from 2.2.2009, the date of earlier order

passed by the District Forum and also payment of Rs.8,000/- towards deficiency in service and

Rs.2,000/- as litigation cost should be made to the petitioner.  The OP insurance company filed

an appeal against this order before the State Commission and vide impugned order dated

9.08.2012, the State Commission observed that the petitioner had already received Rs.2,37,847/-

under protest from the insurance company and he is entitled to get Rs.2 lakh more along with

interest @ 8% p.a. with effect from date of the first order, i.e., 2.02.2009.  It is against this order

that the present petition has been made and as per the prayer, the petitioner has asked for award

of Rs.7.5 lakh towards claim, Rs.1 lakh as compensation for mental and physical agony,

Rs.15,000/- as cost of litigation along with interest @ 12% p.a. from the date of filing the

complaint. 

4.     Heard the learned counsel for the parties and examined the record. 

5.     It was argued by the learned counsel for the petitioner that the vehicle had been totally burnt

during the accident and hence they are entitled for payment of damages on total loss basis. 

6.     The District Forum vide their order dated 2.2.2009 had commented on the working of the

company saying that the report of the surveyor had been received quite late and the company was

causing undue delay in the disposal of the claim.  The District Forum observed that at this stage,

it was not found fit to pass any order regarding compensation and they, therefore, directed the

insurance company to dispose of the claim on merits, within 30 days of passing the order on

2.2.2009.  The learned counsel further argued that the insurance company had earlier appointed a

surveyor, Ashok Gupta for spot survey and hence, there was no justification for appointing

another surveyor Manohar Singh.  Moreover as observed in the order of the State Commission,

there were serious discrepancies in the report submitted by Manohar Singh Surveyor.  The

petitioner had appointed their own surveyor Naren Sharma, who had given the report that the

loss was about Rs.10.32 lakh.  In the estimate made by the authorised dealer S.G. Motors, it had

been stated that the expenses incurred to restore the previous conditions of the vehicle would be

Rs.11,82,508/-.  The surveyor appointed by the petitioner has produced photographs which show

that the vehicle was completely damaged by fire.  The Branch Manager of the Insurance

Company had also filed an affidavit that if the damage to a vehicle was less than 75%, the claim

was given on the basis of actual damage. In the present case, it was clear that the damage to the

vehicle was more than 75%.  The revision petition should, therefore, be accepted and the relief

prayed for should be allowed.  Learned counsel invited our attention to the order passed

by Hon’ble Apex Court in “Sri Venkateswara Syndicate versus Oriental Insurance Co. Ltd.

& Anr.” [(2009) 8 SCC 507], in which it has been held by the Apex Court that appointing

surveyors one after another so as to get a tailor-made report to the satisfaction of the insurer, is

impermissible. 

7.     Learned counsel for the respondent Insurance Company, however, stated that the first

surveyor Ashok Gupta was appointed just to have spot survey.  The main surveyor in this case

is Manohar Singh and it is not correct to say that Manohar Singh is second surveyor in the

case.  He stated that the report given by the surveyor appointed by the petitioner should not be

relied upon as Naren Sharma was not an independent surveyor.  The surveyor appointed by them

had not taken into consideration the depreciation of the vehicle whereas the same should be

taken into account while deciding the claim.  Moreover, the surveyor of the petitioner has

included many items in the report which are non-admissible.  Learned counsel argued that they

agreed with the order passed by the State Commission and the present petition should be

dismissed.  

8.     In reply, learned counsel for the petitioner again stated that it was a case of total loss and

payment should be made in accordance with the IDV, i.e., Rs.7.5 lakh. 

9.     We have examined the entire material on record and given a thoughtful consideration to the

arguments advanced before us. 

10.   A perusal of the report submitted by Manohar Singh surveyor appointed by the Insurance

Company indicates that he assessed the loss at Rs.2,37,147/- on cash loss basis and Rs.3,47,865/-

on repair basis.  In his opinion, as part of the report, the surveyor says that “Obviously, opting

the settlement of loss in question on cash loss basis imposing the liability of insurance for

Rs.2,37,147/- only would be more economical as compared to settlement on repairing basis,

hence advised in the interest of the company.”  In his earlier report, the surveyor Manohar Singh

clearly stated that the assessment of loss on repair basis is Rs.3,42,865/- to Rs.3,47,865/-, on cash

loss basis, Rs.2,36,219/- and on total loss basis, Rs.7,49,000/-. He recommended that payment on

cash loss basis would be economical and in the interest of company. 

11.   It is clear from the report of the surveyor appointed by the company that the prime focus of

the surveyor is to look after the economic interest of the company, rather than to make his report

on the reality of the situation.  The State Commission vide impugned order also observed that the

valuation done by Manohar Singh surveyor was very low and a large number of parts had been

deleted from the said report.  From the assessments made by dealers like S.G. Motors and the

entire material on record, it is made out that the vehicle suffered an extensive damage and it is

quite apparent that the loss in vehicle would be more than 75%.  The estimate of S.G. Motor says

that in order to restore the vehicle to its original condition, a sum of Rs.11.82 lakh will be

required.  The District Forum, therefore, after examining the entire evidence on record came to

the conclusion that the Opposite Party should make the payment of claim on the basis of 100%

damage according to the IDV of the policy along with interest @ 7% p.a. with effect from

2.2.2009 in addition to Rs.8,000/- for deficiency in service and Rs.2,000/- as costs.  In the

complaint filed by the petitioner, it has been stated that when proposals were demanded for

disposal of the burnt bus, a proposal was received for buying the whole burnt bus as junk for an

amount of Rs.49,700/-.  The petitioner has requested in his complaint that he is entitled to get a

sum of Rs.7,00,300/- (IDV Rs.7,50,000 – Rs. 49,700) as loss and Rs.1,00,000/- as compensation

for mental harassment and Rs.15,000/- as litigation cost along with an interest @ 12% p.a. from

the date of filing the complaint till realisation. 

12.   The overall facts and circumstances on record make it amply clear that it is a case of total

loss, where the damage to the bus because of fire incident is much more than 75%.  It shall,

therefore, be in the interest of justice that payment should be made by the Insurance Company as

per the order passed by the District Forum but after deducting the salvage value of

Rs.49,700/-.  This revision petition is, therefore, accepted and the order passed by the State

Commission is modified and the petitioner is directed to make payment of Rs.7,00,300/- to the

complainant along with an interest @7% w.e.f. 2.2.2009 till complete payment within a period of

30 days from the date of pronouncement of this order.  The petitioner should also make payment

of compensation of a sum of Rs.8,000/- for deficiency in service and Rs.2,000/- as litigation

costs.  There shall be no order as to costs.

 Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER  Sd/-(DR. B.C. GUPTA)MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.   2381 OF 2012 (From the order dated 30.03.2012 in First Appeal No. 970/2008of Punjab State Consumer Disputes Redressal Commission) United India Insurance Co. Ltd. Regd. & Head Office 24, Whites Road Chennai – 600014 Through its Regional office No. 1 Kanchenjunga Building 8 th Floor, Barakhamba Road, New Delhi – 110001.

                                        ...  Petitioner  Versus M/s. Naveen Sales (India) r/o 17/9-10, Jawahar Nagar Midda Chowk, Ludhiana – 141003

… Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s)   Mr. V.S. Chopra, AdvocateFor the Respondent(s)   Mr. Vivek Gupta, Advocate

PRONOUNCED   ON :   7 th   AUGUST     2013 O R D E R PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 by the petitioner against the impugned order dated 30.03.2012, passed by the Punjab State

Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.

970/2008, United India Insurance Co. Ltd. versus M/s. Naveen Sales (India), by which, while

dismissing appeal, the order passed by District Consumer Disputes Redressal Forum, Ludhiana

in complaint no. 334/4.5.2005 allowing the complaint and ordering the petitioner to pay

Rs.13,31,181/- along with interest @ 9% p.a. from the date of filing the complaint till payment

along with a compensation of Rs.10,000/- and litigation cost of Rs.2,000/- was upheld. 

2.     Brief facts of the case are that the petitioner issued an insurance policy number

201002/11/03/00372 called ‘Standard Fire and Special Perils Policy’ in favour of the

complainant / respondent for a sum of Rs.20.50 lacs for the period 17.3.2004 to 16.03.2005.  Out

of this amount of Rs.20.50 lacs, Rs.20 lacs was meant for stocks of all kinds of sofa material,

curtains cloth, mattresses, pillows, cushions, towels, bed sheets, etc., and Rs.50,000/- was the

coverage for furniture, fixtures, fittings and electrical items.  During the currency of the policy,

fire occurred on 19.09.2004 at about 3:30 a.m. and the respondent estimated the loss to be

Rs.20,68,090/-.  An intimation was given by the respondent to the local police on the date of the

fire and the insurance company was also intimated.  The petitioner insurance company appointed

a surveyor to assess the loss.  Vide his report dated 29.01.2005, the surveyor assessed the loss at

Rs.10,80,770/-.  The surveyor also pointed out that at the time of loss, there was construction

going on in the shop on the first and second floors of the building.  In order to supply electric

current to first and second floor, electric wires had been put on the main electric meter for the

shop, which resulted in probable short-circuiting, leading to fire.  The petitioner repudiated the

claim, saying that there was violation of conditions of the policy, because construction was going

on in the premises.  The complainant filed a consumer complaint before the District Forum

which was allowed by the said Forum and compensation as stated in the foregoing paragraph

was allowed.  The District Forum reached the conclusion that as per physical verification, there

was stock worth Rs.18,04,468/-, out of which stock worth Rs.4,73,287/- was lying safe in the

godown.  After deducting this amount of Rs.4,73,287/-, the District Forum ordered to pay

Rs.13,31,181/- along with interest @ 9% p.a. and compensation as stated above.  An appeal

against this order was also dismissed by the State Commission.  It is against this order that the

present revision petition has been filed.  

3.     Heard the learned counsel for the parties and examined the record. 

4.     The learned counsel for the petitioner argued that the complainant had violated the terms

and conditions of the policy by carrying out construction activity on the premises.  He has drawn

our attention to portion B of the warranties, forming part of the policy, in which it is stated under

condition 3(a) that if a change or alteration is made in the building containing the insured

property, so as to increase the risk or loss or damage by insured perils, it shall constitute

violation of the terms and conditions of the Policy.  The learned counsel further argued that in

the present case, only the stocks and furniture etc. had been insured and not the building

containing such stocks.  As made out from the report of the surveyor, the cause of fire was short-

circuiting due to construction activity going on at the premises.  

5.     Learned counsel for respondent stated, however, that there was separate electric connection

for ground and first, floors.  The construction activity had nothing to do with the fire, in

question.  He further maintained that the complainant was not required to obtain the permission

of the petitioner/OP before starting the construction, and there was no such clause in the terms

and conditions of the Policy.  

6.     The facts of this case bring out that construction activity was being carried out at the

premises in question and as per the surveyor’s report, the probable cause of fire could be due to

short-circuiting, but we agree with the findings of the District Forum and State Commission that

in this case also, the insurance company cannot escape responsibility to pay the claim under the

Policy.  We do not agree with the contention of the petitioner that the construction activity had

resulted in increased risk for the insured stocks in question.  It has also been made clear that

there are separate electric connections for the ground floor and first floor and there are separate

electricity meters for the same.  It is not clear anywhere that the insured was required to obtain

permission of the insurance company before starting the construction.  The District Forum in

their order have rightly assessed the value of the total stocks, in question and the value of the

stocks lying safe in the godown, and allowed the claim after taking into consideration both these

values.  We, therefore, find no illegality or irregularity in the orders passed by the District Forum

and State Commission which reflect true appreciation of the facts and circumstances on

record.  These orders are, therefore, upheld and the present revision petition stands dismissed

with no order as to costs. Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER  Sd/-(DR. B.C. GUPTA)MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2294 OF     2013 Alongwith ( I.A.for C/Delay and  Stay )

 (From order dated 01.04.2013 in First Appeal No.117 of        2011of State Consumer Disputes Redressal Commission, Delhi)

Ansal Housing and Construction Ltd. IS, UGF, Indraprakash Building, 21, Barakhamba Road, New Delhi-110001.

                       .... Petitioner

                        Versus

Rajendra Prasad Gupta, R/o 46, Amrit Nagar, South Extension Part-I, New Delhi.

                               ...…Respondent     

BEFORE:

        HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

        HON’BLE MRS. REKHA GUPTA, MEMBER

or the Petitioner    :  Mr.Aaditya Vijay Kumar, Advocate

 Pronounced on: 12 th   August, 2013  

ORDER 

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

      Petitioner/O.P. aggrieved by order dated 1.4.2013 of the State Commission, Delhi (for short,

‘State Commission’) has filed the present revision petition under Section 21 of the Consumer

Protection Act, 1986(for short, ‘Act’).

2.   At the outset, it may be pointed out that petitioner for the reasons best known to it, has not

placed on record copy of the complaint filed by the respondent/complainant before District

Forum. On this short ground, present revision is liable to be dismissed. In Special Leave to

Appeal (Civil) No. 22967of 2012,Ganpathi Parmeshwar Kashi and Anr. Vs. Bank of India &

Anr, decided by Hon’ble Supreme Court on 14.1.2013, the court observed;

          “i) the petitioners have deliberately omitted to place before the Court, copies of the complaint filed by them and the written statement filed by respondent No. 1. This has been done with a view to avoid scrutiny by the Court of the averments contained in the complaint”.

 

3.   Be that as it may, as apparent from the record, respondent had filed  Complaint No.1106 of

2011, before District Forum-VI, I.P. Estate, New Delhi (for short, ‘District Forum’).Since,

petitioner did not appear before the District Forum despite service of the notice on 23.5.2012,

District Forum passed the following order;

   “23.05.12:Mr.Ankit Sinha, Counsel for complainant. Notice already served on OP. OP Called several times. OP proceeded ex-parte. Fix up for ex-parte evidence on 28.8.2012”.  

 

4.    Against order dated 23.5.2012, petitioner filed (First Appeal No.117of 2013) before the

State Commission. Alongwith it, an application seeking condonation of delay of 221 days was

also filed.

5.     State Commission, vide impugned order rejected the application for condonation of delay

and dismissed the appeal being time barred.

6.    Thus, aggrieved by the impugned order, petitioner has filed this revision.

7.    We have heard the learned counsel for the petitioner and gone through the record.

8.    It has been contended by learned counsel for the petitioner that no valid and effective notice

has been served upon the petitioner. Notice for hearing for 19.3.2012 was received by the

petitioner on 22.3.2012 which cannot be said to be valid and effective service. Since, no notice

has been received from the District Forum, thus there were sufficient grounds for setting aside the

ex-parte order passed by the District Forum. The application for condonation of delay was filed

before the State Commission as a matter of abundant caution, as the ex-parte order came to be

known only on 22.1.2013.

9.   Main grounds on which condonation of delay was sought before the State Commission read

as under;

“3.  That the appellant had no notice of the    pendency of the present matter and that an order to proceed ex-parte against it had been made on 23.05.2012 and the knowledge of the pendency of the said matter was obtained by the appellant company only on 22.01.2013.

 

4.    That on 22.01.2013, when a clerk of the appellant company who was newly assigned in 2013 to look after the matters of the appellant company in Learned District Consumer Disputes Redressal(New Delhi) ITO, New Delhi-01 was noting the dates of various matters of the appellant company before the Hon’ble District Forum, from the court diary, he noticed that against the date of 30.01.2013 the present matter against the appellant is listed for final arguments. The same was accordingly communicated to the concerned officer of the legal department of the appellant company and inquiries made as to how the matter could have skipped the notice of the officers assigned for handling consumer cases in the said District Forum. It was then that

the clerk who was handing the matters in District Forum till November, 2012 which he saw in the notice board when he went to the court premises and orally stated to the Hon’ble District Forum that the appellant did not know of the pendency of the said matter and will file an application which oral prayer was not allowed. The said clerk left for his native place on the very same day due to some family problems and returned after a week and since he was assigned in another department of the appellant company in December, 2012 he forgot to bring the said event to the notice of the concerned officers of the appellant company earlier and the present appeal therefore could not be filed earlier.

 

5.    That this being the situation an application for inspection of the file of the present matter was urgently made on 24.1.2013 and which inspection was allowed to be carried on 28.01.2013 since 25.01.2013 to 27.01.2013 were holidays. It was found that the present matter was indeed listed for final arguments on 30.1.2013 after an ex parte order against the appellant was passed on 23.05.2012 and pleadings and evidence complete in the matter. It was further found that the matter was listed on 19.03.2012 although the same was not shown in the cause list in the website of the Hon’ble District Forum on the said date.

 

 6.   That in this view of the matter is it humbly submitted that the appellant became aware of the pendency of the present proceedings only on 22.1.2013 and filed the present appeal immediately after inspection of the court file which was done on 28.01.2013. In this view of the matter the delay in filing the present appeal may kindly be condoned in the interest of justice”.

 

10.   In the application for condonation of delay, petitioner itself admits that knowledge of the

pendency of the matter before the District Forum was obtained by the petitioner on 22.1.2013. In

the same breath, petitioner  in the application for condonation of delay has taken an altogether

different stand  stating that;

   “Clerk who was handling the matters in the District Forum till November, 2012 has stated that he saw the matter listed in the cause list on 30.11.2012”.

 

11.   It is further the case of petitioner that said Clerk left for his native place on the same very

day and returned back after a week and since that clerk was assigned in other department of the

petitioner-company, he forgot to bring the said event to the notice of the concerned officers of the

petitioner-company earlier and the appeal, therefore, could not be filed earlier.

12.   Another version with regard to the service of notice from the District Forum has been

mentioned by the petitioner in the “List of Dates and Events”(page no.1 of the paper-book) and

the same state as under;

    “The petitioner receives the notice returnable on 19.03.2012, three days later i.e. on 22.3.2012”.

 

13.   Thus, as per petitioner’s own case, petitioner’s clerk was aware about the pendency of the

matter before the District Forum for 19.3.2012 and later on for 30.11.2012.

14.   However, in the entire application for condonation of delay, name of that clerk has not been

mentioned nor affidavit of that so called clerk has been filed.

15.   The State Commission while dismissing the appeal in its impugned order observed;

       “9   In the case in hand the ground is that the work was assigned to the officers of the company, who skipped. Obviously,there is a sheer negligence and carelessness on the part of the company in dealing the cases.  Suffice to say, that the appellant is a company registered under the Indian Companies Act, 1956 and has large number of employees in the Law Department to deal with the legal cases.  Further, it is having full-fledged legal department under its command comprising large number of legal personal. Inspite of having all the resources in its command, if a company registered under the Indian Companies act takes more than seven months in filing the appeal, then it can only be said that how inefficient, careless and negligent are the employees of the appellant.  Despite having all the facilities and infrastructure under it,the appellant officials have acted in a very careless and negligent manner for the purpose of filing this appeal. We may further mention that the order sheet dated 23.5.2012 of the aforesaid case of the District Forum that a specific and categorical finding has been made by the District Forum that notice has already been served on the appellant, and despite several times none appeared. This very apparently shows the callous and lethargic act of the appellant. Under these circumstances,the application for condonation of delay is hereby rejected. In consequence, the appeal filed by the appellant dismissed as being barred by time thereof”.                      

 

 

16.      Apex Court in Anshul Aggarwal Vs. New Okhla   Industrial Development Authority, IV

(2011)CPJ 63 (SC) has observed ;

   “It is also apposite to observe that while deciding an application filed in

such cases for condonation of delay, the Court has to keep in mind that the

special period of limitation has been prescribed under the Consumer

Protection Act, 1986 for filing appeals and revisions in consumer matters

and the object of expeditious adjudication of the consumer disputes will get

defeated if this Court was to entertain highly belated petitions filed against

the orders of the consumer foras”.

 

17.  This Commission in Mahindra Holidays & Resorts India Ltd. vs. Vasantkumar H.

Khandelwal and Anr, Revision Petition No.1848 of 2012 decided on 21.5.2012 has held;

   “that under the Consumer Protection Act, 1986 the District Forum is supposed to decide the complaint within a period of 90 days from the date of filing and in case of some expert evidence is required to be led then within 150 days. The said Bench dismissed the revision petition on the ground that it was delayed by 104 days”.

 

18.  It is well settled that Qui facit per alium facit per se, Negligence of a litigant’s agent is

negligence of the litigant himself and is not sufficient cause for condoning the delay. See M/s.

Chawala & Co. vs. Felicity Rodrigues, 1971 ACK 92.

19.  There is nothing on record to show that petitioner’s Company is being represented by

illiterate persons. Therefore, it was expected from petitioner to have been vigilant and careful in

pursuing the litigation which was pending before the fora below. Thus, gross negligence,

deliberate inaction and lack of bonafide is imputable to the petitioner. In order to cover up its

own negligence, the petitioner has shifted the entire burden upon a clerk, which cannot be

justifiable under any circumstances.

20.  Thus, in our view, the discretion exercised by the State Commission in declining the

petitioner’s prayer for condonation of long delay of 221 days, does not suffer from any legal

infirmity and the possibility of this Commission forming a different opinion in the matter of

condonation of delay cannot justify interference with the impugned order under Section 21(b) of

the Act.

21.  The present revision petition having no merit and being without any legal basis, has been

filed just to delay the disposal of the complaint filed by the respondent. Under these

circumstances, the present revision is required to be dismissed with punitive cost. Accordingly,

we dismiss the present revision petition in limine with cost of Rs.30,000/-(Rupees Thirty

Thousand Only).

22.   Out of this cost, Rs.20,000/-(Rupees Twenty Thousand Only) shall be paid to the

respondent. Petitioner is directed to deposit the cost of Rs.20,000/- by way of demand draft in the

name of respondent and balance amount of Rs.10,000/-(Rupees Ten Thousand Only) by way of

demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission. Aforesaid costs

be deposited within four weeks. In case, petitioner fails to deposit the aforesaid costs within the

specified period, then it shall also be liable to pay interest @ 9% p.a. till realization.

23.   Cost awarded in favour of the respondent shall be paid to him only after expiry of period of

appeal or revision preferred, if any. 

24.  Pending application, if any, stand disposed of.

25.  List on 13.09.2013 for compliance.

                                                                    …..…………………………J

                                               (V.B. GUPTA)

                                        PRESIDING MEMBER

                                                                                         …..…………………………

                                             (REKHA GUPTA)

                                                             MEMBER

SSB

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.   2416 OF 2013 (From the order dated 16.05.2013 in First Appeal No. 386/2010of U.P. State Consumer Disputes Redressal Commission) Devender Kumar Verma s/o Bhaiya Lal Verma r/o 22, Mohalla Gandhi Nagar Kasba Orai District Jalaon

                                         ...  Petitioner Versus The Oriental Insurance Co. Ltd. Through Branch Manager The Oriental Insurance Co. Ltd. Branch Raj Marg Oral, Pargna OraiDistt. Jalaon

                                            … Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s)   Mr. Abhishek Sharma, Advocate

 

PRONOUNCED   ON :   12 th   AUGUST     2013 O R D E R PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 by the petitioner against the impugned order dated 16.05.2013 passed by the Uttar Pradesh

State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA 

No. 386/2010, “Devender Kumar Verma versus Oriental Insurance Co. Ltd.,” by which, while

dismissing appeal, order dated 15.12.2009 passed by the District Consumer Disputes Redressal

Forum, Jalaon, dismissing the complaint no. 146/2007 , was upheld.  

2.     Brief facts of the case are that the complainant Devender Kumar Verma bought a Mahindra

Jeep 2 WD for Rs.3,60,000/- on 07.01.1998 and got it insured with the OP Oriental Insurance

Co. by paying annual premium of Rs.11,264/-, bearing insurance policy no. 1998-1008 dated

08.01.98 and cover note number 484981.  On 16.11.1998, at about 8 p.m., four unknown persons

are stated to have looted the said jeep, intimation of which was given to the Police and case

crime No. nil / 98 u/s 328/394 IPC was got registered at P.S. Kotwali Orai and after

investigation, final report was filed in the court of Sub-Judge Urai, bearing criminal case no.

41/2001 and the court accepted the said report on 07.02.2001.  It has been stated in the complaint

that after the acceptance of final report by the Court, the complainant submitted application to

the respondent on 09.02.2001 and the insurance claim was duly filed along with relevant

documents.  However, the said claim was repudiated by the Insurance Company on 28.03.2000

saying that the complainant did not complete the necessary formalities required.  It was also

stated that the complainant had sold out the said jeep or had misappropriated the same, so that

the insurance company may not get any investigation done.  The complainant filed consumer

complaint before the District Forum which was dismissed as being time barred and also due to

violation of the terms and conditions of insurance.  An appeal against this order was also

dismissed by the State Commission vide impugned order.  It is against this order that the present

revision petition has been filed. 

3.     The learned counsel for the petitioner stated at the time of admission hearing that the

petitioner/complainant tried his best to lodge an FIR with the Police, but the FIR was lodged

only after an order was passed by the Court on an application u/s 156(3) Cr.P.C.  The petitioner

promptly reported the lodging of the FIR to the respondents and they appointed a surveyor to

assess the loss.  However, the respondent again and again requested for the final report of the

Police from the petitioner, but without waiting for the report, repudiated the claim on

28.03.2000.  The learned counsel stated that the orders passed by the State Commission and

District Forum are perverse in the eyes of law, because they ignored the fact that he had

approached the Police for lodging the FIR and they had refused to register the same.   The final

report of the Police was submitted to the Court on 7.02.2001 and hence, repudiation of the claim

by the insurance company before the submission and acceptance of final report was bad in the

eyes of law.  The learned counsel further stated that in case there had been any violation of terms

and conditions of the policy, the claim should have been allowed on ‘non-standard’ basis, as held

by the Hon’ble Apex Court in “National Insurance Co. versus Nitin Khandelwal” [2008 CTJ 680

(SC) (CP)].  He also invited our attention to the letters dated 08.03.99, 30.06.99 and 10.12.99

sent by the surveyor asking for certain documents and final report of Police.  

4.     We have examined the material on record and given a thoughtful consideration of the

arguments advanced before us. 

5.     The consumer complaint no. 146/2007 has been filed in July 2007 by the petitioner /

complainant, whereas the alleged incident took place on 16.11.98 and the claim of the petitioner

was repudiated by the insurance company on 28.03.2000 and an intimation to this effect was sent

by registered post on 30.03.2000.  It is very clear, therefore, that the complaint has not been filed

within prescribed limitation period of two years from the cause of action, as laid down under

section 24(A) of the Consumer Protection Act, 1986.  The petitioner has not been able to give

any reasons for late filing of the complaint.  It is made out from record that application for

condonation of delay in filing the complaint was also not filed.  Moreover, it is also clear from

record that the intimation of dacoity was given to the insurance company after 22 – 23 days of

incident, which is a violation of the terms and conditions of the policy.  It is clear, therefore, that

the State Commission and the District Forum have not committed any illegality or irregularity in

arriving at the conclusion for dismissing the said complaint.  There is also no reason to agree

with the contention of the petitioner that the claim should have been allowed at least on ‘non-

standard’ basis.  It is quite apparent from the letters sent by the surveyor to the petitioner that the

insurance company and the surveyor tried their level best to obtain the requisite documents from

the petitioner, but he did not take adequate interest in supplying the requisite information.  We,

therefore, find no justification to amend the orders passed by the State Commission and the

District Forum in any manner.  The revision petition is, therefore, ordered to be dismissed with

no order as to costs. Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER  Sd/-(DR. B.C. GUPTA)MEMBERRS/                                                         

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

  REVISION PETITION NO. 3142 OF 2012

    (Against order dated 18.05.2012 in First Appeal No. 828/2007 of the                Punjab State Consumer Disputes Redressal Commission, Chandigarh)          

The New India Assurance Co. Ltd. Gurdaspur Road, Pathankot Through Manager, Regional Office-I, Jeevan Bharti Building, 124, Connaught Circus, New Delhi-110001.

                                                               …Petitioner                                                            Versus

M/S Satpal & Co., Lamini Pathankot, District Gurdaspur Through its Partner                                                             …Respondent

                            

                              AND REVISION PETITION NO. 3143 OF 2012

 (Against order dated 18.05.2012 in First Appeal No. 1049/2007 of the               Punjab State Consumer Disputes Redressal Commission, Chandigarh)

 The New India Assurance Co. Ltd. Gurdaspur Road, Pathankot Through Manager, Regional Office-I, Jeevan Bharti Building, 124, Connaught Circus, New Delhi-110001.

                                                               …Petitioner                                                            Versus

M/S Satpal & Co., Lamini Pathankot, District Gurdaspur Through its Partner                                                             …Respondent  BEFORE:     HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER    HON’BLE DR.S.M.KANTIKAR, MEMBER  For the Petitioner         in both cases     :  Mr. Kishore Rawat, Advocate                                               For the Respondent in both cases         :  Mr. K.P.S. Dalal, Advocate with                                                            Mr. Ranjit Singh, Advocate

 

PRONOUNCED ON           August , 2013

 

ORDER

PER DR. S.M. KANTIKAR

1.       This common order will decide the

two  Revision  Petitions   filed  against  the  order  passed  by  the State Consumer Disputes

Redressal Commission, Chandigarh, Punjab  (in short, ‘State Commission’) in First Appeal

No. 828 of 2007 (New India Assurance Co. Ltd. Vs. Satpal & Co) and First Appeal No. 1049

of 2007( M/S Satpal & Co. Vs. New India Assurance Co. Ltd.), whereby the Hon’ble State

Commission dismissed the FA No. 828/2007 and allowed the FA No. 1049/2007.  Those  two

appeals  were  filed  in  the  State  Commission  against the  orders  of  the District Consumer

Disputes Redressal Forum, Gurudaspur (in short, ‘District Forum’).

 

2.       Brief facts:

The facts are similar in both revision petitions. M/s Satpal & Company,

the  complainant  got  insured  its L & T  machine  from  the OP  vide  policy No.

361601/31/05/00334,w.e.f. 30.06.2005  to  29.06.2006.  

On 23.10.2005, the machine was working on hill and cleaning the   surface on the hill top.

It  caused  landslide  due  to  which,  the  machine  overturned  and was  totally  damaged.  Th

e  OP  was  duly  intimated  regarding  the  accident  and  loss  to  the  machine. The OP

appointed a surveyor. The  complainant submitted  all  the  claim  papers to the surveyor and

replied all the queries, but the claim  was  not  settled  by  the OP.  OP submitted

that  1st surveyor  Mr. Vikas  Gupta  conducted  spot  survey and gave  the  report on

9/11/2005 with details  regarding  damage to the machine. Thereafter, the OP-1 deputed

another Surveyor and Loss Assessor M/S R.P. Bhasin & Co. to conduct survey and to assess

the loss. The surveyor produced report on 12.03.2006 as assessed the loss  to  the tune of

Rs.2,20,610/- and the value of salvage @ Rs.7,000/-. In reply the  OP

refused  to  pay,    mentioning that  ‘loader  was not working at  the  time  of  loss’,

and  filed  the  claim of  the  complainant  as  ‘no  claim’. Aggrieved by the decision

of  the  insurance  company  on 28.03.2006 a legal notice was also served upon OP. The

complainant filed a complaint  for  deficiency  in  service by OP and  prayed  for   payment of

amount of   claim at  Rs.13.50  lacs  for  which  the  said  machine was insured along with

interest @ 12% p.a. from the date of loss till payment and to pay Rs.1lac as compensation on

account of harassment, loss  of  business  and  litigation  expenses.

 

3.       The District Forum held that the said machine runs into tons and it is not possible that the

machine can overturn as the base of the machine is very heavy. Referring to the site survey

report of Gram Panchayat  and  claim  form  it  was  further  held  that  the  said documents

show that the machine was clearing the land at the Hill Top

when  the  earth  below  gave  way and  the  said   machine  rolled   down  in the Khud. The

District Forum thus concluded that the repudiation of the claim was not justified and the claim

of the Complainant falls within the scope of the policy. As against the amount of

Rs.2,20,610/- assessed by the surveyor, the District forum awarded a sum of Rs.5,02,081/-

along with interest @ 9% from the date of repudiation and cost of Rs.2000/-

 

4.       The   order   of   the District   Forum was challenged by both parties before the State

Commission. The Complainant filed an appeal FA No.1049/2007 for enhancement of the

amount awarded by the District Forum. The Petitioner /OP  Insurance Company also filed

appeal FA 828/2007 for dismissal of complaint. The OP contended about the correct

repudiation of   claim   under IMT - 47 and also the District Forum could not have awarded

any amount over and above the amount assessed by the surveyor. The State Commission held

that it was not a case of overturning but it was the land slide by which the said machine was

damaged due to fell down from the Hill Top. Hence the IMT- 47 cause is not applicable. The

State Commission dismissed the appeal FA 828/2007 and allowed the Appeal FA 1049/2007

filed by the Complainant. The State Commission held that the surveyor had whimsically and

without reasons reduced the estimated loss and estimate of loss can be taken as actual loss

therefore, amount of estimated loss of Rs.7, 38,500.76 was allowed with interest @ 9% from

the date of repudiation.by the holding that. The estimate of loss can be taken as the actual loss.

 

5.       Aggrieved by the order of state commission the Petitioner preferred these two Revision

Petitions. 

 

6.       We have heard the counsels for both the parties, perused the documents on file and the IMT-

47 clause.

 

7.       The L & T machine(Excavator Loader) was  insured by complainant  with  the Petitioner and

at the time of accident the policy was in force. The State Commission made

following  observations11..... as per the evidence led by the Respondent  through Affidavit Ex.C-11, supported  by  the  certificate  of  Sarpanch  of  the Gram Panchayat Ex.C-6,  the L & T machine while excavating the land, fell down due to the  landslide  in  the  ditch. The Appellant   filed the claim as ‘ no claim’ for the reasons :-               “Loader was not working at the time of loss.”The  Appellant  deputed Mr.  Vikas  Gupta,  surveyor  who  gave  his report  Ex.R-3  and  under  the  head   ‘Cause  & Circumstances of Loss’, he reported as follows:-“While  clearing  the  surface  near  the  hill  top,  all  of  a sudden a portion of land slide & the machine rolled down into the Khud, causing multiple damages”.

 

8.       We have perused the evidence on record and noted that the surveyor Vikas Gupta

submitted the details of the damage caused, but did not assess the value of loss. The

Petitioner appointed 2nd Surveyor/Accessor M/S R.P. Bhasin & Co. who assessed the

loss to the tune of Rs.2,20,609.99/-. The surveyor made reduction in  the loss

assessed  and labour charges for which he did not give  any reasons.

 

9.       The petitioner repudiated the claim as  per  IMT – 47 i.e., the loss  or  damage  resulted

by overturning arising out of the operation  as  a tool,  is  not payable. Also extra

premium was not charged in the present case. We don’t find any force in argument of

Counsel for Petitioner. We are in considered view that  it  was  the

landslide  which  caused  the  said  L & T  machine  to  fall  down

from  the  hill  top  and  the  damage  was  caused .It is evident from

the  certificate  of  Sarpanch  of  the Gram Panchayat Ex.C-6. The damage was

not  caused due to overturning and, therefore IMT-47 is not applicable. 

 

10.   The Report as mentioned in   2nd surveyor’s report is “The parts mentioned as to be

checked after dismantling and hence not considered”;. Even though the district forum

made additions of value of those parts in the 1st surveyor’s assessment and arrived a

sum of Rs.502081/- .

 

11.   We need to consider another point that the complainant sold the machine as scrap

without any repairs or dismantling for Rs.250000/-As per policy the machine was

insured for Rs.945000/-. As, no repairs were undertaken; calculating the claim on repair

basis inclusive of labour charges will be wrong one. Therefore, it will be just and

proper to calculate the complainant’s claim by deducting the applicable depreciation

and the salvage value from the insured value. As follows:                     Insured Value (IDV)              Rs.945000/-                    Less Depreciation(15%)       Rs.141750/-                                                                         Rs.803250/-                     Less Salvage Value             Rs.250000/-                    Net loss payable:                            Rs.553250/-        

12.   Therefore, we are of considered view that, there is deficiency in service on part of

Petitioner/OP who repudiated the claim. Accordingly, we modify the order of State

Commission of that OP the insurance company directed to pay Rs.553250/- instead of

738500.76/- with interest @ 9% per annum from the 4/4/2006 i.e. the date of

repudiation till payment. OP is further directed to pay Rs.10,000/- as litigation charges.

This order should be complied within 45 days otherwise it will carry interest of 9% p.a.

till the payment.     …..…………………………

(J. M. MALIK, J.)PRESIDING MEMBER

                          .…..…………………………(Dr. S. M. KANTIKAR)

                MEMBER

Mss/7-8

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION   PETITION     NO. 2024 OF 2013 (From the Order dated 31.1.2013 in Appeal No. 1315/2010 of Punjab State Consumer Disputes Redressal Commission, Chandigarh)  M/s Shiv Confectionary House Though its Sole Proprietor Shri Jagdish Kumar Amloh Road Mandi, Gobindgarh Punjab.

 Petitioner  Versus 1. Bajaj Allianz General Insurance Co. Through its incharge Feroz Gandhi Market Ludhiana Punjab. 2. HDFC Bank Through its  Manager Incharge Mandi, Gobindgarh Punjab

RespondentsBEFORE:                   HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

       HON’BLE MR. SURESH CHANDRA, MEMBER 

For the Petitioner                           :              Shri Ram Ekbal Roy, Advocate                                                                            Pronounced   on :   22 nd     August, 2013   O R D E R

 PER SURESH CHANDRA, MEMBER

 

The petitioner who is the original complainant in this case has filed this revision petition

challenging the order dated 31.1.2013 passed by the Punjab State Consumer

Disputes RedressalCommission, Chandigarh in FA No.1315 of 2010  whereby learned State

Commission allowed the first appeal filed by respondent No.1/opposite party No.1 and set aside

the order dated 23.4.2010 passed by learned District

Consumer Redressal Forum, Fatehgarh Sahib in complaint No.88-A. The District Forum vide its

order had  allowed the complaint of the petitioner. By  itsimpugned order in appeal, the State

Commission reversed it by holding that it is proved that the premises where the fire took place

were not covered under the policy and hence the claim of the petitioner was rightly repudiated by

respondent No.1. Respondent No.2 is HDFC Bank which was OP No.2 before the District

Forum.

2.         Briefly put, the facts of this case which are relevant for disposal of this revision petition

are that the petitioner had obtained a cash credit limit from respondent No.2 Bank against the

stock and the entire stock of the petitioner was hypothecated with respondent No.2 Bank. It was

pleaded that respondent No.2 Bank had arranged one insurance policy from respondent No.1

insurance co. w.e.f. 26.4.2008 to 25.4.2009 covering the stock of the petitioner hypothecated

with respondent No.2. A fire broke out at the premises of the petitioner on 31.10.2008 and the

stock of the premises got damaged. The petitioner lodged claim with respondent No.1 for Rs.11

lakhs which came to be repudiated by the respondent insurance co. on the ground that the

location where the stock was kept and where the fire took place was not covered under the

insurance policy. According to the complainant/petitioner, the respondent No.2 Bank

had given  the cash credit limit against the stock stored in the premises where the fire broke up

and thus the stock was  clearly insured. It was also pleaded that the shop which the respondent

insurance co. is supposed to have insured is not capable of holding the stock of the value of

Rs.16 lakhs. It could hold stocks worth only Rs.2 lakhs. Since the claim was repudiated, the

petitioner filed a consumer complaint before the District Forum alleging deficiency in service on

the part of respondent No.1 seeking  directions to pay a sum of Rs.11 lakhs along with interest @

18% p.a. from 31.10.2008 besides cost and compensation.

3.         Upon notice, the respondents filed their written statement and contested the complaint.

Respondent No.1 pleaded that the liability of the insurance co. shall be as per the terms and

conditions of the policy as agreed to by the parties only if the property insured described in the

schedule, or any part of such property,  is destroyed by any of the specified perils during the

period of insurance mentioned in the schedule. Admitting the incident of fire having taken place

and also receiving intimation about it, the contention of the respondent insurance co. was that the

location where the stock damaged by the fire was kept was not covered by the insurance policy

and as such the insurance co. would not be liable to accept the claim and hence dismissal of the

complaint was prayed. Respondent No.2 Bank prayed that the complaint be dismissed qua the

respondent Bank because it had given only cash credit limit against the stock but there is no

liability of the bank and hence it cannot be burdened with any compensation. The parties

adduced evidence in support of their contentions and after going through the pleadings and the

material placed before it, the District Forum allowed the complaint of the petitioner  by directing

respondent No.1/opposite party No.1 to pay an amount of Rs.7,42,000/- with interest @ 7% from

the date of filing of the complaint till its realization. On appeal filed by the respondent insurance

co., the State Commission reversed the  order of the District Forum and dismissed the complaint.

4.         The short issue which has arisen before us for our consideration is as to whether the claim

of the petitioner in respect of damage to the stock in fire stored at the location not covered by the

insurance policy can be allowed.

5.         We have heard learned counsel Shri Ram Ekbal Roy, Advocate  for the petitioner and

perused the record.

 

6.         Learned counsel has submitted that the State Commission failed to appreciate that the

contention of the respondent/opposite party regarding non-covering of the premised is not

tenable. He pointed out that the State Commission should have appreciated that the shop which

the respondent No.1 purports to have insured is not capable of holding the stock to the tune of

Rs.16 lakhs. He further submitted that the State Commission also ignored the fact that the

respondent bank had given the limit against the stock stored in the premises where the fire broke

out and thus the stock was clearly insured and hence the allegation of the insurance co. against

the petitioner in this regard was false. To support his contention, he submitted that monthly

statement of the stock was also given to the respondent bank with regard to the stock in question.

He, therefore, contended the premises insured was actually “M/s Shiv Confectionary

House Amloh Road, Mandi,Gobindgarh” and the fire which broke out in the premises damage

the goods therein and hence the claim should have been admitted by the State Commission.

 

7.         We have given our anxious thought to the submissions of learned counsel. We may note

that the incident of fire and the assessment of loss on account of this fire as reported by the

surveyor are not under dispute. The  main ground on which the State Commission has reversed

the finding of the District Forum is that under the policy in question, a copy of which is placed at

page 46 of the paper-book, only the shop of the petitioner at Amloh Road, Mandi Gobindgarh,

District Fetehgarh Sahib was covered by the insurance policy. In view of this, the State

Commission allowed the appeal because it found that the location of the stock which got

damaged in the fire was different from the one covered by the policy. Perusal of the policy

indicates that the location description of the covered place is mentioned in the following terms:-

   “Shop    

   AMLOH ROAD, MANDI GOBINDGARH, DIST. FETEHGARH SAHIB (PUNJAB)”

8.         The plea of the respondents Insurance Co. to the effect that only the shop

at Amloh Road, Mandi Gobindgarh, Dist. Fetehgarh Sahib is covered by the insurance policy is

further corroborated by the statement made by the respondent Bank to which the petitioner was

furnishing the stock statements because in these stock statements there was  no mention of

location of the stock made by the petitioner. No evidence is put up by the petitioner to dispute or

contradict this aspect. In view of these aspects, the State Commission,  relying on the ratio of

judgements of the Apex Court in the cases of Vikram Greentech (I) Ltd. & Anr. Vs. New India

Assurance Co. Ltd. [II (2009) CPJ 34 (SC) and General Assurance Society

Ltd. Vs. Chandumull Jain &Anr. [AIR 1966 State Commission 1644], accepted the appeal and

dismissed the complaint by its impugned order.

9.         We agree with the view taken by the State Commission. As stated above, the location

description of the place covered does indicate that it is the shop

at Amloh Road, Mandi Gobindgarhwhich is covered and not any other place. The plea of the

petitioner regarding the damaged stocks being part of the stock statements regularly submitted to

the respondent Bank cannot provide any relief to the petitioner because  the respondent Bank

itself has clarified that the stock statements did not indicate the location of the stocks covered by

the statements. We may note that even if it is accepted for the sake of arguments that location

was mentioned in the statements submitted by the petitioner to the OP bank, this by itself cannot

entitle the petitioner to get the amount of his claim unless it is established that the stock damaged

was stored at the place covered by the policy.  In the circumstances, the view taken by the State

Commission is in line with the law laid down by the Apex Court. The Apex Court in the case

of Vikram Greentech (I) Ltd. & Anr.(supra) has held thus:-

“16. An insurance contract, is a species of commercial transactions and

must be construed like any other contract to its own terms and by itself. In

a contract of insurance, there is requirement of uberimma fides i.e. good

faith on the part of the insured. Except that, in other respects, there is no

difference between a contract of insurance and any other contract.

17. The four essentials of a contract of insurance are, (i) the definition of

the risk, (ii) the duration of the risk, (iii) the premium and (iv) the amount

of insurance. Since upon issuance of the insurance policy, the insurer

undertakes to indemnify the loss suffered by the insured on account of the

risks covered by the insurance policy, its terms have to be strictly

construed to determine the extent of liability of the insurer.

18. The endeavour of the court must always be to interpret the words in

which the contract is expressed by the parties. The court while construing

the terms of policy is not expected to venture into extra liberalism that

may result in re-writing the contract or substituting the terms which were

not intended by the parties. The insured cannot claim anything more than

what is covered by the insurance policy.”

(Emphasis provided by us)

 

 

10.       In the other case of General Assurance Society Ltd. (supra) also the Apex Court has made

similar observations which may be reproduced below:-

“……..In interpreting documents relating to a contract

of  insurance, the duty of the court is to interpret the words in which

the contract  is expressed by the parties because it is not for the

court to make a new contract, however reasonable, if the parties

have  not  made  it  themselves……………”

11.       In view of the aforesaid discussion and the settled position in law, we do not find any

infirmity in the impugned order which would call for our interference with it under section 21(b)

of the C.P. Act, 1986 which confers very limited powers on this Commission while exercising

its revisional jurisdiction under this section. We, therefore, dismiss the revision petition

in limine with no order as to costs. 

 

……………Sd/-……..………..     (AJIT BHARIHOKE, J.)      PRESIDING MEMBER

                                                               ……………Sd/-….……………

(SURESH CHANDRA)MEMBER

SS/

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.   2668 OF 2011 (From the order dated 03.06.2011 in First Appeal No. 224/2010of Rajasthan State Consumer Disputes Redressal Commission) TATA AIG General Insurance Co. Ltd. 104, Brij Anukampa, Ashok Marg, C-Scheme, Jaipur Rajasthan

                                                        ...  Petitioner(s) VersusNarender Kumar s/o Shri Ganesh Verma r/o Near Railway Line, Naya Bans Takarda, Tehsil Chowmud District JaipurRajasthan

                                                        … Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s)   Mr. K.L. Nandwani, Advocate

 For the Respondent   NEMO 

PRONOUNCED   ON :   22 nd   AUGUST     2013 O R D E R PER DR. B.C. GUPTA, MEMBER         This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 by the petitioner against the impugned order dated 03.06.2011 passed by the Rajasthan

State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.

224/2010, ‘TATA AIG General Insurance Co. Ltd. versus Narender Kumar’ vide which, while

dismissing appeal, the order dated 27.11.2009, passed by the District Consumer Disputes

Redressal Forum, Jaipur in consumer complaint no. 888/2009, allowing the complaint was

upheld. 

 

2.     Brief facts of the case are that the complainant Narender Kumar insured his cow for a sum

of Rs.25,000/- under the scheme launched by the petitioner/OP, Tata AIG General Insurance Co.

in the month of February 2008.  The cow was tagged vide no. B-34779/-.  The said cow got sick

on 4.09.2008, but could not recover and expired on 06.09.2008.  The complainant

informed Mr. Lalit Sharma, an employee of the OP and handed over tag no. B-34779 to him.  He

also filed his claim along with the documents, but despite many telephone calls and personal

visits, the claim was not sanctioned.  The complainant filed a complaint before the District

Forum.  The District Forum vide their order dated 27.11.2008, allowed the complaint and

ordered the OP to pay a sum of Rs.25,000/- along with Rs.2,000/- as damages for mental agony

and Rs.1,000/- as cost of litigation.  An appeal against this order was dismissed by the State

Commission vide their order dated 03.06.2011.  The present revision petition has been filed

against this order.

 3.     At the time of hearing before us, learned counsel for the petitioner contended that the

impugned order dated 03.06.2011 was not a speaking order and seems to have been passed

without due application of mind.  It was the duty of the State Commission to have analysed the

facts of the case and then give reasons for coming to their conclusion.  The matter, therefore,

required a re-look by the State Commission and their plea should be properly heard and decided.

 

4.     An examination of the order passed by the State Commission reveals that the said

Commission has not given any reasons for coming to the conclusion for dismissing the

appeal.  The order passed by the State Commission reads as follows:-“Heard arguments.  Records perused.  Keeping in view the facts and circumstances of the case, we do not find any necessity to interfere with the order dated 27.11.2009 passed by the District Forum in complaint No. 888/2009 and thus the appeal of the appellant is liable to be dismissed.  Resultantly, the order dated 27.11.2009 passed by the District Forum in complaint No. 888/2009 is hereby up-held and appeal of the appellant is hereby dismissed.”

 5.     Under the Consumer Protection Act, 1986, the right of appeal has been given under section

15 of the Act.  It is the duty of the appellate authority to provide proper hearing to the parties in

question and then give cogent reasons after analysing the facts and circumstances of the case for

coming to a conclusion.  In the present case, no such reasons have been advanced by the State

Commission and the appeal has been dismissed without discussing the merits of the case.

 

6.     In the light of these facts, there is no alternative but to set aside the order passed by the State

Commission and we order accordingly. The revision petition is allowed and the case is remanded

to the State Commission with the directions that the parties should be heard again and a detailed

speaking order passed after giving detailed reasons for coming to the conclusion.  There shall be

no order as to costs.

Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER  Sd/-(DR. B.C. GUPTA)MEMBERRS/ 

 

 

 

         

 

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        REVISION PETITION NO.   2770 OF 2006 (From the order dated 23.06.2006 in Appeal No.226 of 2005 of the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur) 1.  Smt. Laxmania Prajapati     W/o Late Shri Kailash Prajapati 2.  Shri Shesh Kumar 3.  Master Gore Lal      Both Sons of Late Shri  Kailash Prajapati All R/o Karanji, PO: Karanji Tehsil-Surajpur, Sarguja, Chattisgarh.

                                            … Petitioners/Complainants                                          

Versus

1. The Oriental Insurance Co. Ltd. Div. Office, Behind Normal School, Bilkaspur (Chhatisgarh) And also at: The Oriental Insurance Co. Ltd. Div. Office 1, Madina Manzil, Jail Road, Raipur, Chattisgarh 2.  Sub Area Manager S.E.C.L. Bhatgaon, P.O. Bhatgaon, Tehsil Surajpur, Sarguja, Chhattisgarh.

                                  … Respondents/Opp. Parties (OP) BEFORE      HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER     HON’BLE DR. B.C. GUPTA, MEMBER

 For the Petitioners           :       Mr. Mohd. Anis Ur. Rehman,

Advocate                                For the Respondents       :      NEMO

 PRONOUNCED   ON     23 rd   August,     2013   O R D E R  

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER          

This revision petition has been filed by the petitioners/Complainants against the order

dated 23.6.2006 passed by the State Consumer DisputesRedressal Commission, Chhattisgarh (in

short, ‘the State Commission’) in Appeal No. 226/05  – Oriental Ins. Co. Ltd.

Vs. Kailash Prajapati   by which, while allowing appeal, order of District Forum allowing

complaint was set aside. 

2.      Brief facts of the case are that complainant/petitioner Kailash Prajapati was an employee

OP No. 2/Respondent No.2 and joined group Janata accident personal policy issued by

OP-1/Respondent No.1 for Rs.2,50,000/-.  Premium was deducted from complainant’s salary on

31.10.2001.  Complainant sustained head injury in an accident and lost one eye. Complainant

lodged claim with OPs which was repudiated by OP No.1. Alleging deficiency on the part of

OPs, complainant filed complaint before District Forum. OPs contested complaint and OP No. 1

submitted that intimation of accident was given to it belatedly on 8.3.2002.  OP No. 2 submitted

that no intimation of accident was given to it and prayed for dismissal of complaint. Learned

District forum after hearing both the parties, allowed complaint and directed OP No. 1 to pay

Rs.2,50,000/- along with interest and cost of Rs.1,000/-. OP No. 1 filed appeal before the State

Commission and learned State Commission vide impugned order allowed appeal and dismissed

complaint against which, this revision petition has been filed. During pendency of revision

petition, petitioner- Kailash Prajapati died and his wife and children being legal representative

of Kailash Prajapati were taken on record. 

3.      None appeared for the respondent even after service.  Heard learned Counsel for the

petitioner who submitted that as deceased  Kailash Prajapati was covered by the insurance policy

and lost one eye in the accident, District Forum rightly allowed complaint and learned State

Commission has committed error in allowing appeal; hence, revision petition be allowed and

impugned order be set aside. 

4.      Perusal of record clearly reveals that complainant Kailash Prajapati was covered by

group Janata personal insurance policy finalised between OP No. 1 & 2 for Rs.5,00,000/- and

complainant’s risk was covered to the extent of Rs.2,50,000/- on loss of one limb or one eye. 

5.      Perusal of disability certificate issued by District Medical Board clearly reveals

that Kailash Prajapati sustained 30% disability in his eye and complainant could not prove the

fact that he lost complete vision in one eye due to accident. As per terms and conditions of the

policy, Kailash Prajapati was entitled to benefits of the insurance coverage only on loss of one

eye, whereas Kailash Prajapati’s loss of vision was only 30% and as such, he was not entitled to

get any insurance benefits under the policy.  Learned Counsel for the petitioner could not draw

our attention to any other medical report on account of which, it can be held

that Kailash Prajapati suffered complete loss of vision in one eye and in such circumstances;

order passed by learned State Commission is in accordance with law, which does not call for any

interference.   

6.      Consequently, revision petition filed by the petitioner is dismissed with no order as to

costs. 

                                     ..………………Sd/-……………( K.S. CHAUDHARI, J) PRESIDING MEMBER  ..……………Sd/-………………( DR. B.C. GUPTA ) MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        REVISION PETITION NO. 67 OF 2011(From the order dated 25.08.2010 in Appeal No.136 of 2010 of the State Consumer Disputes Redressal Commission, U.T. Chandigarh)                         National Insurance Company Ltd. Delhi Regional Office – 1, Jiwan Bharti Building Tower II Level-IV,124, Connaught Circus New Delhi – 110001 Also at National Insurance Co. Ltd. Divisional Office No. 1, 2nd Floor, SCO No.133-134-135 Sector 17-C, Chandigarh

                                        … Petitioner/Opposite Parties (OP)                              VersusSanjeev Kumar S/o Sh. Tek Chand R/at House No. 1122 Sector 49-B Pushpac Complex Chandigarh

                                        … Respondent/Complainant BEFORE     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner           :        Mr. Hetu Arora Sethi, Advocate                                For the Respondent       :        In person

 PRONOUNCED ON           23 rd   August,     2013  O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

This revision petition has been filed by the petitioner/OP against the order dated

25.08.2010 passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh (in

short, ‘the State Commission’) in Appeal No. 136/10 – Sanjeev Kumar Vs. National Ins. Co. Ltd.

by which, while allowing appeal, order of District Forum dismissing complaint was set aside. 

2.      Brief facts of the case are that complainant/respondent’s car No. CH04-B-4076 was insured

by OP/respondent for one year commencing from 21.6.2008 to 20.6.2009.  Car met with an

accident on the intervening night of 20/21.8.2009 and vehicle was damaged in the accident.  As

compromise was entered into between the complainant and other offending vehicle, no FIR was

lodged, but intimation was given to the OP. OP appointed surveyor, but claim of the complainant

was repudiated on the ground that licence of the complainant was not valid for car/jeep who was

driving vehicle at the time of accident.  Alleging deficiency on the part of OP, complainant filed

complaint before District Forum. OP contested complaint and submitted that on verification, the

licence was not found valid for driving car; hence, claim was rightly repudiated and prayed for

dismissal of the complaint.  Learned District Forum after hearing both the parties dismissed

complaint and gave opportunity to the complainant to agitate the matter before civil court.   On

appeal filed by the complainant, learned State Commission vide impugned order allowed

complaint and directed OP to make payment of Rs.55,875/- being 75% of the total claim on sub-

standard basis against which this revision petition has been filed. 

3.      Heard learned Counsel for the petitioner and respondent in person finally at admission

stage and perused record. 

4.      Learned Counsel for the petitioner submitted that as complainant was not possessing

driving licence for driving car at the time of accident, learned District Forum rightly dismissed

complaint, but learned State Commission has committed error in allowing complaint; hence,

revision petition be accepted and impugned order be set aside.  On the other hand, respondent

submitted that his driving licence is valid for driving Scooter/motor cycle/car/jeep and order

passed by learned State Commission is in accordance with law; hence, revision petition be

dismissed.  

5.      The short question to be decided in this revision petition is whether complainant was

possessing valid driving licence for driving car at the time of accident or not.  Petitioner has filed

copy of duplicate licence issued by Licensing Authority, Chandigarh in favour of complainant on

11.8.1997 and his Licence No. is 290501.  Complainant himself made certain queries from

Licensing Authority, Chandigarh vide application dated 3.2.2010 regarding verification of his

aforesaid licence issued on 11.8.1997 and Licensing Authority informed to the complainant on

11.2.2010 that his licence was only for scooter/motor cycle.  It appears that OP also obtained

verification certificate of complainant’s driving licence from Licensing Authority and Licensing

Authority vide letter dated 17.9.2009 apprised that licence no. 290501 dated 11.8.1997 issued in

the name of Sanjeev Kumar has been issued only for scooter/Motor cycle.  In such

circumstances, it cannot be held that disputed driving licence was granted for driving car/jeep

also.  Respondent during the course of arguments submitted that he has not forged driving

licence, but verification certificate issued by the Licensing Authority and reply to queries of

complainant made by Licensing Authority based on their record can also not be disputed and in

such circumstances, it can be held that complainant was not having licence for driving car/jeep

on the date of accident.    

6.      When complainant was not possessing valid driving licence at the time of accident,

OP/petitioner has not committed any deficiency in repudiating claim in the light of judgment of

this Commission in III (2008) CPJ 191 (NC) – United India Insurance Company Vs. Arjun

Kumar, III (2010) CPJ 256 (NC) –National Insurance Company Vs. Sansar Chand and as held by

Hon’ble Apex Court in II (2006) CPJ 8 (SC) – National Insurance Co. Ltd. Vs. Kusum Rai &

Ors. 

7.      Learned State Commission has allowed claim on non-standard basis which is not in

accordance with law in the light of aforesaid judgements.  If complainant was not possessing

valid driving licence at the time of accident, the complainant is not entitled to get any

compensation in respect of damages to the vehicle even on sub-standard basis. 

8.      Consequently, revision petition filed by the petitioner is allowed and impugned order dated

25.8.2010 passed by leaned State Commission in Appeal No. 136 of 2010 – Sanjeev Kumar Vs.

Natinal Ins. Co. Ltd. is set aside and order of District Forum dated 23.2.2010 is affirmed.                                     ..………………Sd/-……………

( K.S. CHAUDHARI, J) PRESIDING MEMBER ..……………Sd/………………( DR. B.C. GUPTA ) MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        REVISION PETITION NO.   4030 OF 2012 (From the order dated  07.08.2012 in Appeal No.12/2012  of the State Consumer Disputes Redressal Commission, Haryana)1.   Lucky Mittal 2.  Rajnish Mittal 

Both S/o Sh. Nathi Ram R/o House No. 67, Ward No.3 Civil Hospital, LadwaTehsil Thanesar, Distt. Kurukshetra (Haryana)

                       … Petitioners/Complainants                                                   VersusOriental Insurance Company Ltd. Regional Office LIC Building, 2nd Floor, Jagadhri Road, Ambala Cantt., (Haryana) (Through its Regional Manager)

               …Respondents/Opp. Parties (OP) BEFORE      HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioners           :       Mr. Anil Mittal, AdvocateFor the Respondent           :   Mr. Rajesh K. Gupta, Advocate 

PRONOUNCED ON         23 rd   August,     2013  O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER          

This revision petition has been filed by the petitioners/complainants against the order

dated 07.08.2012 passed by the State Consumer DisputesRedressal Commission, Haryana (in

short, ‘the State Commission’) in Appeal No. 12 of 2012  – The Oriental Ins. Co. Ltd. Vs. Lucky

Mittal & Anr. by which, while allowing appeal, order of District Forum allowing complaint was

set aside. 

2.      Brief facts of the case are that complainant/petitioner got his vehicle Toyata Qualis HR-51-

J-0537 insured from OP/respondent for a period of one year commencing from 15.7.2006 to

14.7.2007. On the intervening night of 15/16.4.2007, vehicle was stolen and FIR was lodged.

Intimation was given to OP. Required documents were submitted to OP, but OP repudiated

claim.  Alleging deficiency on the part of OP, complainant filed complaint before District forum.

OP resisted complaint and submitted that as vehicle has been recovered by police, the claim was

not payable and prayed for dismissal of complaint. Learned District Forum after hearing both the

parties, allowed complaint and directed OP to pay Rs.2,00,000/- as value of the vehicle and

Rs.5,000/- for mental harassment along with 6% p.a. interest. Appeal filed by the OP was

allowed by learned District Forum vide impugned order against which, this revision petition has

been filed.

3.      Heard learned Counsel for the parties at admission stage and perused record. 

4.      Learned Counsel for the petitioner submitted that first complaint was filed within

limitation; even then, learned State Commission has committed error in allowing appeal and

dismissing complaint on the ground that complaint was time barred; hence, revision petition be

allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent

submitted that order passed by learned State Commission is in accordance with law, which does

not call for any interference; hence, revision petition be dismissed. 

5.      Perusal of record reveals that insured vehicle was stolen on 15/16.4.2007 and claim was

repudiated by OP on 3.5.2008. Complainant filed first complaint on 23.5.2008.  Complainant

moved application before District forum on 27.9.2010 and prayed that on technical grounds he

wants to withdraw the complaint and he may be permitted to file fresh complaint. On the same

day, learned District forum dismissed complaint as withdrawn in view of the submission of

Counsel for the complainant.  Later on, complainant filed present complaint on 23.11.2010,

which was held to be barred by limitation by learned State Commission. 

6.      Learned Counsel for the petitioner submitted that as first complaint was filed within period

of limitation and that complaint was withdrawn with permission to file fresh complaint; hence,

subsequent complaint filed on 23.11.2010 is well within limitation.  On the other hand, learned

counsel for the respondent submitted that as per order dated 27.9.2010 permission was not

granted to the complainant to file fresh complaint; hence, subsequent complaint filed on

23.11.2010 cannot be constituted a complaint filed with permission. 

7.      Learned Counsel for the petitioner placed reliance on AIR 2009 SC 806

– Vimlesh   Kumari   Kulshrestha  Vs. Sambhajirao   &   Anr . in which it was observed as under:“An application for withdrawal of suit was made, seeking liberty to file a fresh suit. The order passed by the court was that 'The application is, therefore, allowed while permitting the plaintiff to withdraw the suit'. It was held that this should be construed as an order also granting liberty, as prayed. The court cannot split the prayer made by the applicant."

 

8.      In the light of aforesaid citation, it becomes clear that District Forum allowed complainant

to withdraw the complaint and impliedly permitted complainant to file fresh complaint and

subsequent complaint dated 23.11.2010,  in compliance to order dated 27.9.2010 cannot be

treated a fresh complaint as first complaint was filed on 23.5.2008 well within limitation from

the date of repudiation and learned State Commission has committed error in allowing appeal

and dismissing complaint being barred by limitation. 

9.      In the light of aforesaid discussion, revision petition is to be allowed and matter has to be

remanded back to learned State Commission for deciding appeal on other grounds submitted in

Memo of Appeal. 

10.    Consequently, revision petition filed by the petitioner is allowed and impugned order dated

7.8.2012 passed by the learned State Commission in Appeal No. 12 of 2012 – Lucky Mittal

& Anr. Vs. Oriental Ins. Co. Ltd. is set aside and matter is remanded back to learned State

Commission to decide the matter fresh after giving an opportunity of being heard to both the

parties treating complaint within limitation. 

11.    Parties are directed to appear before Haryana State Consumer

Disputes Redressal Commission at Panchkula on 23.9.2013 

                                     ..……………Sd/-………………( K.S. CHAUDHARI, J) PRESIDING MEMBER  ..…………Sd/-…………………( DR. B.C. GUPTA ) MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION  NO. 2207  OF  2012(Against the order dated 27.04.2012 in F.A. No. 1214/2010of the State Commission Punjab, Chandigarh) 

SBI Life Insurance Co. Ltd. Regd. Office situated at State Bank Bhawan Corporate Centre, Madame Cama Road Nariman Point, Mumbai – 400021

........ Petitioner  Vs.

Ashwani Kumar Juneja s/o Shri Narinder Singh r/o Gali Chaudhrian Wali Fazilka, District Ferozepur Punjab

......... Respondent BEFORE:

 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

 HON’BLE MR.SURESH CHANDRA, MEMBER   

For the Petitioner             :    Mr.Rakesh Malhotra, Advocate

For the Respondent         :    Mr. Prabhoo Dayal Tiwari, Advocate

PRONOUNCED   ON :       26 th   AUGUST, 2013

ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

1.         This revision is directed against the order of the State Commission, Punjab, Chandigarh

dated 27.12.2004 by which the State Commission dismissed the appeal preferred by the

petitioner / opposite party with cost of Rs.5000/- against the order of the District Forum to the

following effect:

“So in view of the above noted facts, the present complaint is allowed and the opposite party is directed to pay to the complainant the sum assured i.e. Rs.1,00,000/- (Rupees one lac only) alongwith interest at the rate of 6% per annum from the date of complaint i.e. 24.06.2009 till realization.  The opposite party is further directed to pay to the complainant a sum of Rs.1000/- (Rupees One Thousand only) as litigation expenses.  Orders be complied within a period of thirty days from the date of receipt of a copy of this order.  File be consigned to record room”.

 

2.         The relevant facts for the disposal of this revision petition are that complainant /

respondent Ashwani Kumar filed a consumer complaint under 12 of the Consumer Protection

Act, 1986 against the petitioner alleging that he obtained SBI Life Insurance Policy from the

petitioner commencing from 08.11.2004.  The date of the maturity was 08.11.2019. As per the

terms and conditions of the policy, the respondent / complainant was provided basic life cover

for Rs.1.00 lac besides the critical illness rider and accidental death and accident total disability

rider for Rs.1.00 each. The critical illness rider also included the risk benefit from heart attack.  It

is alleged that the respondent suffered a heart attack in January 2009 and angiography was done

on 05.01.2009 which confirmed 95 % & 50% blockage in Left Axis Deviation (LAD) and Left

Circumflex Artery (LCX).  Thus, on the advice of the doctors, the respondent underwent

coronary angioplasty on 09.01.2009.  He spent a sum of Rs.3.00 lac on the treatment. The

respondent filed the claim for Rs.1.00 lac under critical illness clause of the insurance

policy.  The claim was repudiated by the petitioner on the ground that angioplasty and / or any

other intra-arterial procedures were excluded from the insurance cover.  Claiming the repudiation

to be deficient in service, the petitioner approached the District Forum.

3.         The petitioner in its written reply claimed that there was no deficiency in service and

insurance claim of the respondent / complainant was rightly repudiated.

4.         The District Forum on consideration of evidence took the view that angioplasty treatment

taken by the respondent / complainant was covered under the critical illness clause of the

insurance policy.  As such, holding the petitioner to be deficient in service, allowed the

complaint and passed the above noted order.

5.         Being aggrieved of the order of the District Forum, the petitioner preferred an appeal

before the State Commission Chandigarh.  The State Commission concurred with the order of

the District Forum and dismissed the appeal with the following observations:

“We have considered this submission also, but we are not in agreement with the argument of the learned counsel for the appellant, because critical illness rider was obtained by the respondent vide proposal Ex.C-5 and at the time of accepting the proposal, no such condition was mentioned in the proposal and the District Forum has rightly observed that the critical illness of heart attack and other diseases are covered and not the procedure. The procedure to be adopted to cure a particular disease is the judgment of the doctor and not of the patient or the assured. The Coronary Artery Bypass Surgery is also one of the methods to remove the blockage and Angioplasty is also one of the methods to remove the blockage by introducing the stent. A prudent man will not understand the medical procedures to be followed by the doctor at the time of taking the policy, but the policy is taken to cover critical illness which as per the policy, included kidney problems, cancer etc., including the heart attack. The respondent in the present case suffered heart attack and took treatment from the hospital, having specialization to cure this illness and the procedure is not covered under the policy, but it is the disease. In case, the appellant insurance company wanted to take the benefit of the clause of procedures, then it was incumbent upon the appellant to minutely explain the details of the policy and the procedures which are excluded, but there is no such evidence that the  procedures were also explained. A prudent man takes the policy and pays the premium, believing that in the event of any critical illness, he will be covered and the medical expenses will be borne by the insurance company, but the insurance company, on technical and inhuman grounds, tried to repudiate the claim by taking shelter of one clause or the other, which amounts to cheating the innocent public under the garb of insurance cover”.

           

6.         Shri Rakesh Malhotra, Advocate, learned counsel for the petitioner has contended that the

orders of the fora below are not sustainable in law because the orders are based on wrong reading

of the insurance contract between the parties.  Expanding on the argument, learned counsel for

the petitioner has taken us through the critical illness benefit clause dealing with the heart disease

and submitted that the aforesaid clause specifically exclude the angioplasty and / or any

other intrA arterial procedure from the insurance cover.  It is argued that since the angioplasty

procedure is specifically excluded from the insurance cover, both the foras below have exceeded

their jurisdiction in allowing the complaint of the respondent.

7.         Shri R.K.Tripathi, learned counsel for the respondent on the contrary has argued in

support of the impugned order and contended that the approach adopted by the State

Commission in the above noted observations cannot be faulted.  He has thus urged us to dismiss

the revision petition.

8.         The controversy which needs determination in this revision petition is whether or not the

claim of the complainant / respondent is covered under the critical illness rider of the insurance

policy?.  In order to find answer to the above question, it would be useful to have a look on

relevant critical illness rider clause in the insurance policy which is reproduced thus”

“Critical Illness Benefits:

          The following benefit is available provided Critical Illness Rider is opted for and this rider is in force:

          If at any time after six months from the Date of Commencement of Risk and  before the expiry of the rider term and the Life Assured is diagnosed by any of the Critical Illness /Diseases as defined below, and the same is proved to the satisfaction of the Company, the Company agrees to pay the Sum Assured under this rider.  Upon payment of the rider Sum Assured, the liability of the Company to the policy holder shall extinguish all other rights, benefits and interests to the policy holder or whomsoever it may belong under the Policy in respect of Critical Illness.

There is no benefit payable in case of any event other than the one mentioned above.

Once a claim under this rider is accepted the Life Assured exists from all other riders (viz. term assurance rider, accidental death and TPD rider and premium waiver benefit rider) which she / he has availed.

Critical Illness / disease:

a.       xxxxxxxxxxxxxxxxxx.

b.       Coronary Artery (Bypass) Surgery:

The actual undergoing of open chest surgery for the correction of  two or more coronary arteries, which are narrowed or blocked, by coronary artery bypass graft.  The surgery must have been proven to be necessary by means of

coronary angiography.  Angioplasty and / or any other intro-arterial procedure are excluded from the cover.

 c.      xxxxxxxxxxxxxxxxx.

d.       xxxxxxxxxxxxxxxxx.

e.       xxxxxxxxxxxxxxxxx.

f.        xxxxxxxxxxxxxxxxx”.

9.         On reading of the above, we find that as per the insurance contract between the parties,

Coronary Artery Bypass surgery forms part of the critical illness / diseases covered under the

insurance policy.  However, on careful reading of the clause under the  heading ‘critical illness /

diseases (b)’, we find that angioplasty and / or any other intra-arterial procedure are specifically

excluded from the cover.  Admittedly, in the instant case, the respondent / complainant had

undergone angioplasty which is excluded from the insurance cover.  Therefore, in our

view, the impugned order of the fora below in favour of the complainant / respondent are based

upon the incorrect reading of the relevant condition of the insurance contract.  Thus, we are of

the view thatfora below have exceeded their jurisdiction in allowing the complaint by misreading

the contract.  Accordingly, the impugned order of the State Commission as also the order of the

District Forum cannot be sustained.  Revision petition, is, therefore accepted and orders of

the fora below are set aside and the complaint filed by the respondent is dismissed.  No order as

to costs.

Sd/-                                                       ………………………….

     (AJIT BHARIHOKE, J)      ( PRESIDING MEMBER) 

Sd/-                                                                  …………………………                                                        (SURESH CHANDRA)                                                                            MEMBERAm/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO.   2313 OF 2008 (From the order dated 06.02.2008 in Appeal No.854 of 2006 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

 

1. Life Insurance Corporation of India Branch Manager Jeevan Jyoti, Sector- 5, Madra Road, Nohar, Hanumangarh 2. Life Insurance Corporation of India Divisional Manager Jeevan Prakash, P.O. Box 16 Jaipur Road, Bikaner Through Asstt. Secretary Northern Zonal Office, LIC Jeevan Bharti, Connaught Circus New Delhi

                                                      … Petitioner/Opposite Parties (OP)                    VersusSmt. Vinod Devi W/o Late Radhey Shyam Saharan R/o Barvali Village, Tehsil NoharDistt. Hanumangarh Rajasathan

                                                  … Respondent/Complainant 

BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER     HON’BLE DR. B.C. GUPTA, MEMBER

 For the Petitioners           :       Mr. Ashok Kashyap, Advocate                                For the Respondent       :        Mr. B.S. Sharma, Advocate

 

PRONOUNCED ON         27 th   August,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the petitioners/OP against the order dated

06.02.2008 passed by the Rajasthan State Consumer DisputesRedressal Commission, Jaipur (in

short, ‘the State Commission’) in Appeal No. 854/06 – LIC of India & Ors. Vs. Smt. Vinod Devi

by which, while dismissing appeal, order of District Forum allowing complaint was upheld. 

2.      Brief facts of the case are that complainant/respondent’s husband Radhey Shyam Saharan

now deceased obtained two LIC policies for a sum of Rs.25,000/- each on 15.12.2000.  On

account of non-payment of premium policies had lapsed but both the policies were revived on

6.10.2004 by RadheyShyam Saharan.  Radhey Shyam Saharan died on 16.11.2004 and

complainant preferred claim before OP/petitioner, but that was repudiated by OP through letter

dated 21.3.2005 on the ground that on the date of revival of the policies, a fresh declaration form

was submitted by Radhey Shyam Saharan and in that declaration he had stated that he was not

suffering from any kind of disease whereas he was suffering from the disease of cancer and had

taken the treatment. Alleging deficiency on the part of OP, complainant filed complaint

before District  Forum.  OP/Petitioner contested complaint and submitted

that Radhey ShyamSaharan was admitted in the hospital on 14.7.2004 and was  discharged on

19.7.2004 and Malignant round cell tumor was found and chemotherapy was recommended

and Radhey Shyam Saharan was suffering from cancer at the time of revival of policy; hence,

denied deficiency and prayed for dismissal of complaint. Learned District Forum after hearing

both the parties, allowed complaint against which, appeal filed by the petitioner was dismissed

by learned State Commission vide impugned order against which, this revision petition has been

filed. 

3.      Heard learned Counsel for the parties and perused record. 

4.      Learned Counsel for the petitioner submitted that Learned Counsel for the petitioner

submitted that at the time of revival, the assured suppressed fact of undergoing treatment and

also falsely answered the questions in personal statement regarding his health; even then, learned

District Forum committed error in allowing complaint and learned State Commission further

committed error in dismissing appeal; hence, revision petition be allowed and order of State

Commission be set aside and complaint be dismissed. 

5.       On the other hand, learned Counsel for the respondent submitted that deceased was never

admitted in the hospital for more than a week; hence, order passed by learned State Commission

is in accordance with law, which does not call for any interference and revision petition be

dismissed. 

6.       It is admitted case of the parties that Radhey Shyam Saharan, deceased obtained two

insurance policies from the petitioner on 28.3.2000 and both the policies lapsed which were

revived on 6.10.2004 after submitting fresh declaration.  It is also

admitted that  Radhey Shyam Saharan died on 16.11.2004. It is also not disputed that as per

record of the hospital, Radhey Shyam Saharan remained in the hospital from 14.7.2004 to

19.7.2004 and as per record of SMS hospital, Malignant round cell tumor was found and

chemotherapy was recommended.

7.       Learned State Commission has rightly held that if the policy is revived, fresh declaration

form is filled by the insured, it amounts to fresh contract.

 

8.       It is also admitted position that deceased was not hospitalized for a week or more, but at

the time of revival of policy, Radhey Shyam Saharan declared his health to be good in the

personal declaration form which is apparently not correct because before about 3 months of

declaration, Radhey Shyam Saharan was admitted in SMS hospital and Malignant round

cell tumor was found and chemotherapy was recommended.  Thus, it becomes clear

that Radhey Shyam Saharan was suffering from cancer at the time of revival of policy and he has

given false declaration about his health.  In P.C.   Chacko   &   Anr . Vs. Chairman, Life Insurance

Corporation of India and Others – (2008) 1 SCC 321, Hon’ble Apex Court observed as under: 

Misstatement by itself is not material for repudiation of the policy unless the same is material in nature.  But, a deliberate wrong answer which has a great bearing on the contract of insurance, if discovered may lead to the policy being vitiated in law.  The purpose for taking a policy of insurance is not very material.  It may serve the purpose of social security but then the same should not be obtained with a fraudulent act by the insured. Proposal can be repudiated if a fraudulent act is discovered”.

 

9.       In the light of above observations, policy can be assailed on the ground of deliberate

wrong answers on material issues as per hospital record before revival. Radhey Shyam Saharan

was suffering from cancer and he was recommended chemotherapy and no such document has

been placed on record to prove the fact that after taking treatment of cancer, he was perfectly

healthy.  After deducting cancer, Radhey Shyam Saharan died within 4 months and in such

circumstances, it can very well be inferred that on account of cancer, Radhey Shyam Saharan

died. 

10.     As Radhey Shyam Saharan at the time of revival of lapsed insurance policies suppressed

material fact regarding Malignant round cell tumor and furnished false answers regarding his

health, petitioner has not committed any deficiency in repudiating claim and learned District

Forum committed error in allowing complaint and learned State Commission further committed

error in dismissing appeal and in such  circumstances, revision petition  is to be allowed. 

11.     Consequently, revision petition filed by the petitioner is allowed and impugned

order 06.02.2008 passed by the Rajasthan State Consumer

DisputesRedressal Commission, Jaipur  in Appeal No. 854/06 – LIC of India & Ors. Vs.

Smt. Vinod Devi is set aside and complaint is dismissed.  There shall be no order as to costs.                                                                                        

                                     ..………………Sd/-……………( K.S. CHAUDHARI, J) PRESIDING MEMBER 

..……………Sd/-………………( DR. B.C. GUPTA ) MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO. 2068 OF 2013 (From the order dated 02.04.2013 in Appeal No. 153/08 Haryana State Consumer Disputes Redressal Commission, Panchkula)With IA/3403/2013(For condonation of Delay) Satpal S/o Sh. Chhabil Dass R/o VPO Bhuna, Teh & Distt. Fatehabad

                           … Petitioner/Complainant                                                Versus1. United India Insurance Co. Ltd. Through its Deputy Manager, Regional Office, SCO No. 123-24, Sector 17-B, Chandigarh2. United India Insurance Co. Ltd. 75, Anaj Mandi, Fatehabad Through its Branch Manager3. United India Insurance Co. Ltd. Branch Apolo Chowk, Dr. Singla Wali Gali, Railway Road Narwana District Jind Through its Branch Manager4. United India Insurance Co. Ltd. Head Office 24 Winstant Road, Chennai through its General Manager

                  … Respondents/Opp. Parties (OP)                                        BEFORE  HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner      :  Mr. Deepak Aggarwal, Advocate PRONOUNCED ON       29 th   August,     2013  O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the Petitioner/Complainant against the order dated

21.09.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula

(in short, ‘the State Commission’) in Appeal No. 628/2012 – United India Ins. Co. Ltd. Vs.

Satpal by which, while allowing appeal, order of District Forum allowing complaint was set

aside. 

2.      Brief facts of the case are that complainant/petitioner’s vehicle bolero jeep HR-62-1761

was insured by OP/respondent for the period 5.9.2008 to 4.9.2009. Vehicle was stolen on

13.12.2008 and FIR was lodged on the same day with the Police Station and intimation was also

given to OP, but OP failed to settle the claim. Alleging deficiency on the part of OP, complainant

filed complaint with the District Forum.  OP contested complaint and submitted that complainant

informed OP on 15.1.2009, i.e. after more than 30 days from the alleged theft and has violated

terms and conditions of the policy.  It was further submitted that inspite of repeated letters,

petitioner did not supply relevant documents; so, claim was repudiated in August, 2009 and

prayed for dismissal of complaint.  Learned District Forum after hearing both the parties allowed

complaint against which, appeal filed by the OP was allowed against which, this revision petition

has been filed along with application for condonation of delay of 140 days. 

3.      Heard learned Counsel for the petitioner at admission stage and perused record. 

4.      In application for condonation of delay, learned Counsel for the petitioner submitted that as

petitioner was involved in FIR No.98/2000 under Sections 420, 467, 468, 471, 120-B IPC and

was in acute depression and was not in a fit state of mind, delay of 140 days occurred in filing

revision petition which may be condoned.  Learned Counsel for the petitioner submitted that

delay occurred due to involvement in false FIR which may be condoned and revision petition be

admitted. 

5.      Petitioner simply mentioned in the application for condonation of delay that he was falsely

implicated in FIR No. 98/2000 under Sections 420, 467, 468, 471, 120-B IPC, but he has not

filed copy of FIR or challan and has also not shown result of criminal case.  He has mentioned in

the application that FIR and detention of the petitioner  in custody is not a disputed fact, but

admitted by both the parties before learned District Forum.  Perusal of order of District Forum

which was passed on 16.4.2012 reveals that Counsel for the complainant during the course of

arguments submitted that complainant could not submit documents in time due to custody in jail,

but later on he submitted all the documents meaning thereby before filing complaint, which was

filed on 19.4.2011, petitioner must have come out of jail.  Learned State Commission passed

impugned order on 16.4.2012 and petitioner has not pleaded any circumstance showing that he

was in jail after passing of the impugned order and in such circumstances, there is no explanation

for condonation of 133 days delay (as per Registry report).  Learned Counsel for the petitioner

has placed reliance on 2008 (4) RCR (Criminal) – State (NCT of Delhi) Vs. Ahmed Jaan in

which it was observed that law of limitation is same for private citizen as for State, but certain

amount of latitude is not impermissible. In the aforesaid case, delay of 5 years in filing revision

was condoned as it was explained by Counsel that file was misplaced in his office due to paucity

of space. In the case in hand petitioner has not placed any material to show that petitioner was

restrained by any sufficient cause from filing revision petition in time. When he had already

come out of jail before more than 2 years, there was no reason for not filing revision petition in

time and delay in filing revision petition cannot be condoned in routine. He has also placed

reliance on (2005) 3 SCC 752 – State of Nagaland Vs. POK AO and Ors. in which it was

observed that sufficient cause should be considered with pragmatism in a justice-oriented

approach. We agree with the view expressed by Hon’ble Apex Court, but in the light of aforesaid

observation, we do not find any sufficient cause for condonation of delay. 

6.      As there is inordinate delay of 133 days, this delay cannot be condoned in the light of the

following judgment passed by the Hon’ble Apex Court. 

7.      In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:           “We hold that in each and every case the Court has to examine whether

delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

 

8.        In Ram Lal and Ors.  Vs.  Rewa Coalfields     Ltd ., AIR  1962 Supreme Court 361, it

has been observed; “It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

          

9.      Hon’ble Supreme Court after exhaustively considering the case law on the aspect  of

condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat

Industrial Development Corporation reported in (2010) 5 SCC 459 as under; “We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the

same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

  

10.    Hon’ble Apex Court in (2012) 3 SCC 563 – Post Master General & Ors.   Vs. Living Media

India Ltd. and Anr. has not condoned delay in filing appeal even by Government department and

further observed that condonation of delay is an exception and should not be used as an

anticipated benefit for the Government departments. 

11.    Hon’ble Apex Court in 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla Industrial

Development Authority observed as under: “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

  

Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate

delay of 133 days. Revision petition is liable to be dismissed on the ground of delay alone. 

12.    As far as merits of the case are concerned, learned State Commission rightly allowed

appeal as there was delay of more than 30 days in intimation to Insurance Company and thus,

petitioner violated terms and conditions of the policy.  Learned State Commission rightly placed

reliance on New India Assurance Co. Ltd. Vs. Trilochan Jane and Suraj Mal Ram Niwas Oil

Mills (P) Ltd. Vs. United India Insurance Co. Ltd. & Anr. and rightly allowed appeal. 

13.    We do not find any illegality, irregularity or jurisdictional error in the impugned order and

revision petition is liable to be dismissed on merits also. 

14.    Consequently, revision petition filed by the petitioner is dismissed on the ground of

limitation as well as on merits with no order as to costs.      

        ..……………Sd/-………………( K.S. CHAUDHARI, J) PRESIDING MEMBER  ..…………Sd/-…………………( DR. B.C. GUPTA ) MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION   PETITION     NO. 471 OF 2013 (From the Order dated 09.11.2012 in Appeal No. 456/2012 of Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)  The New India Assurance Co. Ltd. Regd. & Head Office 87, Mahatma Gandhi RoadFort, Mumbai (M.H.)-400001Through Its Regional Office No.1 Level-5 Tower-II Jeevan Bharati Bldg. Connaught Circus New Delhi-110001

Petitioner VersusM/s B. Mangatram & Co., Madhapur Highway Post Madhapur, Tehsil-Bhuj Kachchh, Gujarat

Respondent  BEFORE:                   HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

       HON’BLE MR. SURESH CHANDRA, MEMBER 

For the Petitioner                           :              Shri V.S. Chopra, Advocate with                                                                          Shri Neeraj Sharma, Regional Manager Pronounced   on :   30 th   August, 2013   O R D E R

 PER SURESH CHANDA, MEMBER

 

This revision petition is directed against the impugned order dated 9.11.2012 of Gujarat

State Consumer Disputes Redressal Commission, Ahmedabad passed in appeal No.456 of 2012

by which the State Commission dismissed the appeal of the petitioner Co. and upheld the order

dated 28.7.2010 of the District Forum, Bhuj in complaint No.228 of 2008. By its order, the

District Forum partly allowed the complaint filed by the respondent in terms of the following

directions:-

“The complaint of the complainant is partly allowed. The opponent

are ordered to pay a sum of Rs.5,62,000/-(Rupees Five Lac Sixty

Two Thousand Only) being 75% of the insured value on non-

standard base, Rs.5,000/- (Rupees Five Thousand Only) against

Mental Harassment and Rs.3000/- (Rupees Three Thousand Only)

against Cost.”

2.         Briefly put, the factual matrix of this case are that the respondent who is the original

complainant in this case is the authorized dealer of Mahindra and Mahindra Co. manufacturers of

Scorpio Jeep. Being the dealer, the complainant would purchase the new manufactured Scorpio

Jeeps in bulk. As the dealer of the co., the complainant became the owner of the jeep in question

bearing Engine No.BS64L71432 and Chasis No.62L97789. The vehicle had automatic

registration in complainant’s name with Trade Plate No.GJ-12-TC-28A. This jeep was insured

with the petitioner insurance co. under Motor Trade (Road Risk) Policy B-Package for the period

from 1.2.2006 to 31.1.2007 covering the risk of theft and other perils as per the contract. It is

alleged that while the vehicle (Scorpio Jeep No.GH-12 TC-28A) was coming from Vadodara

Manufacturer’s Store-yard to Madhapar-Bhuj Showroom on 5.12.2006, it was stolen

near Karjan on NH No.8-A. The incident of theft of the vehicle in question was immediately

intimated to the petitioner insurance co. besides lodging of FIR No.213/2006 with

the Karjan Police Station on 6.12.2006. The complainant thereafter filed necessary claim in

respect of the loss of new jeep for Rs.7,50,000/- which was the sum insured in respect of the

vehicle. Even after submission of the necessary documents by the complainant, the petitioner Co.

did not reimburse the amount of loss and repudiated the claim on the grounds that the vehicle did

not carry Trade Plate while in travel, the vehicle was travelling beyond 80 kms limit and so

violated condition I.M.T. Endorsement no. 41 and the vehicle was carrying passengers. Alleging

repudiation of its claim by the petitioner Co. as baseless and illegal, the respondent filed a

consumer complaint in question before the District Forum.

3.         On notice, the petitioner insurance co. filed its written statement along with documents

including copy of the policy with terms and conditions, affidavit of the driver, repudiation letter,

surveyor’s report etc. In its written statement, the petitioner/opposite party denied any deficiency

in service on its part and submitted that the repudiation of the claim was justified for the reasons

mentioned in the repudiation letter. While not denying the insurance cover to the vehicle in

question, the OP submitted that since there was serious violation of conditions of the policy and

Motor Vehicles Rules, the complainant was not entitled to get any claim in respect of the vehicle.

After examining the documentary evidence and hearing the parties, the District Forum held that

it was proved from the investigation report and the statements made by the driver and others that

the vehicle was carrying passengers and there was no reason to believe that the passengers did

not pay for their travel and as such there was violation of the terms of the policy inasmuch as the

vehicle was not meant to be used for commercial purpose. The District Forum noted that the

insurance policy was subject to I.M.T. Endorsement No.41 regarding the limit of 80 kms within

which the vehicle in question could have been driven and since it was going beyond this limit,

there was violation of this condition as well. However, the District Forum held that keeping in

view the nature of violations committed in this case, they could not be considered as fundamental

violation of terms and conditions of the policy. Relying on the ratio laid down in the judgement

of the National Commission in the case of New India Assurance Co. Vs. Narayan Prasad (2006

CPJ 144 NC), the District Forum partially accepted the complaint in terms of its order

reproduced above. As stated, this order was upheld by the State Commission while dismissing

the appeal of the petitioner by its impugned order.

4.         We have heard learned Shri V.S. Chopra for the petitioner- Company and perused the

record. Learned counsel has argued that the fora below have erred in ignoring that the claim of

the respondent could not have been allowed because of the violations of the conditions of the

policy as also the Motor Vehicles Rules. He submitted that the State Commission and the District

Forum failed to appreciate the fact that in the present case there was violation of the contract of

insurance and the Motor Vehicles Rules because at the time of the loss, the vehicle, which was

yet to be registered with the Registering Authority under the provisions of Motor Vehicles Act,

was being used for commercial purpose and was also plying beyond the limit of geographical

area of 120kms. and was not carrying the trade plate. He, therefore, contended that the present

case does not fall within the ambit of the instructions to treat it on non-standard basis since it is a

clear case of gross violation of the terms and conditions of the policy. Thus, he pleaded that the

revision petition be allowed and the impugned order be set aside.

5.         Perusal of the record would show that it is established from the evidence before

the Fora below that at the time of the robbery, the driver of the vehicle was carrying passengers

in the vehicle on hire which amounted to violation of the terms of the policy inasmuch as the

vehicle was not meant to be used for commercial purpose. The District Forum taking note of the

nature of violation of the conditions of the insurance policy allowed the claim as non-standard

for the reason that there is no direct nexus with the violation of the terms of the policy and the

robbery. This decision was upheld by the State Commission. The view taken by the Fora below

is in line with the view taken by this Commission in Narayan Prasad’s case

(Supra) and  other similar cases. In the case of Niharika Maurya Vs. New India Insurance Co.

& Ors.(RP No. 3687 of 2010 decided on 21/04/2011) , this Commission has observed thus:

“Even if it is assumed for the sake of argument that the vehicle was being used for commercial purpose in violation of the terms of the policy, it is of no avail to the respondents as the Supreme Court in Nitin Khandelwal’s case (supra) has held that in the case of theft of vehicle breach of condition is not germane and the insurance company is liable to indemnify the owner of the vehicle in the case of a comprehensive policy for the loss caused to the vehicle. Para 13 of the said judgment reads as under:

                                                                  “In the case in hand, the vehicle has been snatched or

stolen. In the case of theft of vehicle breach of condition is not germane. The appellant insurance company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant insurance company ought to have settled the claim on non-standard basis. The insurance company cannot repudiate the claim in toto in case of loss of vehicle due to theft.”

 

 6.        In view of the above discussion, we do not find any infirmity with the impugned order

which would call for our interference. We, therefore, dismiss the revision petition in limine with

the parties bearing their own costs.

 

……………Sd/-……..………..     (AJIT BHARIHOKE, J.)      PRESIDING MEMBER

                                                               …………Sd/-…….……………

(SURESH CHANDRA)MEMBER

SS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        REVISION PETITION NO.   2127 OF 2008  (From the order dated 07.02.2008 in Appeal No.707/2006 of the M.P. State Consumer Disputes Redressal Commission, Bhopal)  Rajesh Jain S/o Late Shri Vimal Kumar Jain R/o Indira Complex Vidisha, M.P.

                                                               … Petitioner/Complainant                                                VersusNational Insurance Co. Ltd. Branch at Vidhisha (M.P.)

                                                                  … Respondent/Opp. Party (OP)                                        BEFORE  HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner      :  Mr. H.D. Thanvi,  AdvocateFor the Respondent  : Mr. Ajay Majithia, Advocate 

PRONOUNCED   ON     30 th   August,     2013   O R D E R  

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER   

This revision petition has been filed by the Petitioner/Complainant against the order dated

7.02.2008 passed by the M.P. State Consumer Disputes RedressalCommission, Bhopal (in short,

‘the State Commission’) in Appeal No. 707/2006 – National Insurance Co. Ltd. Vs. Rajesh Jain

by which, while allowing appeal, order of District Forum allowing complaint was set aside. 

2.       Brief facts of the case are that complainant/petitioner’s car MP-40C 0251 was insured by

OP/respondent for a period of one year commencing from 29.6.2003 to 28.6.2004.  On

12.7.2003, car met with an accident and report was lodged with the Police Station.  OP also

conducted inquiry and loss of Rs.1,17,787/- was assessed. Complainant was holding licence

which was valid upto 24.1.2020, but after investigation, OP repudiated claim of the complainant

on the  ground that driving licence of the complainant was not in force on the date of accident.

Alleging deficiency on the part of OP, complainant filed complainant before District Forum.  OP

resisted complaint and submitted that validity of complainant’s licence was only upto 21.1.2000

and claim was rightly repudiated and prayed for dismissal of complaint.  Learned District Forum

after hearing both the parties, allowed  complaint and directed OP to pay Rs.44,451/- to the

complainant along with 6% p.a. interest.  Appeal filed by the respondent was allowed by learned

State Commission vide impugned order against which, this revision petition has been filed.

3.       Heard learned Counsel for the parties and perused record.

4.       Learned Counsel for the petitioner submitted that petitioner was under

the bonafide impression that his licence was valid upto 24.1.2020; though, in fact, it was valid

only upto 21.1.2000 and in such circumstances, learned District Forum rightly allowed

complaint, but learned State Commission has committed error in dismissing complaint; hence,

revision petition be allowed.  On the other hand, learned Counsel for the respondent submitted

that order passed by learned State Commission is in accordance with law; hence, revision

petition be dismissed. 

5.       Perusal of record clearly reveals that licence of the petitioner was valid

only upto 21.1.2000, whereas accident took place on 12.7.2003. Thus, it becomes clear that at the

time of accident, petitioner was not having valid licence. Learned State Commission has rightly

allowed appeal and dismissed complaint as complainant was not possessing valid driving licence

at the time of accident.  Merely because petitioner was under an impression that his licence was

valid upto 24.1.2020, petitioner cannot get any benefit. 

6.       Learned State Commission has wrongly mentioned that learned District Forum allowed

claim on non-standard basis because perusal of order of District Forum reveals that complaint

was not allowed on the basis of non-standard basis. The order passed by learned State

Commission is in accordance with law, which does not call for any interference and revision

petition is liable to be dismissed. 

7.       Consequently, revision petition filed by the petitioner is dismissed with no order as to

costs.     

        ..………………Sd/-……………( K.S. CHAUDHARI, J) PRESIDING MEMBER  ..……………Sd/-………………( DR. B.C. GUPTA ) MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        REVISION PETITION NO.   1554 to 1566 OF 2013 (From the order dated 03.10.2012 in Appeal No.A/08/591 of the Maharashtra State Consumer Disputes Redressal Commission, Nagpur)WITH1A/2705/2013IA/2706/2013(Stay & Condonation of Delay) National Insurance Co. Ltd. Regional Office “Mangalam Arcade”, 2nd Floor, North Bazar Road, Gokulpeth Nagpur – 440010 Through: Manager Regional Office – 1,Jeevan Bharti Building 124, Connaught Circus New Delhi

                                                    … Petitioner/ Opp. Party (OP)                              VersusM/s. Richardson & Cruddas (1997) Ltd. F-3, MIDC Industrial Estate Hingna Road,Nagpur – 440016

                                            … Respondent/Complainant 

BEFORE      HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner           :        Mr. Kishore Rawat, AdvocateFor the Respondent       :        Mr. Kaushik Mandal, Advocate 

PRONOUNCED ON         30 th   August,     2013   O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER          

          All these revision petitions arise out of common order dated 3.10.2012 passed by learned

State Commission in appeals; hence, all these revision petitions are disposed of by common

order.  

These revision petitions have been filed by the petitioner/OP against the order dated

03.10.2012 passed by the Maharashtra State Consumer DisputesRedressal Commission, Circuit

Bench at Nagpur (in short, ‘the State Commission’) in Appeal Nos. A/08/591, A/08/709 to

A/08/720  – National Ins. Co. Ltd. Vs. M/s. Richardson & Cruddas (1997) Ltd. by which, while

dismissing all the appeals, separate orders of District Forum allowing complaints were upheld. 

2.      Brief facts of the case are that complainant/respondent obtained contract to erect 400 K.V.

of transmission line from Durgapur to Jamshedpur covering distance of 159 Km in the year

1988.  Complainant obtained insurance coverage from OP/petitioner for different articles,

electrical appliances and materials for the period commencing from 29.12.1988 to

28.07.1991.  During subsistence of the policy, different insured articles; namely, ACSR “Moose”

conductors were stolen away. Complainant informed OP and also lodged report with the

police.  Complainant submitted claim before OP.  OP deputed surveyor and, though, surveyor

submitted report showing loss of articles due to theft, the claim was not settled by OP for about 4

years. Alleging deficiency on the part of OP, complainant filed separate complaints before State

Commission which were later on transferred to District Forum on account of change of

pecuniary jurisdiction.  OP/Petitioner resisted complaints and submitted that complainants did

not accept amount offered by OP and, as such, there was no deficiency and prayed for dismissal

of complaints. Learned District forum after hearing both the parties allowed complaints and

awarded amount as shown in Schedule ‘A’ of the impugned order against which, these revision

petitions have been filed. 

3.      Heard learned Counsel for the parties at admission stage finally and perused record. 

4.      Learned Counsel for the petitioner submitted that learned State Commission has not

considered grounds of appeal in the impugned order; hence, revision petitions be accepted and

impugned order be set aside and matter may be remanded back to learned State Commission.  On

the other hand, learned Counsel for the respondent submitted that order passed by learned State

Commission is in accordance with law; hence, revision petitions be dismissed. 

5.      Learned Counsel for the petitioner submitted that there was similar exclusion clause in the

policies except in Complaint No. 35 of 2008 (R.P. No. 1565 of2013) in which there was separate

exclusion clause, but learned State Commission has committed error in not considering exclusion

clause and further submitted that learned State Commission has not considered grounds taken in

memo of appeal, but has decided appeals on other grounds which were not raised before learned

State Commission. 

6.      Perusal of memo of appeal filed before State Commission in R.P. No. 1554 of 2013 reveals

that petitioner took following grounds in memo of appeal:“C.     The Learned Forum manifestly erred in not appreciating that the second report sought by the appellants was only restricted to ascertain the reasons for collapse of the structure giving rise to the claim. The Learned Forum failed to appreciate the recorded findings that the towers with FOS for 1.5 as in the case of the respondents had inherent defect and were not designed for any impact load, which may result due theft/snapping; D.      The Learned Forum manifestly erred not appreciating the documents on record and their contents. The learned Forum failed to

apply its mind to the very fact that despite their being inherent defect in the towers the appellants offered to indemnify the respondents by paying an amount of Rs.03,13,796/- as per the calculations made available to the respondents as well as filed on record. The Ld. Forum also failed to appreciate that the respondent was only entitled to the said amount and that; it was the respondent, who refused the said amount. Hence, the findings recorded in the Ld. Forum and directing the appellants to pay an amount of Rs.5,50,711/- along with interest @ 9% p.a. from 05.02.2008 to the respondent is per se bad in law and is therefore required to be quashed and set aside”.

                                                                                     

7.      Similar ground taken in paragraph ‘D’ of this memo of appeal had been taken in other

appeals before State Commission except change of figure of amount awarded by District

Forum.  In memo of appeals, no grounds have been taken regarding maintainability of the

complaint, non-joinder of necessary parties and jurisdiction of the District Forum, but State

Commission has dealt with all these grounds in memo of appeal which were not called

for.  These grounds were taken by the petitioner in written statement filed before District Forum,

but learned District Forum rejected all these objections and allowed complaints and petitioner did

not choose to assail order of District Forum on these grounds. In such circumstances, State

Commission should not have considered all these grounds in the impugned order and should

have decided appeals on the grounds mentioned in memo of appeal which have not been

considered and in such circumstances, matters are to be remanded back to the State Commission

for deciding appeals on the grounds taken in memo of appeal. 

8.      Consequently, revision petitions are allowed and impugned order dated 03.10.2012 passed

by learned State Commission in Appeal Nos. A/08/591, A/08/709 to A/08/720 – National Ins.

Co. Ltd. Vs. M/s. Richardson & Cruddas (1997) Ltd. is set aside and appeals are remanded back

to learned State Commission to confine its order only to the extent of grounds taken in memo of

appeal and to consider all the grounds raised in memo of appeal. 

9.      Parties are directed to appear before the learned State Commission on 23.9.2013...…………………Sd/-…………( K.S. CHAUDHARI, J) PRESIDING MEMBER  ..………………Sd/-……………( DR. B.C. GUPTA ) MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.   2654 OF 2012 (From the order dated 24.02.2012 in First Appeal No. 159/2012of Haryana State Consumer Disputes Redressal Commission) 1.  Saurav, Minor s/o Sh. Lalit Mohan Arora 2.  Vandana, Minor d/o Sh. Lalit Mohan Arora 3.  Lalit Mohan Arora s/o Sh. Gurditta Mal  all residents of H.N. 2272/2, Hari Palace Road, Ambala City

                                             ...  Petitioners Versus The New India Assurance Co. Ltd. through its Branch Manager S.C.O.-19, Municipal Shopping Complex Ambala City

                                             … Respondent BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s)   Mr. Ritesh Khare, Advocate

with Petitioner No.3

 

 

PRONOUNCED   ON :   2 nd   SEPT.     2013 O R D E R PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 by the petitioners against the impugned order dated 24.02.2012, passed by the Haryana

State Consumer Disputes Redressal Commission, (for short ‘the State Commission’) in FA No.

159/2012, “Saurav and others versus New India Assurance Co. Ltd.,” vide which, while

dismissing the appeal, order dated 26.07.2011 passed by the District Consumer Disputes

Redressal Forum, Ambala, in consumer complaint no. 229/2011, dismissing the complaint, was

upheld.  

2.     Brief facts of the case are that one Smt. Sunita Arora, since deceased, who was the wife of

petitioner/complainant no.3, L.M. Arora, and mother of petitioner 1 & 2, her minor children, was

a teacher in Bhartiya Public School, Ambala Cantt.  She was the owner of an ActivaHonda

vehicle, bearing registration No. HR01M-1059, which was insured with the OP, The New India

Assurance Co. Ltd. (hereinafter referred to as ‘insurance company’) from 07.02.2008 to

06.02.2009.  On 05.08.2008, when Smt. Sunita Arora was going to the school on the said

vehicle, she met with an accident, resulting in her death at the spot.  Her husband,

petitioner/complainant no. 3 made an application dated 22.08.2008 to the OP requesting them to

pay the amount of personal accident cover, i.e., Rs.1 lakh along with cost of repairs.  It has been

stated in the complaint that the necessary documents were handed over to the representatives of

the OP, except the driving licence, which was lost at the time of accident.  The insurance

company, however, sent a letter dated 16.03.2009, repudiating the claim on the ground of non-

completion of necessary formalities.  The complainant again sent a letter dated 15.07.2009 to the

OP informing that the licence had been lost at the time of accident and OP again replied vide

letters dated 18.08.2009 and 27.08.2009 that the claim had been declined for non-submission of

documents.  A consumer complaint was filed by the complainants but the same was dismissed by

the District Forum on the ground that it was time barred, because it had been filed beyond a

period of two years from the date of cause of action and hence, beyond limitation as per section

24(A) of the Consumer Protection Act, 1986.  It was held that the cause of action arose from the

date of the letter of repudiation dated 16.03.2009, but the complaint was filed on 22.07.2011.  An

appeal against this order was dismissed by the State Commission upholding the view taken by

the District Forum.  It was also stated that the appeal filed before the State Commission was

beyond limitation, as there was a delay of 154 days in filing the appeal.  It is against this order

that the present petition has been made. 

3.     At the time of hearing before us, learned counsel for the petitioner stated that the letter

dated 16.03.2009, vide which the claim was repudiated, was never received by them.  The cause

of action should be taken from the date of subsequent letters dated 18.08.2009 and 27.08.2009,

received from the insurance company.  The complaint was very much within limitation, if the

cause of action is taken from these dates.

4.     We have examined the entire material on record and given a thoughtful consideration to the

arguments advanced before us.  

5.     A perusal of the complaint in question reveals that it has been stated in paragraph 9 of the

complaint that letter dated 16.03.2009 addressed to Smt. Sunita Rani was sent by OP giving

information about closing the claim case on the ground of non-completion of formalities, though

the complainant had already handed over all documents to 

Mr. Rajesh of the OP insurance company, except driving licence, because it was lost at the time

of accident.  The District Forum stated in their order that this was an admission on the part of the

complainant that the letter of repudiation was sent on 16.03.2009 and hence, the complaint was

barred by limitation.  The District Forum has observed in their order as follows:-“We have observed that the complainants have not even filed an application for condonation of delay along with this complaint.  The reasons mentioned in the complaint are not sufficient to condone the delay.  The claim file of the complainant was closed due to non completion of formalities by the OP vide letter dated 16.03.2009.  Hence, complainants had the period of two years to file the present complaint, i.e., upto15th March, 2011 as per the C.P. Act.  It is argued by the complainants counsel that actually the complainant No. 3 was informed through letter dated 18.8.2009 as well as 27.8.2009 by the OPs, i.e., claim has been made as no claim though it is admitted by him that letter dated 16.3.2009 was received at his address but was in the name of Smt. Sunita Arora – deceased.  It is not the case of complainant that he never received the letter dated 16.3.2009.  The cause of action arose on receipt of letter dated 16.3.2009 and not from the letter dated 18.8.2009 or 29.8.2009, which the OP has written in reply to his letter dated 14.7.2009.  Repeated correspondence and reply sent on the basis of same would not extend the period of limitation.  Even otherwise, if the driving license of Smt. Sunita Arora was lost at the time of accident in question, complainant No. 3 could have supplied the particulars of her driving license to the OP which he failed to do.  The complainant No. 3 is an educated person and ignorance on his part is no excuse at all. In view of these facts and circumstances, we are of the opinion that the complaint is hopelessly time barred and the same is hereby dismissed in limine.  Copy of this order be sent to the parties free of costs.  File be consigned to records after due compliance.”

 

6.     Further, it has been clearly mentioned in the order passed by the State Commission that

there was a delay of 154 days in filing the appeal before the State Commission.  The reasons

given in the application for condonation of delay stated that the petitioner no. 3 had lost his job

due to political reasons and had been compulsorily retired from job.  He had also lost his wife in

accident and because of these shocks, he had lost his senses.  The State Commission reached the

conclusion that this was not a sufficient ground for condonation of delay. 

7.     The facts and circumstances of the case clearly show that the consumer complaint was

barred by limitation under section 24(A) of the Consumer Protection Act, 1986, so much so, that

application for condonation of delay was also not filed before the District Forum.  The inordinate

delay in filing the appeal before the State Commission has also not been properly explained by

the petitioners.  The Hon’ble Apex Court have also held in a number of cases decided recently

that unless there are cogent and convincing reasons for condoning the delay in filing a petition,

the same should not be condoned.  Reference may be made to the case, Oriental Aroma Chemical

Industries Ltd. Vs.Gujarat Industrial Development Corporation reported in (2010) 5 SCC

459, where it has been observed as under:“We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

 

8.     Hon’ble Apex Court in 2012 (2) CPC 3 (SC) – Ansul   Aggarwal  Vs. New   Okhla   Industrial

Development Authority observed as under:“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

 

9.     Based on the discussion above, this revision petition is ordered to be dismissed and the

orders passed by the State Commission and the District Forum upheld with no order as to costs.Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER  Sd/-(DR. B.C. GUPTA)MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO.   1979 OF 2008  (From the order dated 07.02.2008 in Appeal No. 1077/2002 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

 

New India Assurance Co. Ltd. Delhi Regional Offoce-1 Level – V, Tower – II, Jeevan Bharti Connaught Circus, New Delhi – 110001 Through its Manager

                                     … Petitioner/Opp. Party (OP)

                                                VersusMohinder Kaur Widow of Mohan Singh R/o Village Solkhian Tehsil & District Ropar (Punjab)

                                                       … Respondent/Complainant

BEFORE

 HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

 HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner         :         Mr. R.B. Shami, Advocate

For the Respondent    :         Mr. Narender S. Yadav, Advocate

 

PRONOUNCED   ON     3 rd   September,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the Petitioner/OP against the order dated

07.02.2008 passed by the Punjab State Consumer Disputes RedressalCommission, Chandigarh

(in short, ‘the State Commission’) in Appeal No. 1077/2002 – M/s. The New  India Assurance

Co. Ltd. Vs. Mohinder Kaur by which, while allowing appeal partly, order of District Forum

allowing complaint was modified. 

2.      Brief facts of the case are that complainant/respondent’s husband Mohan Singh

obtained medi-claim insurance policy from the OP/petitioner on 24.10.2000 for a period of one

year for a sum of Rs.1,00,000/-. During the subsistence of the insurance policy, Mohinder Singh

developed brain tumor and spent more than Rs.1,20,000/- on his treatment and ultimately died on

06.11.2001.  Mohan Singh during his life time approached OP for reimbursement of medical

expenses, but to no effect. Later on, complainant filed complaint before District Forum alleging

deficiency on the part of OP.  OP resisted complaint and submitted that deceased Mohan Singh

did not disclose that he was suffering from aforesaid disease and in such circumstances, was not

entitled to reimbursement of the medical expenses and claim was rightly repudiated by letter

dated 31.3.2002 and prayed for dismissal of complaint. Learned District Forum after hearing

both the parties, allowed complaint and directed OP to pay Rs.1,00,000/- along with 18%  p.a.

interest and awarded cost of Rs.2500/-. Appeal filed by the petitioner was partly allowed by

learned State Commission vide impugned order and interest awarded @ 18% p.a. by District

Forum was modified to 9% p.a. and rest of the order was upheld against which, this revision

petition has been filed. 

3.      Heard learned Counsel for the parties and perused record. 

4.      Learned Counsel for the petitioner submitted that on account of suppression of pre-existing

disease, petitioner rightly repudiated claim of the insured; even then, learned District Forum

committed error in allowing complaint and learned State Commission further committed error in

upholding order; hence, revision petition be allowed and impugned order be set aside, complaint

be dismissed.  On the other hand, learned Counsel for the respondent submitted that order passed

by learned State Commission is in accordance with law; hence, revision petition be dismissed. 

5.      Learned Counsel for the petitioner submitted that it is well proved by evidence that

complainant’s husband while taking medi-claim policy fraudulently suppressed pre-existing

disease.  In such circumstances, petitioner has not committed any deficiency in repudiating

claim.  In support of his contention, he has placed reliance on – 

i.             III (2011) CPJ 43 (NC) – Maya Devi Vs. Life Insurance Corpn. of India;

ii)       IV (2011) CPJ 71 (NC) – Bhanwari Devi Vs. Bharatiya Jeevan Bima Nigam

& Anr.

 iii)      IV (2011) CPJ 603 (NC) – Life Insurance Corpn. of India Vs. Francis

Antony D’souza

iv)      IV (2012) CPJ 354 (NC) – New India Assurance Co. Ltd. Vs. K.M. Babu Reddy

 v)      I (2012) CPJ 547 (NC) – National Insurance Co. Ltd. Vs. Ashok Kumar Gupta.

 6.      We agree with the principle laid down in the aforesaid judgments, but the question is

whether deceased suppressed pre-existing disease at the time of taking medi-claim policy

or not.  Admittedly, in the proposal form, he has denied that he was having any cancer,

malignant growth which did not heal or improve despite treatment. As per Annexure P2,

discharge summary issued by Rancan Gamma Knife Centre, deceased was having

Stereotactic contrast MRI on the date of treatment (20.7.2001) which revealed right

frontal basal region enhancing meningioma measuring 7.6 cubic cm in

volume.  Operation was conducted and he was discharged on 21.7.2001 with history

which runs as under:

 

“The patient presented with history of severe headache in June 2001. He

consulted a physician at the Punjab Health Systems Corporations, Ropar,

who advised MRI head.  MRI dated 2.7.2001 revealed a right-

sided basifrontal enhancing meningioma with surrounding edema. He was

given the option of both microncurosurgery and Gamma Knife

Radiosurgery and the patient opted for Gamma Knife Radiosurgery

for tumor control”. 

  

7.      In this history, operating doctor and other doctors has nowhere stated that disease dates

back to 1998, whereas in response to investigator’s letter Dr.M.S. Gaur, who conducted surgery

has intimated to the investigator by letter dated 1.11.2001 i.e. almost after 27 months as under: 

“1.     History of patient’s disease as given to us dates back to 1998 when

he had a epileptic attack and CT scan was taken which showed a

right basifrontal meningioma.  No definitive time of existence of

this tumor, before this can be imagined or suggested.

 2.      Growth rate of Meningioma cannot be standardized like that as

it vary from patient to patient.

3.      We know that there is a Meningioma in patient’s brain since 1998, so

already more than 2 years”.

 

 

8.      This report has been given by Dr. Gaur after 27 months in which it has specifically

mentioned that there was epileptic attack and CT scan was taken which showed a

right basifrontal meningioma, but petitioner has not placed on record CT scan taken in 1998 and

record of any treatment taken in 1998.  In such circumstances, this report which has been given

after 27 months and that too just before 5 days of death of Mohan Singh cannot be

believed.  Investigator has also submitted in his report that he also discussed the case

with Dr. Jindal, Neuro Surgeon on 27.10.2001 and according to him, disease was at least two

years old, but he has also mentioned that Dr. Jindal did not give him any opinion in

writing. Dr. Jindal has not been examined by the petitioner before District Forum. In such

circumstances, no reliance can be placed on the investigator’s report regarding Dr. Jindal’s

opinion. 

9.      Learned District Forum has elaborately discussed evidence and allowed complaint and

reasons given by District Forum have been reiterated in the impugned order and we do not find

any reason to differ with the opinion given by learned District Forum and upheld by learned

State Commission. 

10.    Consequently, revision petition filed by the petitioner is dismissed with no order as to

costs.        ..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO. 4279 OF 2012(From the order dated 17.07.2012 in Appeal No.1519 of 2010 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Dr. Vir Singh Malik Jeet Hospital Park Road, Gohana Distt. Sonepat, Haryana

                                                           … Petitioner/Complainant

                                                VersusThe Oriental Insurance Co. Ltd. Branch Office: Gohana Through Regional Manager Regional Office, LIC Building, 2nd Floor, LIC Building Jagadhari Road, Ambala Cantt. Haryana

                                  … Respondent/Opp. Party (OP)

 

BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

 For the Petitioner           :        Mr. K.L. Nandwani, Advocate                                

For the Respondent       :        Mr. Rajesh K. Gupta, Advocate

 

PRONOUNCED ON     3 rd   September,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the petitioner/complainant against the order dated

17.07.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula

(in short, ‘the State Commission’) in Appeal No. 1519/2010 – Oriental Ins. Co. Ltd. Vs. Dr. Vir

Singh Malik by which, while allowing appeal, order of District Forum allowing complaint was

modified. 

2.      Brief facts of the case are that complainant/petitioner got his car insured with

OP/respondent for a period of one year commencing from 31.8.2001 to 30.8.2002 for

Rs.5,50,000/-.  On 3.2.2002, car met with an accident and car was taken for repairs to the

authorized service station of the Company, who submitted estimate of repairs of about

Rs.6,25,000/-. Surveyor appointed by OP assessed damage to the vehicle to the extent of

Rs.2,40,000/- net of salvage on the basis that market price of the vehicle on the date of loss was

between Rs.3,90,000/- to 4,00,000/- and maximum salvage value of the damaged vehicle was

Rs.1,60,000/-.  Complainant not satisfied with the report of the surveyor, filed complaint before

District Forum.  OP resisted complaint and submitted that settlement may be made as per

surveyor’s report and prayed for dismissal of the complaint.  Learned District Forum after

hearing both the parties allowed complaint and directed OP to pay Rs.5,50,000/- along with 9%

p.a. interest along with 9% p.a. interest and further awarded Rs.20,000/- for mental agony and

Rs. 5,000/- as litigation expenses.  Appeal filed by the respondent was partly allowed by learned

State Commission vide impugned order modifying order of District Forum and directed

respondent to pay Rs.4,00,000/- including salvage value of Rs.1,60,000/- and rest of the order

was affirmed against which, this revision petition has been filed. 

3.      Heard learned Counsel for the parties and perused record. 

4.      Learned Counsel for the petitioner submitted that learned State Commission has committed

error in reducing amount awarded by District Forum as policy was for Rs.5,50,000/- and it was a

case of total loss; hence, revision petition be allowed and order of District Forum be

restored.  On the other hand, learned Counsel for the respondent submitted that order passed by

learned State Commission is in accordance with law; hence, revision petition be dismissed. 

5.      It is admitted case of the parties that complainant’s vehicle was insured for a sum of

Rs.5,50,000/- at the time of accident.  Insurance coverage was from 31.8.2001 to 30.8.2002 and

vehicle met with an accident on 5.2.2002 meaning thereby after 5 months of taking insurance

coverage.  Surveyor assessed loss on the basis of market value of the vehicle being between

Rs.3,90,000/- to Rs.4,00,000/-. 

6.      Learned Counsel for the petitioner submitted that petitioner is entitled to receive

compensation on the basis of value of the vehicle shown in the insurance policy because

premium has been charged on that amount. He has placed reliance on (2008) 8 SCC 279

– Dharmendra Goel Vs. Oriental Insurance Company Ltd. in which price of the vehicle shown in

the insurance policy was Rs.3,54,000/- and surveyor assessed loss of Rs.1,80,000/-, but Hon’ble

Apex Court allowed Rs.3,54,000/- after deducting Rs.10,000/- as deprecation for 7 months.

 

7.      In the case in hand, petitioner paid premium on amount of Rs.5,50,000/-, price of the

vehicle shown in the insurance policy and compensation cannot be awarded on the basis of

market price of the vehicle on the date of loss.  Learned Counsel for the respondent could not

place any citation in support of his contention that claim can be allowed on the basis of market

price of the vehicle. When petitioner has charged premium on the declared value of the vehicle

which is a contract between the parties, petitioner is not entitled to reduce payment on the basis

of market price of the vehicle and learned State Commission has committed error in modifying

order of District Forum and reducing payment by Rs.1,50,000/- on the assumption that there is

tendency  of the claimant to submit claim on higher side by securing false and bogus bills. In this

matter, authorized service station of the company submitted estimate of repairs to the tune of

Rs.6,25,000/- and in such circumstances, it cannot be said that petitioner has lodged his claim on

higher side by securing false and bogus bills.

 

8.      Hon’ble Apex Court in Dharmendra Goel’s case (supra) deducted Rs.10,000/- as

depreciation for use of vehicle for 7 months.  In the case in hand, vehicle met with an accident

after 5 months and in such circumstances, looking to the value of vehicle, we deem it proper to

reduce the amount payable by Rs.20,000/- and hold that petitioner is entitled to get

Rs.5,30,000/-.

 

9.      Consequently, revision petition filed by the petitioner is allowed partly and impugned order

dated 17.7.2012 is modified and order dated 13.09.2010 passed by learned District Forum is also

modified to the extent that respondent shall pay to the petitioner Rs.5,30,000/- instead of

Rs.5,50,000/- and rest of the order passed by the District Forum is upheld.

                                                                                      

                                     ..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO.   2488 OF 2013 (From the order dated 26.03.2013 in Appeal No. 111/2013 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

 

Mangat Ram S/o Shri Sher Bahadur R/o House No. 696, Veena Nagar, Camp, Yamuna Nagar, Tehsil Jagadhri, Distt. Yamuna Nagar

                                              … Petitioner/Complainant                                                   VersusSyndicate Bank Camp, Branch, Yamuna Nagar Through its Branch Manager

                        …Respondent/Opp. Party (OP)

 BEFORE

      HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

 For the Petitioner           : In person

 

PRONOUNCED ON       3 rd   September ,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER          

This revision petition has been filed by the petitioner/complainant against the order dated

26.3.2013 passed by the Haryana State Consumer DisputesRedressal Commission, Panchkula (in

short, ‘the State Commission’) in Appeal No. 111 of 2013  – Mangat Ram Vs. Syndicate Bank

by which, while dismissing appeal, order of District Forum allowing complaint was upheld. 

2.      Brief facts of the case are that complainant/petitioner being unemployed obtained a loan of

Rs.85,500/- from the OP/respondent for purchase of three wheeler under the scheme “Prime

Minister Rozgar Scheme”.  As per version of the complainant, there was subsidy of Rs.7500/- on

the loan amount without any interest which was to be payable in 60 instalments.  OP issued letter

to the complainant that he is defaulter and directed complainant to deposit balance loan amount

of Rs.19,796/-.  OP charged interest on subsidiary amount of Rs.7,500/-, which was against the

instructions of RBI. Complainant requested to the OP in this regard, but nothing was done and in

such circumstances, complainant made complaint to Banking Lok Pal and RBI upon which, OP

refunded a sum of Rs.1113/- to the complainant. Alleging deficiency on the part of OP,

complainant filed complaint before District Forum. OP contested complaint and submitted that

amount of Rs.1113/- was charged inadvertently and Pay Order of this amount was sent to the

complainant on 27.3.2008, but he has not encashed Pay Order and wants to harass OP and

prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed

complaint and directed OP to issue fresh Pay Order of Rs.1113/- and to pay Rs.10,000/- as

compensation for mental agony as well as litigation expenses.  Appeal filed by the complainant

for enhancement was dismissed by learned State Commission vide impugned order against

which, this revision petition has been filed by the petitioner.

 

3.      Heard petitioner in person at admission stage and perused record.

 

4.      Perusal of record clearly reveals that respondent refunded Rs.1113, excess amount charged

from the petitioner, but on account of harassment, District Forum allowed Rs.10,000/- as

compensation, which cannot be said to be inadequate compensation for harassment and litigation

expenses. It appears that complainant unnecessarily filed appeal before State Commission for

enhancement and even after dismissal of appeal he has preferred this revision petition for

enhancement of compensation without any justification. We do not see any reason for

enhancement of compensation. 

5.      We do not find any illegality, irregularity or jurisdictional error in the impugned order and

revision petition is liable to be dismissed.

 

6.      Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to costs. 

                                     ..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

 

..………………Sd/-……………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.   2861 OF 2008 (From the order dated 06.05.2008 in First Appeal No. 92/2008of State Consumer Disputes Redressal Commission, U.T., Chandigarh) The New India Assurance Co. Ltd. Registered Office at 87, M.G. Road, Fort, Mumbai Regional Office at Jeevan Bharti Building,Level V, Tower II, 124, Connaught Circus, New Delhi – 110001.

                                        ...  Petitioner Versus 1.   Shri C.D. Singla, s/o Sh. Ami Chand 2.   Saroj Singla, w/o Sh. C.D. Singla  Both R/o House No. 357, Sector – 6, Panchkula

                                               … Respondents BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s)   Ms. Anjalli Bansall, AdvocateFor the Respondent(s)   Mr. Madhurendra Kumar, Advocate

 

 

PRONOUNCED   ON :   3 rd   SEPT.     2013 O R D E R PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 by the petitioner against the impugned order dated 06.05.2008, passed by the Chandigarh

State Consumer Disputes Redressal Commission, (hereinafter referred as ‘the State

Commission’) in Appeal No. 92 of 2008, Sh. C. D. Singla & Anr. Vs. New India Assurance

Company Limited & Anr., vide which, while allowing appeal, the petitioner/OP was directed to

pay an amount of Rs. 2.5 lakhs to the appellants on account of reimbursement of the value of

diamond bangles.  This appeal had been filed against the order dated 23.01.2008 passed by

District Consumer Disputes Redressal Forum, U.T. Chandigarh, vide which, the District Forum

had allowed a sum of Rs. 5,100/- as compensation in addition to a sum of Rs. 45,900/- already

paid by the Insurance Company and also allowed Rs. 2,100/- to the complainants as costs of

litigation.     

2.     Briefly stated, the facts of this case are that the complainants/respondents had taken a

Householder’s Insurance Policy from the petitioners/OPs valid from 02.02.2005 to 01.02.2006,

insuring the household goods, including risk for jewellery, valuables, breakdown of domestic

appliances and public liability etc.  It has been stated in the complaint that the purse of

Complainant no. 2/Respondent no. 2 SarojSingla was stolen from Car No.  HP48-0055

containing a jewellery pouch and some other items.  She lodged an FIR at Manimajra Police

Station, Chandigarh immediately after the incident and also sent intimation to the Insurance

Company.  The Insurance Company appointedMr. S. P. Singh as Surveyor-cum-Investigator for

investigation of the complaint.  The said Surveyor-cum-Investigator collected the relevant

documents, statements and information and submitted his report but thereafter, the Insurance

Company appointed another Surveyor.  The Insurance Company approved the claims of the

complainants for a sum of Rs. 45,900/- based on the report of the second Surveyor and the said

amount was paid to them.  However, the complainants alleged that the amount approved was

much less than the loss sustained by them, which was for an amount of Rs. 3,31,500/-.  The

complainants accepted the amount of Rs. 45,900/- under protest and filed Consumer Complaint

before the District Forum.  The District Forum, vide their order dated 23.01.2008, held the

complainants entitled to a further amount of Rs. 5,100/- as compensation and Rs. 2,100/- as costs

of litigation.  The District Forum observed that the complainant no. 2 nowhere mentined that she

was having diamond karas in her purse.  An appeal was filed against this order before the State

Commission, which was allowed and the Insurance Company was directed to pay an amount

of Rs. 2.5 lakhs to the complainants on account of reimbursement of the value of diamond

bangles and also an amount of Rs. 10,000/- for deficiency in service and Rs. 5,000/- as costs of

litigation.  It is against this order that the present petition has been made.

3.     At the time of arguments before us, the learned counsel for the petitioner has drawn our

attention to the copy of the Household Insurance Policy in question saying that the description of

the jewellery items as stated in the policy was as follows:-

        Diamond items 1 set Necklace-60,000, 1 Ring-10,000/-, 1 pair Tops-40,000, 2 Bangles-

2,50,000,1 set Necklace-1,55,000

Gold items-4 Bangles-35,000, Necklace-16,800, 1 Necklace-36,600, 2 Karas-33500.

4.     Learned counsel argued that as per copy of the FIR No. 313 recorded by the police on

22.09.2005, under Section 379 IPC, it has been stated that total value of the property stolen

was Rs. 10,000/- only.  The particulars of the articles stolen have been mentioned as, “One

mobile phone Nokia No. 6681 and some cash, gold ornaments, necklace, kady”.  However,

subsequently, the complainants asked the police on 23.09.2005 to add in the FIR the following

items:-

        1. One diamond Kara/Chain valuing Rs. 2.5 lakhs.

        2. One diamond necklace/pendant valuing Rs. 60,000/-.

        3. One Nokia mobile phone valuing Rs. 17,000/-.

        4. Cash Rs. 4,000/- to 5,000/- with home key.

5.     The learned counsel argued that in the first instance, there was no report about the loss of

any diamond kara, rather the report was about the loss of gold ornaments only.  Further, in the

Insurance Policy also, the coverage was for diamond bangles and not for Karas. Hence, the

demand made by the complainant for loss of diamond Kara was not justified as the same was not

covered under the policy.  She, further, stated that under the special exceptions under section,

‘jewellery and valuables of the policy’, the company was not liable to make payment for the said

loss.  However, the company had already made payment to the complainants for an amount

of Rs. 45,900/-, as per the report of the second Surveyor.  They had also made payment of Rs.

5,100/- as allowed by the District Forum.

6.     In reply, the learned counsel for the respondents has also drawn our attention to a copy of

the Insurance Policy in question saying that under the item, “Jewellery” two diamond bangles at

a price of Rs. 2.5 lakhs were included in the list of items assured.  He mentioned that there was

no difference between a “bangle” and a “kara”, and the State Commission had very clearly spelt

out that the only difference between the two was in the thickness of the item.  A bangle which

had more thickness was often referred to as Kara.  The learned counsel further stated that the

respondents were not at all negligent in any manner, when the theft took place.  He further

referred to the reports submitted by S. P.  Singh, Surveyor cum Investigator where it had been

concluded that the theft claimed of Jewellery as filed by the respondents was correct and genuine

claim and no malafide intention was found in the case.  The State Commission had rightly relied

upon the report of S. P. Singh, Surveyor cum Investigator.  The District Forum had not taken

note of the fact that the complainant, in statement before the police had informed that she had

lost her diamond necklace and diamond kara and diamond churis having value of Rs. 2.5

lakhs.  The learned counsel has drawn our attention to the orders passed by the National

Commission in Baldev Singh Malhi v/s. New India Assurance Co. Ltd. as reported in I (2003)

CPJ 79 (NC), in which, it has been stated that where two investigation reports are contrary to

each other, the first one has to be taken into account.  He also referred to the order of the

National Commission in Murli Agro Products v/s. Oriental Insurance Companyas reported in I

(2005) CPJ 1 (NC) in support of his arguments.

7.     We have examined the entire material on record and given a thoughtful consideration to the

arguments advanced before us.

8.     From the material on record, it is made out that the most crucial document in this whole

episode is the FIR lodged with the police by complainant no. 2, Smt. Saroj Singla on

22.09.2005.  It has been very clearly stated in the said FIR that the total value of the property

stolen was Rs. 10,000/- and in addition to one mobile phone and some cash, gold ornaments and

necklace was stolen.  There was no mention of any diamond kara etc. in the said FIR.  The

complainants have stated subsequently on 23.09.2005 that they had asked the police to add

diamond Kara/Chain, diamond necklace/pendent etc. in the list of items stolen. However a copy

of any FIR or report recorded by the police on 23.09.2005 has not been produced on record.

9.     In the memo of appeal filed before the State Commission, it has been mentioned that it was

explained by the complainants in the statements made to the police that she had lost her diamond

necklace and diamond karas/churis valuing Rs. 2.5 lakhs.  In the letter sent to the insurance

company on 23.09.2005, the details of the loss or any estimate of loss have not been

mentioned.  It has been observed that in the report filed by S. P. Singh, Surveyor cum

Investigator, there is a mention of the FIR lodged on 22.09.2005, but there is no mention of any

subsequent report made to the police on 23.09.2005.  In the report of the second investigator,

Surya Surveyor, it has been mentioned that the second report made to the police appears to be

“second thought”, for the reasons best known to the complainants.  From the above facts, it

becomes clear that in the FIR lodged with the police, there is no mention of any diamond item

and the total loss is stated to be Rs. 10,000/- only.  It is not clear, therefore, as to why the

complainants omitted to mention about the diamond items at the time of lodging the FIR before

the police.  There is a natural presumption, therefore, that the inclusion of the diamond items in

the list of articles is an after-thought.

10.   Further referring to the Policy in question, it has been mentioned against diamond items that

two bangles with a cost of Rs. 2.5 lakhs are in the list of items insured.  Against the gold items,

two karas with value of Rs. 33,500/- have been mentioned.  While, we agree with the contention

of the State Commission that the only difference between a bangle and a kara is of thickness and

thick bangles are generally referred to as karas; in the policy, however, the term bangle has been

used against diamonds whereas the term kara has been used against gold items.  We, therefore,

tend to agree with the line of argument advanced by the learned counsel for the petitioner that in

the instant case, the loss as reported in the FIR relates to gold items only and hence, there is no

justification in giving compensation for any diamond item. We, therefore, find no reason to agree

with the report of the first investigator, as he has not mentioned any valid ground to include the

diamond items in his report while, he has mentioned in detail about the FIR lodged with the

police on 22.09.2005.

11.   Based on the discussions above, we do not find any justification to be in agreement with the

order passed by the State Commission vide which, they have allowed the compensation of Rs.

2.5 lakhs on account of the reimbursement of the value of diamond bangles.  It has been stated in

the order of the State Commission that the complainants had asked the police to add in the

FIR one diamond kara/chain valuingRs. 2.5 lakhs, in addition to some other items.  The State

Commission has, however, not made it clear as to why they have allowed claim for two diamond

bangles.

12.   In the light of the discussion above, this revision petition is allowed and the order passed by

the State Commission is set aside.  It is observed that the order passed by the District Forum

reflects a true appreciation of the facts and circumstances on record and hence it is held that the

complainants are entitled to receive compensation, as per the order passed by the District

Forum.  There shall be no order as to costs.Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER  Sd/-(DR. B.C. GUPTA)MEMBERPSM/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

          FIRST APPEAL NO. 428 OF 2008

(Against the order dated 11.09.2008 in Complaint No. 11 of 2008 of the State Consumer Disputes Redressal Commission, UT Chandigarh) 

New India Assurance Company Ltd. SCO No. 510/14 Pehowa Road, Govind Nagar Ambala Road, Kaithal (Punjab) Through Manager New India Assurance Company Ltd. Regional Office-I Jeevan Bharti Building 124, Connaught Circus New Delhi-110001

                                                      …      Appellant

  Versus

1. Gopal Gupta S/o Sh. Banarsi Dass Proprietor M/s Varun Jute Industries Peoda Road Kaithal (Punjab)

2. M/s Varun Jute Industries Through its Proprietor Gopal Gupta Peoda Road Kaithal (Punjab)

                                                           …      Respondent

 

FIRST APPEAL NO. 431 OF 2008

(Against the order dated 11.09.2008 in Complaint No. 11 of 2008 of the State Consumer

Disputes Redressal Commission, UT Chandigarh)

 

Gopal Gupta S/o Sh. Banarsi Dass Proprietor M/s Varun Jute Industries Peoda Road Kaithal (Punjab)                                  …      Appellant

  Versus

New India Assurance Company Ltd. Regional Office at SCO No.36, Sector 17-A Near Jagat Theatre, Chandigarh And Branch Office at SCO No. 510/14 Pehowa Road, Govind Nagar Ambala Road, Kaithal Haryana

                                                                        …      Respondent

BEFORE:

          HON'BLE MRS. VINEETA RAI, PRESIDING MEMBER

          HON’BLE MR. VINAY KUMAR, MEMBER

Appearance in both matters

 

For Insurance Company      :         Mr. Kishore Rawat, Advocate

 

For Gopal Gupta, Proprietor :         Mr. Jos Chiramel, Advocate

M/s Varun Jute Industries

Pronounced   on :     3 rd   September, 2013

ORDER

PER VINEETA RAI 

1.      First Appeal No.428 of 2008 has been filed by New India Assurance Company Ltd.,

Respondent before the State Consumer Disputes Redressal Commission (hereinafter referred to

as the State Commission), being aggrieved by the order of that Commission which had partly

allowed the complaint filed byGopal Gupta (Proprietor of M/s Varun Jute Industries), Original

Complainant before the State Commission, and directed the Insurance Company to pay a sum of

Rs.15,15,072/- alongwith Rs.20,000/- as costs to the Complainant.  Being aggrieved by the

award of lesser amount towards insurance claim, Complainant has also filed First Appeal No.

431 of 2008 seeking enhancement of the insurance claim to Rs.50,53,475/- alongwith interest @

18% per annum from the date of survey report i.e. 28.03.2007. 

Since the parties as also cause of action is common in both First Appeals, it is proposed

to dispose of these appeals by one common order.  The parties will be referred to in the manner

in which they were referred to in the complaint i.e. Gopal Gupta as Complainant and New India

Assurance Company Ltd. as Respondent. 

2.      Learned Counsels for both parties made oral submissions.

3.      Counsel for Respondent/Insurance Company stated that the State Commission UT

Chandigarh erred in not taking cognizance of their preliminary objection that it did not have the

territorial jurisdiction to try the complaint as no cause of action had arisen within the territorial

jurisdiction of that Commission.  It is an admitted fact that the Complainant had his business

at Kaithal (Haryana), the insurance policies were also taken at Kaithal and the claim was lodged

and repudiated at Kaithal.  Respondent No.1, which is a Branch of Respondent/Insurance

Company, has nothing to do with the issuance of insurance policy or repudiation of the claim and

had only been impleaded as a party by the Complainant to invoke the territorial jurisdiction of

the State Commission UT Chandigarh. 

4.      Counsel for the Complainant had taken a contrary plea stating that since the

Respondent/Insurance Company had a Branch in UT Chandigarh, the State Commission UT

Chandigarh was fully justified in entertaining the complaint and disposing of the

same.  However, the Complainant has filed the appeal only for enhancement of the awarded

amount.

5.      We have carefully considered the preliminary submissions of Respondent/Insurance

Company challenging the territorial jurisdiction of the State Commission UT Chandigarh to try

this case since admittedly this objection was not discussed or decided by the State Commission

in its order.  From a perusal of the records filed by both parties, it is not in dispute that the

premises which were insured by Complainant were in Kaithal, the insurance policy was issued

inKaithal and the claim was filed and repudiated therein.  While it may be a fact that the

Respondent/Insurance Company has a Branch office in Chandigarh, this by itself does not give

the State Commission UT Chandigarh the territorial jurisdiction to entertain the complaint.  This

issue is squarely covered by a judgment of the Hon’ble Supreme Court of India in Sonic Surgical

Vs. National Insurance Company Ltd. [(2010) 1 SCC 135], wherein it has been held as under:“Moreover, even if it had application, in our opinion, that will not help the

case of the appellant. Learned counsel for the appellant submitted that the respondent-insurance company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in   Ambala , then too the complainant can file a claim petition even in Tamil Nadu or Gauhati   or anywhere in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression 'branch office' in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity.”

(Emphasis supplied)

 

          Respectfully following this judgment, we had also ruled accordingly in P.D. Memorial

Religious & Educational Association Vs. New India Assurance Company Limited (First Appeal

No. 448 of 2008 decided on 18.04.2013.

6.      Learned Counsel for the Complainant fairly concedes that under these circumstances he

would have no objection if this case is heard de-novo by the Court having the territorial

jurisdiction to decide the same.

7.      In view of the above facts, the order of the State Commission UT Chandigarh is set aside

on ground of territorial jurisdiction. The case is remitted back to the State Commission UT

Chandigarh to transfer the complaint alongwith the evidence recorded by it to the Haryana State

Consumer Disputes Redressal Commission within two weeks from the date of receipt of this

order for disposal as per procedure laid down in law.  Parties through their Counsel are directed

to appear before the Haryana State Consumer Disputes Redressal Commission on

09.12.2013.  Since it is an old case pertaining to the year 2008, Haryana State Commission is

requested to dispose of the complaint as expeditiously as possible and preferably within a period

of six months from the date of first appearance. 

          Counsel for the Respondent/Insurance Company states that in compliance with the order

dated 28.01.2009 of this Commission the Insurance Company had deposited a sum of Rs.10

Lakhs with the State Commission, which Complainant was at liberty to withdraw.  Counsel for

the Complainant states that Complainant has not withdrawn that amount.  In view of this,

Counsel for the Respondent/Insurance Company states that the said amount be refunded to it.  If

that be so, the State Commission UT Chandigarh is directed to refund the amount of Rs.10 Lakhs

deposited by the Respondent/Insurance Company to the Respondent/Insurance Company with

accrued interest.      

 

Sd/-

(VINEETA RAI)

PRESIDING MEMBER

Sd/-

(VINAY KUMAR)

MEMBER Mukesh              

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO. 2199 OF 2008(From the order dated 17.04.2008 in Appeal Case No. 64/2008 of the State Consumer Disputes Redressal Commission, U.T., Chandigarh)

 

ICICI Prudential Life Insurance Co. Ltd. Having its Regd. Office at:ICICI Prulife Towers 1089, Appasaheb Marathe Marg Prabhadevi Mumbai – 400025 Branch at: ICICI Prudential Life Insurance Co. Ltd. SCO 9-10, 1st Floor Sector 9-D, Madhya Marg, Chandigarh

                                                    … Petitioner/Opp. Party (OP)

                                                   VersusDr. Sudhir Kumar Garg Residing at House No.1121 Sector 7, Panchkula – 134109 Haryana

                                                         …Respondent/Complainant

BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner             :         Mr. Sanjay K. Chadha, Advocate

For the Respondent         :         NEMO

PRONOUNCED ON       4 th   September,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER          

This revision petition has been filed by the petitioner/OP against the order dated

17.04.2008 passed by State Consumer Disputes Redressal Commission, UT Chandigarh (in

short, ‘the State Commission’) in Appeal Case No. 64 of 2008  – ICICI Prudential Life Insurance

Co. Ltd. Vs. Dr. Sudhir Kumar Garg by which, while dismissing appeal, order of District Forum

allowing complaint was upheld. 

2.      Brief facts of the case are that complainant/respondent obtained ICICI Prudential Forever

Life Policy for a sum of Rs.2,19,000/- on 31.1.2002 for a term of 20 years by paying annual

premium of Rs.10,037/-.  After making payment of 5 annual premiums, complainant surrendered

the policy on guaranteed surrender value as per policy documents and requested the

OP/petitioner to confirm the cash value of the surrendered policy which was

Rs.56,360/-. According to the complainant, OP vide letter dated 23.5.2007 intimated to the

complainant that surrender value was Rs. 23,681.26, which was arrived at by assigning some low

fraction value to guaranteed additions.  Alleging deficiency on the part of OP, complainant filed

complaint. OP resisted complaint and submitted that complainant initially approached

Ombudsman which was quasi-judicial authority and his complaint was dismissed vide order

dated 12.7.2007 and in such circumstances, complaint filed before District Forum is not

maintainable.  It was further submitted that full value of guaranteed additions was payable only

when the policy resulted in a claim by death or by maturity and guaranteed additions on

surrendering policy would be restricted to cash value of the said additions arrived at application

of discounting factor and surrender value payable to the respondent as on 1.6.2007 was

Rs.23,762/- and prayed for dismissal of complaint. Learned District Forum after hearing both the

parties allowed complaint and directed OP to pay Rs.55,155/- along with compensation of

Rs.5,000/- for harassment and Rs.1,500/- as costs.  Appeal filed by the petitioner was dismissed

by learned State Commission vide impugned order against which this revision petition has been

filed.  

3.      Authorized Representative of respondent appeared on 23.4.2013 and submitted that he

would be filing written arguments and he would not be appearing on next date.  Authorized

Representative sent written submissions by post, but did not appear on 27.8.2013.  Heard learned

Counsel for the petitioner and perused  record as well as written submissions submitted by

respondent. 

4.      Learned Counsel for the petitioner submitted that as respondent surrendered policy after

paying 5 annual premium, he was not entitled to full value of guaranteed additions and was

entitled to only Rs.24,000/- on 25.9.2007; even then, learned District Forum has committed error

in awarding Rs.55,155/- and learned State Commission further committed error in dismissing

appeal; hence, revision petition be allowed and impugned order be modified. 

5.      Perusal of record clearly reveals that respondent obtained policy for a period of 20 years

and surrendered after making payment of 5 annual premiums.  Copy of policy at page 40-A of

the paper book clearly reveals that policy was subject to and governed by the terms of the policy

document and all the terms and schedule contained therein (enclosed) shall together form a

single agreement.  As per terms of policy documents, bonus was payable as under: 

                        “Bonus:Guaranteed additions and bonuses (if applicable, under with profit

policies) will be payable in terms of the prospectus and Company’s

internal guidelines and policies and Insurance Regulatory and

Development Authority (IRDA) rules and regulations”.

 

6.      Thus, it becomes clear that bonus was payable as per guidelines and policies issued by

IRDA and learned State Commission committed error in coming to the conclusion that there was

no evidence that terms of the prospectus and Company’s internal guidelines and policies and

Insurance Regulatory and Development Authority (IRDA) rules and regulations were brought to

the notice of the respondent.  When these documents were part of the policy itself, respondent

cannot say that he did not receive policy documents and terms and conditions and in such

circumstances, respondent is bound by the terms and conditions of the policy documents as held

by Hon’ble Apex Court in 2013 (I) SCALE  410 – Export Credit Guarantee Corpn. of India Ltd.

Vs. M/s. Garg Sons International  

7.      Learned State Commission further observed that there was no evidence as to how petitioner

arrived at the figure of approved guaranteed additions. Perusal of record clearly reveals that

Insurance Ombudsman by order dated 12.7.2007 after calculation came to the conclusion that

respondent was entitled to Rs.23,762/- and not Rs.56,360/-, as per calculations in paragraph 3 of

the order which were provided by Vice President’s claim. In such circumstances, it cannot be

said that without any calculations petitioner arrived at the figure of Rs.23,762/-. 

8.      Learned Counsel for the petitioner also placed reliance on II (1996) CPJ 69 (NC) – Branch

Manager, LIC of India & Anr. Vs. A. Paulraj in which also the cash value of any existing vested

bonus additions was permissible and it was observed as under:”Guaranteed Surrender Value:  This policy can be surrendered for cash

after the premiums have been paid for at least three years. The minimum

surrender value allowable under this policy is equal to 30% of the total

amount of the mentioned premiums paid excluding premiums for the first

year and all extra premiums and/or additional premiums for accident

benefit that may have been paid. The cash value of any existing vested

bonus additions will also be allowed.

                  

                                                                     (Emphasis supplied)The question for decision, therefore, is as regards the cash value of any

existing bonus additions. The contention of the insured is that the cash

value of the bonus should be the same as the accrued bonus thereon even

before the maturity of the policy.  That obviously is not the correct in

terms of Condition No. 7. If the intention was to pay the entire bonus

accrued on the policy at any given point of time before maturity, then the

concept of cash value would not have been incorporated in this condition

for calculating the guaranteed surrender value. The total amount of bonus

is paid on the maturity of the policy along with the final payment and till

then it remains with the LIC which can utilise it for investment

purposes.  If it has to pay the accrued bonus earlier than the final payment,

the Condition No. 7 introduces the concept of cash value of the total

accrued bonus upto that point to time, and the cash value has been

calculated according to the surrender value factor which has been clearly

indicated in the sheet showing calculation of the surrender value of the

policy.  We, therefore, find that the State Commission has erred in

construing the cash value to be the same as the accrued bonus even, when

paid before the maturity”.

                  

 

9.      In the light of aforesaid judgment, it becomes clear that respondent was entitled to only

Rs.23,762/- on account of pre-mature surrender of the policy and learned District Forum

committed error in awarding Rs.55,155/- and learned State Commission further committed error

in upholding order of District Forum and revision petition is liable to be allowed. 

10.    Consequently, revision petition filed by the petitioner is allowed and impugned order dated

17.04.2008 passed by learned State Commission in Appeal No. 64 of 2008 – ICICI Prudential

Life Insurance Co. Ltd. Vs. Dr. Sudhir Kumar Garg is set aside and complaint is dismissed.  We

hold that surrender value intimated by petitioner to the respondent is correct and respondent is

entitled to receive cheque of only Rs.23,681.26 from the petitioner along with 9% p.a. interest

from 23.5.2007 till realization of amount. There shall be no order as to costs.                                                                                                       

      ..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERK

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO.   3061 OF 2008 (From the order dated 03.05.2008 in Appeal No. 02/2008/CSD/09 of the State Consumer Disputes Redressal Commission, U.T. of Daman and Diu and Dadra and Nagar Haveli at DIU)

 

United India Insurance Co. Ltd. Dhanlaxmi Market, Subhash Road, Veraval.

                                                         … Petitioner/Opp. Party (OP)

                                                   Versus1. Smt. Havaben W/o Sabhirbhai Mansuri, Adult, R/o Vanakbara, Diu.

2. M/s. Arif Enterprise, Through Partner Suleman Haji, Ismail, Navabandar, Taluka: UNA, Junagadh District, Gujarat.

                         …Respondents/Complainants

BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner             :         Mr. A.K. De, Advocate

For the Res. No. 1           :         Mr. R.M. Vithlani, Advocate

For the Res. No. 2           :         Ms. Kalpana, Advocate

 

PRONOUNCED ON       4 th   September ,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER          

This revision petition has been filed by the petitioner/OP against the order dated 3.5.2008

passed by the State Consumer Disputes RedressalCommission, U.T. of Daman and Diu and

Dadra and Nagar Haveli at DIU (in short, ‘the State Commission’) in S.A. No.   02/2008/CSD/09

– Smt. Havaben Vs. United India Ins. Co. Ltd. & Anr. by which, while allowing appeal, order of

District  Forum allowing complaint was set aside. 

2.      Brief facts of the case are that complainant/Respondent No. 1’s

husband Sabirbhai Mansuri was a driver of truck no. GJ – 17-X-5373 owned by OP No.

2/Respondent No. 2 and truck was insured by OP No. 1/ petitioner. Truck met with an accident

on 24.12.2004 and Sabirbhai Mansuri died.  It was further alleged that package policy in which

personal accident insurance was also incorporated was taken and in case of accident

owner/driver were entitled to compensation of Rs.2,00,000/-  in case of death.  Complainant

being wife of Sabirbhai Mansuri filed claim with OP No. 1 which was repudiated on 26.4.2006

on the ground that only the owner was entitled to get compensation.  Alleging deficiency on the

part of OP, complainant filed complaint before District Forum. OP resisted claim and submitted

that claim was rightly repudiated, as only owner-driver was covered in the policy and prayed for

dismissal of complaint.  Learned District Forum after hearing both the parties, dismissed

complaint.  Appeal filed by the complainant was allowed by learned State Commission vide

impugned order and directed petitioner to pay Rs.2,00,000/- along with 6% p.a. interest and

further awarded Rs.10,000/- as cost against which, this revision petition has been filed. 

3.      Heard learned Counsel for the parties and perused record. 

4.      Learned Counsel for the petitioner submitted that as per terms and conditions of the policy,

owner-driver was covered under the policy and learned District Forum rightly dismissed

complaint, but learned State Commission has committed error in allowing appeal; hence,

revision petition be allowed and impugned order be set aside.  On the other hand, learned

Counsel for the Respondent No.1 submitted that order passed by learned State Commission is in

accordance with law; hence, revision petition be dismissed.  Learned Counsel for the Respondent

No. 2 supported Counsel for the Respondent No.1.       

5.      Learned State Commission has held that there was no dispute that Sabirbhai Mansuri was

employed by Respondent No. 2 as a driver and there was no dispute that package policy was

taken by Respondent No. 2 from petitioner and there was no dispute that driver died in accident. 

6.      Now, the main question to be decided in this case is as to

whether;  deceased Sabirbhai Mansuri was covered under the policy or not.  Learned District

Forum came to the conclusion that deceased was neither owner of the vehicle, nor policy was

issued in his name; hence, he was not covered under the policy, whereas learned State

Commission came to the conclusion that driver as well as owner both are independently covered

under the package policy and further observed the words “owner-driver” are employed to cover

both the situations and not the one that only the owner-driver is covered and that the driver who

is not the owner is not covered. 

7.         Perusal of insurance policy clearly reveals that this policy was taken by OP No. 2 through

partner Suleman Haji Ismail and personal accident cover for “owner driver” was provided to the

extent of Rs.2,00,000/-.  Section 4 of the package policy reveals that in case of death of owner-

driver of the vehicle in direct connection with the vehicle insured, etc., he was entitled to 100%

compensation.  The proviso 4 of Section 4 runs as under:

                   “4.     This cover is subject to:(a)      The owner-driver is the registered owner of  

     the vehicle insured herein;(b)      The owner-driver is the insured named in this  

     policy;(c)     The owner-driver holds an effective driving

    license, in accordance with the provisions of  

    Rule 3 of the Central Motor Vehicles Rules,

   1989, at the time of the accident.

 

 

This proviso makes it very clear that owner-driver means, he must be registered owner of the

vehicle and his name must be shown as insured in the policy and further, owner-driver must hold

effective driving licence at the time of accident.  Learned Counsel for the petitioner has also

placed Annexure ‘B’ at Page 36 of the paper book and Clause ‘A’ of GR 36 runs as under: 

                   “A.     Compulsory Personal Accident Cover for

Owner-Driver

 

Compulsory Personal Accident Cover shall be applicable under

both Liability only and Package policies. The owner of insured vehicle holding an

effective driving licence is termed as Owner-Driver for the purposes of this

section.

 

Cover is provided to the Owner-Driver whilst driving the vehicle including

mounting into/dismounting from or travelling in the insured vehicle as a co-

driver.

 

NB:   This provision deals with Personal Accident cover and only the registered

owner in person is entitled to the compulsory cover where he/she holds an

effective driving licence.  Hence compulsory PA cover cannot be granted where a

vehicle is owned by a company.

 

 

8.      Perusal of terms and conditions of package policy and GR 36 makes it very clear that

person holding an effective driving licence for the purpose of this policy and compulsory

personal accident cover cannot be granted when the vehicle is owned by a Company.  Learned

State Commission has committed error in arriving at the conclusion that driver of the vehicle is

also covered under the policy, whereas only owner of the vehicle that too having valid driving

licence is covered under this policy only if insurance policy has been issued in his name.   In the

case in hand, insured is Respondent no. 2, i.e., M/s. Arif Enterprise and in such circumstances,

by no stretch of imagination, deceased Sabhirbhai Mansuri who was driver was covered under

package policy issued by petitioner and learned State Commission committed error in allowing

appeal.  Learned District forum rightly dismissed complaint, as deceased was not covered under

the policy. 

9.      Learned State Commission has allowed appeal on the ground that if there is any ambiguity

with regard to clauses in the insurance policy and when two interpretations are reasonably

possible one of which favours policy holder, is to be accepted.  We agree with this proposition of

law, but we do not find any ambiguity in the clauses of policy issued by the petitioner and in

such circumstances, complainant being beneficiary are not entitled to any claim and petitioner

has not committed any deficiency in repudiating the claim. 

10.    Consequently, revision petition filed by the petitioner is allowed and impugned order dated

3.5.2008 passed by learned State Commission is set aside and order of District Forum dated

4.12.2007 is affirmed.  There shall be no order as to costs.   

                                     ..……………Sd/-………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER  

..…………Sd/-…………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.   1896 OF 2008 (From the order dated 10.03.2008 in First Appeal No. FA-07/849of Delhi State Consumer Disputes Redressal Commission) 1.  M/s. New India Assurance Co. Ltd. R.O. – I, Jeevan Bharthi Building, Connaught Place, New

Delhi. 2.  The New India Assurance Co. Ltd. Through its Divisional Manager, CDU, 31700, C-

2 Mahavir Bhawan, 4th F. Karampura Community Complex New Delhi                                                        ...  Petitioner(s)

 Versus Sh. Ajit Kumar B-I, Suneja Tower-I, District Centre, Janakpuri,New Delhi – 110058

                                 … Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s)   Ms. Pankaj Bala Varma, AdvocateFor the Respondent   Mr. M.C. Premi, Advocate

With Respondent in person 

PRONOUNCED   ON :     4 th   SEPT.     2013 O R D E R PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 by the petitioner, New India Assurance Co. Ltd. (hereinafter referred to as ‘Insurance

Company’) against the impugned order dated 10.03.2008 passed by the Delhi State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. FA-07/849,

“M/s. New India Assurance Co. Ltd. versus AjitKumar”, vide which while allowing the appeal,

the order passed by District Consumer Disputes Redressal Forum, Janakpuri allowing the

complaint filed by the respondent was slightly modified and the awarded amount of Rs.2.65 lakh

by the District Forum was reduced by 5% on account of depreciation of the value of the vehicle

in question.  

2.     Brief facts of the case as contained in the complaint are that the respondent/complainant is

doing trading business of communication accessories at Suneja Tower-I, District

Centre Janakpuri, New Delhi.  He got his Maruti Zen Car bearing registration number DL-09-

CE-8578 insured with the petitioner/OP vide policy no. 311700/31/04/01/00001575 covering the

period from 29.06.2004 to 28.06.2005 for a sum of Rs.2.65 lakh on payment of a premium

amount of Rs.9,841/-.  It has been stated by the complainant that on 18.02.05 at about 11:30

p.m., he was coming back from his office at District Centre Janakpuri by the above-said car to

his residence at C Block, Janakpuri.  When he reached near Bharti College, he felt a strong need

for urination.  He stopped his car on the left side of the road, when there was no one in the

vicinity at that time.  The complainant switched off his car, took out the ignition key and went

for urination.  When he returned back, he did not find his car there.  The briefcase of the

complainant was kept in the car, which contained important documents, including a set of

documents of the car as also the second key of the car.  The complainant informed the local

Police about the theft of the car and also the financing bank and the respondent insurance

company.  An FIR no. 85/05 was registered at Police Station Janakpuri, New Delhi.  On

25.5.2005, he submitted the requisite claim papers vide claim No. 311700/31/04/0652 with the

respondent after fulfilling all the requirements.  However, the claim was repudiated vide letter

dated 24.08.2006 on the recommendations of the investigator.  The complainant filed the

consumer complaint in question, which was allowed by the District Forum vide order dated

24.09.2007   and a sum of Rs.2.65 lakh was allowed to be given to him, besides a sum of

Rs.7,000/- as compensation for harassment.  An appeal against this order was allowed by the

State Commission on 10.03.2008 and the said order was slightly amended and the State

Commission reduced the awarded amount of Rs.2.65 lakh by 5% on account of depreciation and

maintained the rest of the order.  The present revision petition has been filed against this order of

the State Commission. 

3.     At the time of arguments before us, learned counsel for the petitioner Insurance Company

stated that the complainant/respondent, as per his own version had left the car unlocked on road

and hence violated the terms and conditions of the insurance policy in question.  It had been

stated in the general conditions to the policy that, “the insured shall take all reasonable steps to

safeguard the vehicle from loss or damage…….”.  In his statement recorded

by Shri Sanjeev Nijhawan, investigator, appointed by the petitioner, the complainant stated that,

“at the time of incident, the key was in the car which has been taken away with car and duplicate

key is with me.”  In the complaint, however, he stated that he had taken away the ignition key

and went for urination and the second key of the car was there in the briefcase, kept inside the

car.  This was an apparent contradiction in the stand taken by the complainant.  Learned counsel

has drawn our attention to the order passed by this Commission in “The New India Assurance

Co. Ltd. versus T.V. Sarathi” [RP No. 2555 of 2005 dated 19.03.2009], in which it has been

stated that the insurance company would not be liable to loss/damage of the unattended property,

if the insured was found negligent in safeguarding the said property.  Further, in another case,

“Jagdish Parshad versus ICICI Lombard General Insurance Co. Ltd.” [II (2013)CPJ 578 (NC)],

the National Commission had taken a similar view saying that negligence on the part of the

complainant leaving the vehicle unattended and unlocked was sufficient to hold that there was

violation of terms and conditions of the policy.  The facts in this case were almost similar to the

present case as the driver and cleaner had left the vehicle unattended on road, with keys within

the said vehicle for urination and in the meanwhile, some unknown persons had taken away the

said vehicle. 

4.     Learned counsel for the respondent stated that as mentioned in the complaint, it was very

clear that he had taken the ignition key of the car, when he went for urination.   In the statement

recorded by the investigator, the version that duplicate key was with him had been added

later.  Learned counsel further stated that the complainant had lodged report with the nearest

police station.  He further stated that even if, there was violation of the terms and conditions of

the policy, the claim should at least be settled on ‘non-standard’ basis.  Learned counsel invited

our attention to the case “National Insurance Company versus Lajwanti” [II (2007) CPJ 48

(NC)]”, saying that when the factum of theft was not doubtful, the order passed allowing the

claim was not illegal.  Further in case, “National Insurance Co. versus Ajay Kanwar” [II (2008)

CPJ 381 NC], the National Commission has held that the appointment of an investigator was not

backed by any statute and hence there report should not be given any credence.  In “National

Insurance Co. Ltd. versus Sanjay Shivhare” [Revision Petition No. 2393/2003 and 2/2004

decided on 13.09.2007], the National Commission laid down the guidelines for settlement of

claims on ‘non-standard’ basis.  

5.     We have examined the entire material on record and given a thoughtful consideration to the

arguments advanced before us. 

6.     From the factual matrix of the case, it becomes abundantly clear that the complainant has

violated the terms and conditions of the policy, by leaving the car unlocked on the road-side in

the late hours of the night.  As per the version contained in the complaint, he took away the

ignition key with him and the duplicate key was in a briefcase inside the car, whereas in his own

statement before the investigator, the complainant stated that the main key had been taken away

with the car and the duplicate key was with him.  There is a clear contradiction in the stand taken

by the complainant in his complaint and in his statement made before investigator.  Had the

ignition key been with him, he would have mentioned this fact in FIR and submitted key along

with FIR to Police Station.  Further, it is very clear that the complainant had his office at District

Centre, Janakpuri and at the time of alleged incident, he was going to his residence at ‘C’

BlockJanakpuri.  It is highly improbable that while travelling from his place of work to his

residence, both of which are located in the same colony of New Delhi, the complainant felt such

a strong urge for urination that he had to stop his car on a public road and then go for

urination. The investigation made by the Police by which they have sent untraced report, makes

it appear that it is a concocted story built-up by the complainant for lodging claim with the

insurance company.  It has been stated in the report of the investigator that the complainant

unofficially informed him that his car was snatched from the same spot by some unknown

persons at gun-point.  The investigator reached the conclusion that the complainant failed to take

care of the car as is expected from a person of ordinary prudence.  It has been stated in the

written statement filed by the insurance company that the

maxim, “sic utere tuo ut alienum loedas” – A person is held liable at law for the consequence of

his negligence.” 

7.     The citations quoted by the learned counsel for the petitioner at the time of arguments make

it clear in categorical terms that when the complainant had left the vehicle unattended and

unlocked, it amounted to violation of terms and conditions of the policy and the claimant was not

liable to be paid for compensation.  The citations cited by the respondent do not help him in any

manner, because there is a clear violation of the terms and conditions of the policy in the present

case. 

8.     Based on the discussion above, this revision petition is allowed and the orders passed by the

District Forum and State Commission are set aside and the complaint is ordered to be

dismissed.  There shall be no order as to costs.Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER  Sd/-(DR. B.C. GUPTA)MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 8 OF 2008

(Against the order dated 12.09.2007 in Complaint Case No. 07/123 of theDelhi State Consumer Disputes Redressal Commission) 

M/s Tilda Riceland Pvt. Ltd. 42nd Milestone, NH 8 Delhi Jaipur National Highway Gurgaon

                                                                         …      Appellant

Versus

1.  M/s United India Insurance Co. Ltd. Regional Office Kanchenjunga Building, 8th Floor 18, Barakhamba Road New Delhi-110001                 

2.  Branch Manager United India Insurance Co. Ltd. Branch Office-I 30-31A, Jeevan Vikas, 4th Floor Asaf Ali Road New Delhi-110002

                                                         …      Respondents

 BEFORE:

HON'BLE MRS. VINEETA RAI, PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

 For Appellant                 :    Mr. S.M. Tripathi, Advocate

For Respondents           :    Mr. Kishore Rawat, Advocate

 Pronounced : 4 th   September, 2013  

ORDER 

PER VINEETA RAI    

1.       Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as the State

Commission) had dismissed this case at the admission stage on the ground that since this is a

case of charging of extra premium and seeking refund of the same, it is not a consumer dispute

and, therefore, does not fall within the ambit of deficiency in service on the part of Insurance

Company and the complaint, if any, pertains to a breach of contract between the parties for

which remedy lies in the Civil Court.  Being aggrieved by this order, M/s Tilda Riceland Pvt.

Ltd., Appellant herein and Original Complainant before the State Commission, have filed the

present First Appeal.

2.       Briefly stated, the facts of the case as per the Appellant/Complainant are that it is a

company in the business of buying, selling, distributing and dealing in import and export of

rice.  It also carries on research and development in all spheres of production, processing and

DNA testing of rice etc.  It had obtained an Erection All Risk (EAR) Policy from the

Respondent/Insurance Company by paying a premium of Rs.66,76,171/- which was payable in

installments over a period from 01.04.1999 to 01.10.2002.  It was contended that on a subsequent

date, while examining the insurance policy and the endorsement, the Appellant/Complainant

came to know that under the EAR Policy and subsequent extensions the premium charged for the

Earthquake risk had not been in accordance with the Memorandum of Understanding (MoU)

entered into between both parties from time to time and that the Respondent/Insurance Company

had wrongly charged the full premium whereas since the coverage for this risk was only 20% of

the sum insured Respondent/Insurance Company could not have arbitrarily charged full premium

against a limited liability and Appellant/Complainant was entitled to 50% refund which

amounted to Rs.17,09,679/- with 18% interest apart from 1,00,000/- on account of harassment

and mental agony and Rs.50,000/- as litigation costs.  As stated earlier, the State Commission

dismissed the complaint at the admission stage itself holding it not to be a consumer dispute and

observing that the Appellant has a civil remedy.  Hence, the present First Appeal.

3.       Learned Counsels for both parties made oral submissions.  

4.       Counsel for the Appellant/Complainant contended that the State Commission had wrongly

dismissed the complaint on the ground that the issue involved relates only to breach of contract

and not deficiency in service.  It was stated that the Appellant had obtained EAR Policy from the

Respondent/Insurance Company effective from 01.04.1999 to 31.03.2003 in respect of his

business. Before obtaining the insurance policy, a Memorandum of Understanding was entered

into and signed by the parties in 1999 specifying the coverage required by the

Appellant/Complainant.  As per the MOU in 1999, which was confirmed by subsequent MoUs in

2001 and 2003, the earthquake risk in the policy would be on first loss basis by which the

insurance liability under the claim would be limited to 20% of the project sum insured and for

this limit on liability a discount of 50% on earthquake premium would be admissible under the

Tariffs.  Later, Appellant/Complainant came to know that the Respondent/Insurance Company

had not granted 50% deduction in respect of the earthquake premium and as soon as it came to

know of the same, Appellant/Complainant wrote a letter dated 14.02.2005 to the

Respondent/Insurance Company seeking refund of Rs.16,77,608/- charged in excess from

him.  Since no response was received, Appellant/Complainant filed a complaint before the State

Commission seeking refund and other reliefs as stated earlier. 

Counsel for the Appellant/Complainant contended that there was clearly deficiency in

service and unfair trade practice on the part of Respondent/Insurance Company in not honouring

the commitment made in the MoU/insurance policy.  During the course of arguments, Counsel

for the Appellant/Complainant brought to our notice the first MoU wherein it was stated in Para-

B that the EAR covers earthquake risk on first loss basis and also the renewed MoU dated

28.03.2003 where in Clause-VII it is reiterated that the coverage for earthquake risk shall be on

first loss basis for which 50% discount on the premium towards this head is there and insurance

liability under a claim shall be then limited to only 20% on the project sum insured.  Since the

premium was not bifurcated under different heads in the policy, there was some delay on the part

of Appellant/Complainant in detecting this unfair trade practice.  The State Commission without

appreciating the fact that there was clearly an unfair trade practice on the part of

Respondent/Insurance Company dismissed the complaint in limine without even issuing notice

to the Respondent/Insurance Company and thereby depriving them of an opportunity to cross-

examine the Respondent/Insurance Company. 

5.       Counsel for the Respondent/Insurance Company on the other hand contended that the State

Commission had rightly held that the dispute is not a consumer dispute because what should be

the premium and whether the premium has been rightly charged or that the premium has to be

refunded or not, are purely questions of breach of contract where no service per se is involved

and, therefore, the same would not fall within the purview of the Consumer Protection Act,

1986.  Further, a perusal of the MoU entered into between the parties in the year 1999 would

clearly show that there was no clause with regard to discount in the earthquake premium. The

policy was issued on the basis of a proposal form submitted by the Appellant/Complainant and a

perusal of the policy would also show that normal excess had been provided and the policy

document nowhere stated that the Insurer would be liable only to the extent of 20% in case of

earthquake claim.  Since a normal policy without any stipulation was issued, the

Respondent/Insurance Company was right in charging 100% premium without

discount.  Further, the MoU in question was entered into between the parties in the year 1999

and the claim for refund of premium was raised in the year 2005 and, therefore, the claim, if any,

was time barred.    6.       We have heard learned Counsels for the parties and have also carefully gone through the

evidence on record, including the MoU and the insurance policy. Clearly from the order of the

State Commission it is evident that since the case was dismissed in limine, the State Commission

has not gone into the details of the MoU of 1999, the insurance policy as also the subsequent

MoUs including those dated 28.03.2003 which deal with various details and specifically the

earthquake risk covered.  The State Commission has also not considered the premium chargeable

as laid down in the tariffs by the Tariff Advisory Committee appointed under the Insurance Act,

1938, which have a bearing in this case.  We are also not in agreement with the finding of the

State Commission that this is not a consumer dispute since the case pertains to a breach of

contract.  In Synco Textiles Pvt. Ltd. Vs. Economic Transport Organisation & Ors. [I (1999) CPJ

40] this Commission had held that the mere fact that the default or deficiency on the part of the

carrier may also amount to a breach of contract under the general law will not in any way affect

the jurisdiction of the forums set up under the special law namely the Consumer Protection Act,

1986 and once it is found that there is hiring of service for consideration and that loss has been

caused to the complainant on account of any deficiency in rendering the service, the aggrieved

consumer is entitled to seek his remedy under the Consumer Protection Act.  In the instant case,

the State Commission instead of going into all these aspects erred in dismissing this case at the

admission stage. 

7.       In the interest of justice, we, therefore, remit the case back to the State Commission to hear

it afresh in accordance with law by affording opportunity to both parties to lead their evidence

and other arguments.  Nothing said in this order should be construed to be an opinion on the

merits of the case.  Parties through their Counsels are directed to appear before the State

Commission on 02.12.2013.

  Sd/-

(VINEETA RAI)

PRESIDING MEMBER 

Sd/-

(VINAY KUMAR)

MEMBER

 Mukesh   

 

 

 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       

REVISION PETITION NO.   2893 to 2895 OF 2008 (From the order dated 01.04.2008 in Appeal No.113 of 2006 of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla)

 

Himachal Road Transport Corporation Through its Managing Director, Shimla – 171003

                                                     … Petitioner/Complainant

                                                   Versus1. National Insurance Co. Ltd. through its General Manager, 3 Middleton Street, Calcutta

2. National Insurance Company Ltd. Divisional Office Dehradoon through its Divisional Manager, Himland Hotel, Circular Road, Shimla 171001

       … Respondents/Opp. Parties (OP)

 BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioners           :       Mr. G.P. Singh, Advocate

For the Respondents        :    Ms. Hetu Arora Sethi, Advocate    

PRONOUNCED ON       5 th   September ,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

As these revision petitions arise out of common order of learned State Commission

involving same question of law, we are deciding all these revision petitions by common order. 

2.      These revision petitions have been filed by the petitioner/complainant against the order

dated 1.4.2008 passed by the Himachal Pradesh State Consumer

Disputes Redressal Commission, Shimla (in short, ‘the State Commission’) in Appeal Nos. 113,

114 & 220 of 2008 – National Insurance Co. Ltd. Vs. Himachal Road Transport Corporation by

which, while allowing appeal, order of District Forum allowing complaint was set aside. 

3.      Brief facts of the case are that complainant/petitioner insured 8500 employees with

OP/respondent for Rs.3,00,000/- each for a period of one year i.e. from 22.12.1995 to

21.12.1996.  During the subsistence of insurance policy, 17 employees of the

complainant/Corporation died and OP made payment in respect of the death cases, but has not

made payment in respect of death claims of remaining employees.  In separate complaints it was

alleged that KitabSingh died on 4.8.1996, Gajender Singh died on 16.5.1996 and Jagat Ram-I

died on 21.6.1996.  Complainant lodged complaint in respect of death of aforesaid employees

and OP asked complainant to submit original documents of post-mortem report and

FIR.   Complainant informed OP that original documents are lying with the Police authorities

and OP assured that claims would be settled, but so far claims have not been settled.  Alleging

deficiency on the part of OP, complainant filed complaint before District Forum. OP/respondent

resisted complaint and submitted that complaint was not maintainable due to acts, deeds and

conduct of the complainant. District forum has no jurisdiction to entertain the present complaint

and further submitted that deceased was not covered under the policy and prayed for dismissal of

complaint  Learned District Forum after hearing both the parties allowed all the complaints and

directed OP to pay Rs.3,00,000/- along with 9% p.a. interest and Rs.3,000/- as cost in each

case.   Appeals filed by the OP were allowed by learned State Commission vide impugned order

against which, these revision petitions have been filed. 

4.      Heard learned Counsel for the parties and perused record. 

5.      Learned Counsel for the petitioner submitted that merely by non-inclusion of names of

deceased persons by inadvertence in the list of employees, respondent had no right to repudiate

the claim and learned District Forum rightly allowed the complaint, but learned State

Commission has committed error in allowing appeal; hence, revision petitions be allowed and

impugned order be set aside.  On the other hand, learned Counsel for the respondent submitted

that as there was no coverage of aforesaid three employees, learned State Commission has not

committed any error in dismissing complaint; hence, revision petitions be dismissed.

6.      It is not disputed that deceased persons were employees of the petitioner. It is also not

disputed that names of aforesaid three employees in whose respect complaints have been filed

were not included in the list of employees given by petitioner to the respondent for whose benefit

insurance coverage has been taken by the petitioner from respondent.  As names of deceased

employees were not included in the list of employees covered under insurance policy, petitioner

was not entitled to get claim in respect of aforesaid three deceased employees and learned State

Commission has not committed any error in allowing appeal and dismissing complaint. 

7.      Learned Counsel for the petitioner submitted that by inadvertence, names of aforesaid three

employees were not included in the list, but the same were included subsequently, when the

mistake was detected, vide letter dated 20.02.1997; hence, petitioner is entitled to get

compensation.  This argument is devoid of force because at the time of accident, names of

aforesaid three employees were not forming part of 8500 employees who were given insurance

coverage under the policy.  Admittedly, death of aforesaid three employees occurred before

20.02.1997 and in such circumstances, by correction in the list after death of aforesaid

employees, petitioner does not get any benefit. 

8.      In the light of aforesaid discussion, we do not find any illegality, irregularity or

jurisdictional error in the impugned order and revision petitions are liable to be dismissed. 

9.      Consequently, revision petitions filed by the petitioner are dismissed with no order as to

costs.                                                                                       

                                     ..……………Sd/-………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION NEW DELHI  

ORIGINAL PETITION     NO. 398 OF 2000   

1. Adarsh Chemicals & Fertilizers Ltd. Udhna, Surat – 394210 Gujarat

 2. Dr.Prakash D.Patel Director Adarsh Chemicals & Fertilizers Ltd. Udhna, Surat – 394210 Gujarat

                                                                             …  Complainants

Versus

United India Insurance Company Ltd. Head Office, 24, Whites Road Chennai – 600014

                                                          …  Opposite Party

 

BEFORE:

      HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER

      HON’BLE DR. S.M.KANTIKAR, MEMBER

  

For the Complainants  : Mr. Anil Nauriya, Advocate

   With Ms. Sumita Hazarika, Advocate

For the Opposite Party  :  Mr. P.K. Seth, Advocate

 

PRONOUNCED ON     05.09.2013  

ORDER 

JUSTICE J.M. MALIK

1.      This  complaint  was  filed  before this Commission, on 01.02.1999.  The

Registry  has  given  wrong number as, 398 of 2000.   They are directed to be more careful. 

2.      This is a  unique case,  where  the Insurance  Company contends that report of  its

Surveyor should be discarded because this witness and his report cannot  be said to be

guileless.   The Insurer were to appoint another  Surveyor,  but  for the reasons best  known

to  them,  the  needful was not done.  Can a party claim the benefit  by keeping the facts

under the hat or  to burry one’s head in the sand?.

 

3.      The facts of this case are these.    Adarsh Chemicals & Fertilizers Ltd., Udhna, Surat,

Gujarat and Dr.Prakash D.Patel, Director of the said Company, complainant  Nos. 1 & 2,

respectively,  filed  a claim for Rs.166.07 lakhs, as per the Surveyors  report, along with

interest @ 18% p.a. They have also claimed consequential  losses,  including  the loss

of  business to  the complainants, in the sum of  Rs.60.00 lakhs  besides special

damages.  The complainants obtained insurance policy from the United India Insurance

Co.Ltd., the  Oppoiste Party,  in  the sum of RS.22,22,25,000/-.   A fire  occurred  on

16.04.1995,  in the reactor  of the

complainants’  Maleic  Anhydride  Plant,  which  gutted  the  plant  and machinery situated in

Surat, Gujarat, leading to a major fire loss. The OP was informed  telephonically  as well as

vide letter dated 26.04.1995. 

 

4.      In  order  to  produce  Malelic Anhydride, a  mixture of Benzene and Air,  has to be

reacted in a shell and tube reactor,  in the presence of vandadim pentoxide catalyst.  The

temperature is controlled through cooling, by circulation on the shell side of fused

salt  consisting of potassium nitrate, sodium nitrite and sodium nitrate.  The technology for

producing Maleic  Anhydride  was  licenced from Scientific Design Company Inc., USA.

 

5.      The  plant   was  shut  down  at  about  8.14  hours on 16.04.1995 due to the failure

of  Gujarat  Electricity  Board Grid  Power Supply on account of tripping of  three

feeders.  The  power could not be fully resotred until after 7.00PM.  After the re-starting of

the reactor, temperature reached high levels  and crossed  the auto-ignition

temperature  for  the gas mixture  which  resulted  in fire. Due  to fire, the  entire batch

of  catalyst  was damaged  irreversible  and non-selectively along with the springs, besides

gas mixture and  thermocouples. The excessively high  temperature  generated  by fire also

brought about change in the microstructures, reactor,  tube  sheets. The  cause of  fire  was

auto-ignition of the gas mixture in the reactor due to rise in temperature caused by

continued  reaction  and  the  lack of salt circulation, which  otherwise  could have aided in

the removal of heat. 

 

6.      The facts of the fire  stands confirmed vide Panchanama,  dated 29.04.1995, the report

dated 24.07.1996 of the Loss Prevention Association  of   India Ltd.,

Assessment  made  by  Technical  Collaborator, Scientific  Design  Company Inc., USA,

vide  their letters dated 23.05.1995, 19.09.1995, 31.07.1996 and 23.09.1996,

which  confirmed  the  temperatures  at  which  fire  could occur  and catalyst would sinter,

the comments received  from the Indian Institute of Petroleum, Dehradun, Analysis

reports  received  from the Gujarat Industrial Research & Development Agency, Baroda, a

Government of Gujarat Organisation, Analysis   report  dated 17.06.1995  of  Electrical

Research & Development   Association, Vadodara.   The Metallographic report, dated  June,

1995 of  Larsen & Toubro  Ltd, Mumbai,  confirmed

that  the  tubesheet  of  the  reactor  was  affected.  The data  sheets of  the  Loss Prevention

Association of  India Ltd.  and the technical work on  Maleic Anhydride by B.C.Trivedi and

E.M.Culbertson,  complainant’s  Technology Development Centre at Pune, Joint Survey

Report, dated 09.12.1996, confirmed  the  auto-ignition temperatures.

 

7.      The OP refused  to accept the survey report.  Thereafter,

negotiations  took  place  between  the

parties.  The  OP  Company  vide  its  letter  dated 03.11.1997,  contended that it will re-

examine the matter.  Vide their letter  dated  05.02.1998,  the OP informed the

complainant  that,  although,  the  matter had  been  re-examined,

yet,  they  had  concluded  that  the loss  did not  fall  within  the ambit of  the

policy.  OP  repudiated the claim, vide its  repudiation letter,  dated 05.02.1998.  The

main  plea  taken by the OP was  that  no  fire occurred in the  premises, in

dispute.  Ultimately,  this  complaint  was  filed  with the prayers, detailed above.

 

8.      In the written statement, the OP has placed reliance on the repudiation letter dated

29.08.1997.  The claim of the complainant was repudiated on the following  grounds,  as  per

repudiation letter :-

“1.  At 8.00AM, power  failure stopped the reactor from working and the power was restored at 7.00PM, i.e., after 11 hours.   The reactor was started  without warming up the catalyst bed. Reportedly, this was overlooked.

2.  While feeding Benzene at 8.00PM, salt circulation pump was not started.  This was also overlooked.

3. The reactor did not start and the reactor was shut down at 9.20PM.   In this  duration of 75 minutes the temperature reading of the Bottom of reactor alone was observed.  Temperature reading of the top of the reactor was not monitored.

4. Salt outlet temperature was not monitored.  Salt circulation pump was not started. 

5. It is claimed that temperature of salt outlet was 476 C (against normal temperature of 380 C).  The gas outlet temperature is claimed to be at 1200 C.  Besides only bottom of reactor temperature was observed and  top of  reactor  temperature was  not monitored.  One fails to  understand as to  how  only one out of the 3 temperatures was continued to be monitored by the operator for  70 mints.  The control

panel of the reactor will normally contain all these reacorders  together. The operator can  look at them in a single  glance, in which case it is curious to note how he could look fixedly at one guage without allowing his eyes to wander to rest of the temperatures for a long period of 70 minutes.

6. The report of I.I.P. is of a  general nature only.  Insured did not refer the exact parameters and sequence to IIP to come out with their views.  In fact, the date on the catalyst was not supplied to IIP.

7.  Considering the report of Alpha and the stimulation exercise of the insured the following are observed.

           a) Heat balance exercise not carried out

b) The    high  temperature  readings observed simulation study are not agreed by Alpha.

c) Dynamic simulation study of insured is not verified from any unbiased source.

d) The temperature at which sintering of the catalyst occurs is disputed by Alpha.

           e) Alpha observes that  fire, if at all, cannot be prolonged for 75 minutes.

f) The reactor has high gas velocity.  So the high temperature of the salt solution indicates only runaway reaction and not a fire.

A careful consideration of all the above points, reveal that :-

a.  There is no damage to any part of reactor except  catalyst.

b.  No  fire  came  out  of  shell/ tube sheet   joints

c.  No show of  open  flame or  glow  was  observed.

          d.  No fire fighting took place.

e.  No external accidental spark or any other cause is established for the origin of the alleged fire.

In view of the above, we regret to inform that the claim is to be treated as “No Claim” since the alleged occurance did not get established”.

 

9.      Other defences set up in the written statement are these.  Complicated and

disputed  facts are involved in this case.   The case should  be  decided by the  Apex Court

as  per  law laid down in  Syncho Industries Vs. State Bank of Bikaner, (2002) 2 SCC

1.  The  complaint  is barred by time.  There  is no deficiency  on  the  part

of  the  OP.  All  the allegations are incorrect.

 

 

10.    We have heard  the  counsel  for  the parties.  The learned counsel for  the

Insurance  Co., OP, vehemently   argued  that  there is no deficiency  on the part  of  the

OP.  The above  said  loss  occurred  due   to negligence on the part  of  the

complainants.  They did  not  take  the  action in time.  There was no fire at all.  The report

submitted by the Surveyor is not  correct.  He  admitted  that  no Second

Surveyor  was  appointed.  Only  one Investigator  inspected  the spot and another one

was  assigned  the work of assessing the loss, if any.  It was argued that the OP

cannot  be  held  liable  for the mistake committed by the complaiant itself. 

 

 

11.    His argument  is  a  strawman intended to  divert  us  from  real  issue.  His plea is

typically gauche.   Attention of  this Commission  was  invited  towards the report  submitted

by Alpha  Project  Services Pvt. Ltd., Baroda,  who  were  employed  by

United  India  Insurance Co. Ltd., through  Surveyors  Rakesh Narula & Co., to investigate

the  above said incident on 16.04.1995.  The relevant extracts  of  its report rather go contrary

to the repudiation report and support it to some extent.  It was mentioned :-

“4.     Incident     Description :-

………. After  introduction of  the feed, it was observedthat the temperature  in the bottom section of the reactor was dropping  instead of  going up and there was no sign of reaction being initiated.   Temperature data in the top section of the  reactor  could only be seen on the DCS screen and they were  not stored.  The gas temperature at the reactor  outlet had jumped from 228 to above 480* C (average outlet being 477*C). Operators  may  not  have seen the temperature rise in the top section as well as at the outlet and  therefore  the  salt circulation pump was  not  turned on.  As a result, the salt  outlet temperature also had shot up to 480*C.  This temperature probably was  also overlooked  by the operators.  The plant  was  then taken  under  shut-down as  the operators  felt that reaction was not commencing. 

6.2     Reaction Initiation   :-

……. Based on the  information provided by ADARSH, the reaction  can initiate  when  the bed  temperature  is about 300-325*C. Since the bed in the top section was well  above  the reaction  initiation temperature, the reaction had started there”.

 

12.    Ultimately,  he came  to the  following  conclusions in his 19-page long report :-

“6.7     Combustion/Fire: -

… Since  the gas mixture was ignitable,  occurrence

of a small fire cannot  be theoretically  denied in the last stage of the operator..

7.     Conclusions : -

2. Based on the reactor gas inlet temperature, gas outlet temperature and salt  temperature, fire could not have occurred due to static charge.

4. The gas  temperature was  477*C at the reactor outlet.  Heat transfer area available in the top head is too  small to heat the salt solution to 480*C.  Thus, high gas  temperature must have occurred in the tubes.

5.  Since  salt  circulation was not turned  on  and the reaction was started in the top section, catalyst  temperature  jumped to about 400*C in less than  fifteen  minutes.  Once  the temperature  of catalyst was 400*C,  the reaction rate would have been very high resulting into further temperature rise.  Thus the catalyst bed in the top had experienced runaway temperature condition  with  peak temperature of  550-600*C”

6.  ……. The heat balance indicates that only 20% feed benzene  would have burnt after reaching the auto-ignition temperature had the fire  ocurred.

7. Due to high gas velocity in the tubes, fire could have

occurred only     at     the outlet of     the tubes.     Thus, heat

transfer to salt could take place only through the tubesheet.     Heat transfer area through the tubesheet was too smalll     to heat     the salt solution to 490*C.     Thus the high salt temperature indicate that high temperature have reached     in the tubes because of run- away   temperature     conditions and not because of long continuous fire in the dome”.

 

13.    The  final   survey  report   dated  09.12.1996,  prepared   by M/s.P.C.Gandhi &

Associates & M/s. Rakesh Narula & Co., running  into  40 pages, reveals the following

facts :-

“10.12.21  In view of all above facts, follwing facts can be summarised.

a)  Auto ignition temperature  of the mixture was 450 degree C to 475 degree C and was much lower than sintering temperature of catalyst which was above  525 degree C.

b) The gas mixture was always under ignitible condition.

c) The physical  measurements of temperatures and mettallurgical analysis of L & T, concludes that temperature of gases must have gone above 700 degree C.  Insured’s dynamic analysis indicates localised gas temperatures to be as high as 1243 degree C, at about 2.1 m bed height inside the tubes just before Benzene feed was stopped.

d) Dynamic analysis carried out by Insured confirms the results more close to actual recording.  It is understood that insured had applied the same simulation module for actual operating conditions and results were found to be satisfactory.

10.12.22     Considering above discussions, we are of the opinion that damage to the catalyst by all probability  was due to rise in temperature following fire as gases will ignite at 450 degree C to 475 degree C before temperature would increase further.

Further, initiation of fire would quickly raise temperature of  the  adjacent catalyst bed which in this case would  be  the layers just below, and as soon as temperature of the bed reaches above 450 degree C, gases will ignite at that level.  In this manner, the flame travelled down from 3.1m to 1.9m by the time Benzene feed was stopped. 

Therefore, damage     to the catalyst can be said to have been caused     by     an insured peril, i.e. Fire”.

[Emphasis supplied]

 

 

14.    The  Surveyors  came  to  the  conclusion that  the  net   payable  amount  is

Rs.1,66,06,993/-.  The  Joint Surevyors’ Report also opined :-

           “15.0       Consequential Loss :-

15.1 Insured  have not yet  submitted their claim  in respect  of  the consequential loss.  Estimated loss is visualised at Rs.50 to 60 lacs”.

 

15.  It  must  be  borne  in mind that the claim  does not include the consequential loss.   It is not

to be granted by mere asking of the Surveyors.   We are of the considered view that there is no

reason to discard  the  report of   the  Surveyor.   No  cogent and plausible reason was given by

the OP.   In  D.N.Badoni  Vs. Oriental  Insurance Co. Ltd, 1 (2012) CPJ 272 (NC), the Bench

headed  by his Lordship, Mr. Justice Ashok Bhan, was pleased to hold :-

“It is well settled law that a Surveyor’s report has significant evidentiary  value  unless  it is

proved  otherwise,  which  petitioner has failed to do so in the instant case”.

 

16.    In United India Insurance Co. Ltd., & Ors.  Vs. Roshan Lal Oil Mills  Ltd. & Ors., (2000)

10 SCC 19,  the Hon’ble  Apex court  was pleased to hold :-

“7. The  appellant  had appointed joint surveyors in terms of Section 64-UM(2) of the Insurance Act, 1938.  Their  report  has  been placed on  the record in which a detailed account  of the factors on the basis of which the joint surveyors had  come  to the conclusion  that  there  was no loss or damage caused on account of fire, was given and it was on this basis that the claim  was not found  entertainable.  This is an important document which was  placed before the Commission, but the Commission, curiously, has not considered the report.  Since the claim of the respondent was repudiated by the appellant on the basis of  the   joint  survey report, the Commission was not justified in awarding the insurance amount  to the respondent without adverting itself to the contents of the joint survey report, specially  the  facts  enumerated therein.  In our opinion, non-consideration of this important document has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission.  The case has, therefore, to be sent back to the Commission, for  a  fresh hearing”.

 

17.    In  New India Assurance Co. Ltd., Vs. Protection Manufacturers Pvt. Ltd., (2010) 7 SCC

386,  it was held that in the absence of any material  to support  investigator’s  report, National

Commission rightly held  that  fire  was   accidental  and   that  Investigator’s attempt to attribute

the  same  to  arson was motivated and intended to benefit insurer.

 

18.    Counsel for the complainant has also cited few authorities in his favour.  In Harris Vs.

Poland, Lloyd’s List Law Reports, Vol.69-35, March, 12, 1941,it was held  :-

“The object  of  the contract is to indemnify the assured against accidental loss by fire, and so long as the property is accidentally burnt, the precise nature of  the accident seems to be immaterial.  It may be therefore concluded  that  the loss in both cases  falls equally,  within the contract”.

 

19.   In Sri Venkateswara  Syndicate Vs. Oriental Insurance Co.Ltd. & Anr., (2009) 8 SCC 507,

it was held that appointing surveyors one after another so as to get a  tailor-made

report  to  the  satisfaction of the insurer is impermissible. 

 

20.   In  New India  Assurance Co.Ltd., Vs. Zuari Industries Ltd. & Ors., (2009) 9 SCC

70,  it  was  held  that the duration of fire is not relevant as long as there is fire, which caused

the damage, claim is maintainable even  if  the fire is  for a fraction of a second.

 

21.   Consequently, and  according to the Surveyor’s  report, we allow the complaint

and  hereby  direct  the  Insurance  Company, OP, to pay a sum of Rs.1,66,09,493/-

with  interest   @ 9% p.a.  from  the  date  of  filing of  this complaint, i.e. 01.02.1999,

which  be  paid  within 60 days,  otherwise, it will carry interest @ 9% p.a., till the date of

realisation. Costs in the sum of Rs.25,000/-  be  also  paid  by  the  opposite party to the

complainant, within 60 days,  failing which, it will carry interest @ 9% p.a, till realisation.

..…………………..………J

     (J.M. MALIK)

      PRESIDING MEMBER

                                                                ..……………….……………

                                                        (DR.S.M. KANTIKAR)

                                                                            MEMBER

 dd/14

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION No. 3292 of 2012

(From the order dated 15.02.2012 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in Appeal no. FA no. 225 of 2010)

 

The Oriental Insurance Company Ltd. Represented by its Divisional Manager, Innespeta Rajahmundry Through its Chief Manager Head Office, New Delhi

Petitioner

  Versus

1.  Bikkina Lakhsmi Kantham Wife of B N L N Narayana Rao H NO. 80-28 – 2, A V Appararao Rao Thotaramulunagar, Opp. Bible Place Rajahmundry Andhra Pradesh

2.  Dr Smt Yarlagadd Uttamalakshmi M S Wife of Y Jaya Prasad, Sreeram Nursing Home Gowthami Grandhalaya Street Rajahmundry Andhra Pradesh

Respondents

 BEFORE:

          HON’BLE MR JUSTICE V B GUPTA             PRESIDING MEMBER

          HON’BLE MRS REKHA GUPTA                                                 MEMBER

 

For the Petitioner                      Ms Savita Singh, Advocate with

                                                Mr Arvind Gupta, Advocate

 

For the Respondent                  Mr Maibam N Singh, Advocate

 

Pronounced on     6 th   September     2013

ORDER 

REKHA GUPTA

RP no. 3292 of 2012 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the final judgment and order dated 15.02.2012 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (‘the State Commission’) in First Appeal no. 225 of 2010. The brief facts of the case as per the respondent no. 1/complainant are that the respondent/complainant is a resident of Rajahmundry and she approached respondent no. 2/ opposite party no. 1 who is running a nursing home under the name and style of “Sreeram Nursing Home’. On 20.01.1998,  as an outpatient for treatment of back pain and bleeding at the time of monthly periods due to uterus trouble.

          The respondent no. 2/ OP no. 1 after verification of the annexure B & C reports, advised the respondent to undergo Hysterectomy operation.  Respondent no. 2/ OP 1 conducted the

operation on 07.02.1998 and discharged the respondent on 14.02.1998.  In spite of the medicines, used as prescribed by the respondent no. 2, the respondent no. 1 has been suffering with over sweating, folding of the skin, getting frequent fever and the entire body suffering with soothing pains.

          The respondent informed the respondent no. 2 on 22.03.1998 about the troubles suffered by her subsequent to the operation and after discharge from the hospital, such as over sweating, folding of skin (Wrinkles), shooting pains in the entire body and frequent fever etc. Thereupon the respondent no. 2 informed the respondent that these side effects may be caused due to the removal of ovaries as the respondent no. 2 removed the ovaries of the respondent at the time of operation, and the problems will be cured, if medicines are used for a period of six months.

          The respondent then lost confidence on the treatment administered by the respondent no.2 and approached another Gynaecologist on 26.03.1999. The said Gynaecologist informed the respondent no. 1 that side effects may occur due to the removal of ovaries and in the case of the respondent, there was reason for removal of ovaries of the respondent as per the scanning report.

          The respondent no. 1 is a house wife with two children aged about 15 and 13 years to look after. Her husband is working as an employee (i.e., LDC) in the State Government and the entire family is dependent upon the monthly salary of her husband. Soon after the discharge from the respondent no.2’s hospital, the she became handicapped and disabled person due to over sweating, frequent fever, shooting body pains, folding of skin and other problems. She has become dependant on her husband and her children for every day to day needs.

          Respondent no. 1 has claimed Rs.3.00 lakh as compensation, general damages for the loss or injury and continuous suffering due to the negligence of respondent no. 2 and further an award of Rs.10,000/- as cost.

          In their written reply, the petitioner/ opposite party no. 2 and respondent no. 2/ OP 1 have stated that it is an admitted fact the respondent consulted the respondent no. 2 on 20.01.1998 as an outpatient. During that visit, the respondent no. 1 stated that she was suffering from pain in abdomen, backache, excessive menstrual bleeding and bysmenorrhoca, since a year prior to the consultation. The respondent no. 1 stated that she is the mother of two children. Respondent no. 2 conducted clinical examination and found the general condition good, except that the respondent was nervous and apprehensive. Respondent no. 2 after systematic clinical examination found tenderness in the lower abdomen. The internal examination revealed enlargement of uterus, which was found to be firm and tender and both the ovaries were tender. After such clinical and internal examination, the respondent no. 2 put the respondent on differential diagnosis of chronic pelvic inflammatory disease or adenomyosis of uterus or endometriosis of pelvic organ. The respondent no. 2 advised the respondent to undergo ultrasonic test, blood and urine examinations. After prescribing antibiotics, the respondent no. 1 was advised to come for check-up after fifteen days. Thus, after systematic clinical and internal examination only the respondent no. 2 prescribed medicines. Respondent no. 2 took into consideration the fact that the respondent no. 1 is the mother of two children that she was suffering from bleeding and pain, that there was no relief in spite of medical treatment and advised the surgical treatment of removal of uterus and exploration of pelvic organs. Respondent no. 2 explained these facts to the respondent and her husband in detail. She also explained to them the merits and demerits of the surgical intervention. A study of Exhibit A 3 (trans-vaginal and transabdominal of pelvis) established presence of fibroid, indicating tumour on the uterus. Respondent no. 2 on the surgical table, did exploration of the uterus, tubes, ovaries, bowels and intestines of the respondent. After such exploration, the respondent no. 2 found that the uterus was enlarged and fixed because of adhesions and both the ovaries were adherent very much posterior to uterus. This was due to endometriosis. The respondent found that the ovaries were very much inflamed and haemorrhagic, i.e., blood stained. The respondent no. 2 on observing

this condition of the respondent no. 1 after exploration of the organs on the surgical table diagnosed that the respondent no. 1 is suffering from adeaomyosis of uterus and pelvic endometriosis with adhesions.

          The respondent no. 2 thus found that the ovaries were very much adherent and in an inflamed condition and therefore found it essential to remove the ovaries. The respondent no. 2 after such diagnosis informed the respondent no. 1 about the condition of the ovaries and the necessity of removing them while removing the uterus. The respondent no. 2 also informed PW2 who was present at the time of the surgery about the necessity of removing the ovaries. The respondent no. 1 who was conscious on the surgical table informed the respondent no.2 that she got full confidence in her and gave consent for removal of the ovaries. PW2 who was also informed of the necessity to remove the ovaries also gave his consent. The respondent no. 2 thus in the interest of the respondent and in order to provide her relief, removed her ovaries. During the course of surgery, the respondent no.2 also removed the appendix of the respondent. All the removed organs were shown to PW2 and the respondent no. 2 explained about the observations found by her on the organs of the respondent and the necessity of removing the ovaries and appendix to PW2.

          The District Consumer Disputes Redressal Forum II, Rajahmundry EG District (‘the District Forum’) “allowed the complaint and directed the petitioner/ OP 2 to pay a sum of Rs.3.00 lakh as compensation and general damages to the respondent/ Complainant. A further amount of Rs.10,000/- to be paid as costs”.

          Aggrieved by the order of the District Forum, the petitioner filed a First Appeal no. 225 of 2010 before the State Commission and respondent no. 2 filed a first appeal no. 229 of 2010 before the State Commission. The State Commission vide its order dated 15.02.2012 dismissed both the appeals.

          Hence, this present revision petition.

          We have heard the learned counsels for the parties and have also gone through the records of the case. Along with the present revision petition, the petitioner has filed an application for condonation of delay of 89 days. The reasons given in the application for condonation of delay are as follows:

         The impugned order dated 15.02.2012 was dispatched on 06.03.2012 and then the certified copy was made available to the petitioner by the counsel in the last week of March.

         The matter was taken up at the divisional office of the insurance company at Rajahmundry and deliberated upon till 1st week of May. Thereafter the matter was sent to the counsel Syed Moinuddin, Advocate and Notary, Vishakapatnam who gave his opinion to file the revision petition on 4th June 2012. Thereafter a letter was forwarded by the Vishakhapatnam Branch Manager of the petitioner to Delhi Branch Manager of the petitioner by last week of June 2012.

         Further, Delhi office of the petitioner sought for the second opinion and thereby forwarded the file to Advocate M J Paul and Co. on 1st week of July 2012.

         It is submitted that the petitioner got an opinion from Advocate M J Paul and Co. as to whether a revision petition is to be filed in National Commission against the order dated 15.02.2012 passed by the State Commission in FA nos. 225 and 229 of 2010. Advocate M J Paul and Co. vide letter dated 23.07.2012 opined that the petitioner should file the revision petition stating the merits of the case. Thereafter, it was considered appropriate to file a revision petition before the Hon’ble National Commission and accordingly the files were entrusted to the present counsel for preparing the petition.

         All these efforts took some time before a decision was taken at the highest level of the insurance company. The matter was yet again sent back to Advocate M J Paul and Co., in the first week of August to file the revision petition.

         The counsel for the insurance company prepared the draft petition and sent it over to the insurance company for settlement and signature in the second week of August. There were certain changes recommended by the insurance company and the draft was returned back to the counsel for incorporating certain changes in the petition in the third week of August. Therefore, the final draft was sent after necessary modifications for signatures of the competent authority of the insurance company. The petition was thereafter returned back to the counsel for filing a revision petition before the National Commission only in the last week of August.

The petitioner is supposed to explain the day-to-day delay, but the needful has not been

done. The petitioner has failed to provide ‘sufficient case’ for the delay of 89 days. This view is

further supported by the following authorities.

In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”. 

In R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, it has been observed that “We hold that in each and every case the Court has to examine whether delay in filing the Special Appeal Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that “It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right.  The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by Section 5.  If ‘sufficient cause’ is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone.  If ‘sufficient cause’ is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bonafides may fall for consideration; but the scope of the inquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors.

AIR 1994 Punjab and Haryana 45, it has been laid down that;

 

          “There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona

fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

 

In Sow Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it was held that “the expression ‘sufficient cause’ cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act.  There must be some cause which can be termed as a sufficient one for the purpose of delay condonation.  I do not find any such ‘sufficient cause’ stated in the application and no such interference in the impugned order is called for”.

In Balwant Singh Vs.  Jagdish Singh & Ors., (Civil Appeal no. 1166 of

2006), decided by the Apex Court on 08.07.2010 it was held:                    

“The party should show that besides acting bonafide, it had taken all possible steps

within its power and control and had approached the Court without any unnecessary

delay. The test is whether or not a cause is sufficient to see whether it could have been

avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon,

P. Ramanatha Aiyar, 3rd Edition, 2005]”.

 

          The present case is fully covered under the case laws cited above Supra.

Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 89 days in

filing the present revision petition. The application for condonation of delay is without any merit

as well as having no legal basis and is not maintainable. Consequently, the present revision

petition being time barred by limitation and is dismissed with cost of Rs.5,000/-. (Rupees five

thousand only).

           Petitioner is directed to deposit the cost by way of demand draft in the name of

‘Consumer Legal Aid Account of this Commission’ within four weeks from today. In case the

petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay

interest @ 9% per annum till realisation.

          List on 25th October 2013 for compliance.

Sd/-

..………………………………

[ V B Gupta, J.]

 

Sd/-

………………………………..

[Rekha Gupta]

Satish

 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

                                         REVISION PETITION NO. 3563 OF 2012                        

(From order dated 30.07.2012 in First Appeal No. 1395 of 2010 of the  State Consumer Disputes Redressal Commission, Circuit Bench No.3, Jaipur, Rajasthan)  Smt. Pinki Devi Sharma W/O Sh. Mahesh Sharma R/O Ward No. 11,Udaypurwati District Jhunjhunnu, Rajasthan

                                            … Petitioner 

Versus1.   Sahara India Sahara India Bhawan, 1, Kapurthala Complex, Aliganj, Lucknow Through its Managing Director    2.   M/s National Insurance Company Limited D.O.-4, Jeevan Bhawan Phase-1, 43, Hazratganj,

Lucknow (UP)                                    … Respondents   

                        BEFORE: 

HON’BLE  MR.JUSTICE J. M. MALIK, PRESIDING MEMBER          HON’BLE  DR. S. M. KANTIKAR, MEMBER For the Petitioner                            : Mr. J.M. Bari , Advocate                                                  With Ms. Meenakshi Bari, Advocate For the Respondent No.1    : Mr. Deependra Narain Singh, Advocate For the Respondent No. 2   : Mr. RCS Bhadoria, Advocate

  for Ms. Sonia Sharma         , Advocate. 

 

Pronounced On     9 th   September , 2013

 ORDER

PER DR. S.M. KANTIKAR

1.    That the present petition has been filed for setting aside the order dated 30.07.2012 of the

State Consumer Disputes Redressal Commission, (herein after, ‘State Commission’) Circuit

Bench No. 3 Rajasthan which held that the Heart Valve Operation is not included in the

Coronary Artery Surgery and for confirming the order dated 10.06.2010 passed by the

District Consumer Redressal Forum (Jhunjhunu) Rajasthan which held that the Heart Valve

Operation is included in the Coronary Artery Surgery.

2.    Facts in brief:

That the Complainant had deposited Rs.22,538/- in a term account under the Sahara Silver

Labh Yojna Scheme of Respondents/OP under which   depositor was covered from any

critical illness expenses on treatment. For this petitioner took a policy cover from National

Insurance Company. National Insurance Company had issued a Special Contingency Policy

No. 451500/9500024/2003, through which employees, agents, associates, journalists,

Sanchar Sathis of this Company were covered under Section 1 and depositors / investors

were covered under Section 2 details of which is mentioned in Annexure-2. Details of critical

illness are mentioned in Annexure-3. During the subsistence of her account there was Heart

Valve Operation of the Complainant in Mumbai Hospital, Mumbai for which about

Rs.48,000/- were spent. Her claim for reimbursement of expenses was rejected by OP on the

ground that Heart Valve Operation is not included in the list of critical illness of insurance

company.  Therefore, alleging the deficiency in service   Complainant filed a complaint

before District Forum.

3.    The District Forum after considering the facts allowed the complaint by concluding that the

Complainant  had undergone surgery for mitral valve replacement which is a coronary

(artery) surgery and therefore, her medical condition was very much covered under the

purview of critical illness declared in the said Scheme. The District Forum directed  the OP

to pay Rs.48224.50 with interest @ 9% p.a. from 18/10/2004 and cost of Rs.3000/-

 

4.    The OP preferred an appeal No. 1395/2010 before State Commission which was allowed

vide its order dated 30.07.2012 holding that in the list of ‘critical illness’ Heart Valve

Operation is not included. However, it was admitted the ‘Coronary Artery Surgery’ was

included in the said list. It was also observed that Angioplasty and/or any other intra-arterial

procedures are excluded from this definition. It has been further observed by the Ld. State

Commission in the impugned order as under:

i)             Heart Valve Operation comes under that category of critical illness in the list

issued by Life Insurance Company.

ii)            In the list as per Annexure-3 issued by National Insurance Company,

Heart  Valve Operation is not included. It only includes Coronary Artery Surgery.

Angioplasty and/or any other intra-arterial procedures are excluded from this

definition.

iii)          Such amount is not payable for any other heard disease except Coronary Artery

Surgery.”

 

5.    Aggrieved by the order of State Commission the Petitioner/complainant filed this revision. 

 

6.    We have heard the counsels of the both parties who argued vehemently. The petitioner

brought our attention to the decisions on similar  issue have been fully settled by

this Commission in the following cases:

i.             R.P. No. 1588/2010 titled LIC of India Vs. Dajadu Sitaram Mahale decided on

22.09.2011.

ii.            R.P. No. 2835/2007 titled LIC of India & Ors. Vs. Pathivada Mrutyunjaya Rao

decided on 21.10.2011.

iii.           R.P. No. 4259 of 2007 titled The Branch Manager, Sahara India & Anr. Vs. Smt.

Rekha Dey decided on 04.04.2012.

 

7.    We  have  perused  the  evidence  on  file,  the  records like policy, terms and conditions.

Therefore, we are of considered view that Mitral Valve Operation for the replacement or for

repair of the same definitely comes under the broader category of critical illness and specific

category of Coronary Artery Surgery. The present case similar facts and is made against the

same party in Rekha Day’s case; it has been categorically held that the surgery for mitral

valve replacement is a critical illness under the provisions of the scheme. 

 

8.      That according to Insurance Company under Sl. No. 10 of ‘Critical Illness Rider’

repair  or  transplant of Heart Valve Operation is accepted to be critical illness.

 

9.    As per the Special Contingency  Policy  Schedule  Annexure -2 ,   in  present  case the

petitioner is covered under Section II- For Registered Depo /Investors. Advance  Booking

holders for Housing and various services of Sahara India. The petitioner deposited

Rs.22538/- ; as per Section II mentioned above petitioner’s critical illness cover is up to

Rs.100000/- . 

 

10. It  is  also  clear  from the Annexure 1-the copy of Insurance Policy issued by OP-

2 ;  under  caption  Compensation  for  Coronary Artery Surgery which  states :  as

“  The compensation  for coronary Artery Surgery shall be limited to 20% of lint of

indemnity mentioned in schedule”.

 

11. Considering the above condition as per Annexure 1, the complainant is entitled for 20% of

Rs.100000/- i.e. Rs.20000/- only.  But, the Consumer Protection  Act  1986 (in short CP

Act) is a social act, therefore very stringent  approach  towards  Complainant’s  prayer  will

defeat the  purpose of CP Act. At this juncture we cannot ignore the entire circumstances

and sufferings of Complainant in this case.

 

12. Therefore, we set aside the order of State Commission and modify the order of District

Forum as; 

The Revision Petition is partly allowed. The OPs are directed to pay Rs.20,000/- along with

interest @ 9% p.a. from 18/10/2004. We impose punitive cost of Rs.20,000/- (Rs.10,000/- for

each OP) should be paid to the Complainant. This entire order should be complied within 45

days otherwise it will carry further interest of 9% p.a. till realization.

        ..…………………..………

           (J.M. MALIK J.)      PRESIDING MEMBER

                                                                                   ……………….……………                                                                                (Dr. S.M. KANTIKAR)   MEMBER Jr/3 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.   1210 OF 2011 (From the order dated 16.11.2010 in First Appeal No. 399/2008of Andhra Pradesh State Consumer Disputes Redressal Commission) 1.     Smt. Yashoda Jain w/o Late Ramesh Kumar Jain2.     Rasmi Jain d/o Late Ramesh Kumar Jain 3.     Rusub Jain s/o Late Ramesh Kumar Jain 4.     Raj Jain,s/o Late Ramesh Kumar Jain All residents of D. No. 9-15-15, Khazi Street, Rajamundry, Andhra Pradesh

                                       ...  Petitioner(s) Versus Life Insurance Corporation of India through its Divisional Manager,Morampudi Rajahmundry, East Godavari District Andhra Pradesh

                                       … Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER   APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s)   Mr. D. Bharat Kumar, Advocate

Mr. Sayooj Mohandas M. AdvocateFor the Respondent(s)   Mr. U.C. Mittal, Advocate

 

PRONOUNCED   ON :   09 th   SEPT. 2013 O R D E R PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 against the impugned order dated 16.11.2010, passed by the Andhra Pradesh State

Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.

399/2008, “Life Insurance Corporation of India versus Smt. Yashoda Jain & Ors.,” vide which,

while allowing appeal of the respondent, Life Insurance Corporation of India (hereinafter

referred to as ‘LIC’), the order dated 07.01.2008 passed by the District Consumer Disputes

Redressal Forum, East Godavari District in complaint no. 12/2007, allowing the said complaint,

was modified and the LIC was directed to make payment, in question, treating it as a case, where

the nominee had not given any option.  

2.     Brief facts of the case are that late Ramesh Kumar Jain took Jeevan Suraksha Endowment

Funding Policy with guaranteed addition for an assured sum of Rs.2 lakh.  The complainant no. 1

is the wife of Ramesh Kumar Jain and complainant nos. 2 to 4 are his children. Ramesh Kumar

Jain died on 08.08.2005.  When the claim form was given to the LIC, the LIC took the stand that

the complainants were not entitled to get the whole claim in lump-sum, as demanded by

them.  The complainants filed the consumer complaint in question before the District Forum

demanding payment of Rs.2 lakh as sum assured, along with a bonus of Rs.75,000/- till filing of

the complaint and a further bonus of Rs.15,000/- along with Rs.25,000/- as compensation and

Rs.10,000/- as costs of litigation.  In this way, they demanded a total sum of Rs.3.25 lakh from

the OP.  The District Forum vide their order dated 07.01.2008, allowed the complaint and

directed the OP to pay a sum of Rs.2 lakh along with Rs.75,000/- as guaranteed addition with

interest @12% p.a. from 1.1.2006 till the date of payment and Rs.5,000/- by way of damages and

Rs.2,000/- as costs of litigation.  The District Forum made the observations that the terms and

conditions printed on the policy bond could not be read or understood, as they were in

microscopic printing.  An appeal against this order was filed by the OP before the State

Commission which was accepted with the State Commission observing that complainants should

give the necessary option as required under the terms and conditions of the policy within one

month from the date of receipt of their order and on failure to give option, the LIC was directed

to make payment, treating it as a case where the nominee had not given any option.  It is against

this order that the present petition has been made. 

3.     At the time of hearing before us, the learned counsel for the petitioner stated that there was

a minor delay of 31 days in filing the saidpetition, because the copy of the impugned order dated

16.11.2010 was received by them on 17.1.2011.  It took some time for petitioner No. 1 to consult

the local Advocate, as she has to manage the house-hold affairs as well.  The other complainants

are too young to manage this kind of affair.  It also required some time to arrange the basic funds

for presenting the present petition. 

4.     In view of the position explained by the learned counsel for the petitioner, the delay of 31

days in filing the present petition is ordered to be condoned. 

5.     Learned counsel for the petitioner has further drawn our attention to the copy of the policy

in question, saying that the policy was in microscopic print and hence, it was not possible to read

the same to have knowledge about the terms and conditions, governing the policy. The learned

counsel referred to the observations of the District Forum in their order, in which the said forum

has observed that they could not make out even a single word about the conditions specified in

the policy, as the policy was in microscopic print and hence was not legible or

understandable.  The learned District Forum held it to be a clear case of deficiency in service on

the part of the OP, because they were guilty of not furnishing the conditions in a legible manner

and for not educating the policy-holder on such terms and conditions. 

6.     On the other hand, learned counsel for the LIC stated that although, the terms and

conditions printed on the front page of the policy were in microscopic print, but conditions and

privileges were printed on the last page of the policy which could be read without any

difficulty.  As per paragraph 12, entitled Special Conditions, options were required to be

exercised for the payment of annuity.  The learned counsel, however, admitted that these Special

Conditions were required to be applied in conjunction with the term and conditions on the main

page of the policy. 

7.     We have examined the entire material on record and given a thoughtful consideration to the

arguments advanced before us. 

8.     The State Commission have observed in the impugned order as follows:-“8.     It is an undisputed fact that deceased late Ramesh Kumar Jain had taken Jeevan Suraksha Endowment Funding Policy with guaranteed additions for sum assured of Rs.2 lakh vide Ex. A1 covering the period from 23.08.2000 to 23.09.2019.  The assured died on 8.8.2005.  No doubt the terms of the policy are in fine print.  However, it cannot be said that it is undecipherable.  Clause-6(1)(a) of the terms reads as follows: If the proposer dies before the date on which annuity vests and while the policy is in force the following benefits shall become payable. In case, the spouse named in the proposal is alive on the date of death of the proposer, then basic sum assured together with accrued guaranteed additions will be utilised to purchase annuity to the spouse and the spouse will have the option I, II & IV detailed in the special conditions.  The annuity will be payable to the spouse from the first of the month following the month of the death of the proposer and every month thereafter as per selected option.  This spouse will have an option to receive 25% of the sum assured (basic sum assured and accrued guaranteed additions, if any) in lump sum and the balance in annuity.  In case the spouse is not named in the proposal, the basic sum assured with guaranteed additions, if any, will be payable in lump sum to the nominee or legal heirs.”

 

9.     It is made out from the above terms and conditions read with para 12, “Special Conditions”

that in the present case, since the spouse was alive on the date of death of the proposer, she was

entitled to receive 25% of the sum assured (basic sum assured and accrued guaranteed additions)

in lump sum and the balance amount is to be received by her in annuity.  As per para 12 of the

special conditions, she was supposed to exercise her option to receive the balance in annuity; as

per one of the options mentioned in para 12 special conditions. The State Commission have

rightly relied upon the judgement of the Hon’ble Supreme Court in the case of “United India

Insurance Co. Ltd. versus Harchand Rai Chandan Lal” as reported in [IV (2004) CPJ 15

(NC)] saying that the policy is a contract between the two parties and both the parties are bound

by the terms of the said contract.  The State Commission also allowed the present petitioner time

of one month to exercise her option and in case, the option was not exercised, the Insurance

Company was directed to make payment, treating it as a case, where the nominee had not given

any option. 

10.   It is observed, therefore, that the order of the State Commission has been passed by making

a correct appreciation of the facts and circumstances on record.  The petitioner is not entitled to

receive the entire money in lump sum, looking at the terms and conditions of the policy, in

question.  It is held, therefore, that there is no illegality, irregularity or jurisdictional error in the

order passed by the State Commission and the same is ordered to be upheld and the present

revision petition is ordered to be dismissed.  There shall be no order as to costs.Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER  Sd/-(DR. B.C. GUPTA)MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

                                        REVISION PETITION NO. 2406 OF 2012              

(From order dated 10.02.2012 in First Appeal No. 1878 of 2008of the State Consumer Disputes Redressal Commission, U.P., Lucknow)

  Life Insurance Corporation of India H-39 1st Floor, New Asiatic BuildingConnaught Place, New Delhi-01, Through its Assistant Secretary (Legal Cell) Sh. Balihar Singh

                                    … Petitioner 

Versus 1.   Smt. Shahida Khatoon R/o Bhagirathi Colony Nayee Abadi Sultanpur     Road, Shahganj, Jaunpur (UP) 2.   Km. Fatima Shamim Under the guardianship Of her mother Smt. Shahida Khatoon R/o Bhagirathi Colony Nayee Abadi Sultanpur Road, Shahganj, Jaunpur (UP)

                                      … Respondents               BEFORE: 

HON’BLE  MR.JUSTICE J. M. MALIK, PRESIDING MEMBER          HON’BLE  DR. S. M. KANTIKAR, MEMBER 

For the Petitioners                 : Mr. U.C. Mittal, Advocate

For the Respondent              : Mr. S.D. Singh, Advocate                              

Pronounced On       September 10 , 2013 ORDER

PER DR. S.M. KANTIKAR

1.   This  Revision Petition is filed against the impugned order of U.P. State Disputes Redressal

Commission, Lucknow (in short, State Commission, U.P.) in First Appeal No. 1878/2008

against the Consumer Case No. 68/2007 of Consumer Disputes Redressal Forum, Jaunpur (in

short District Consumer Forum).

2.   Facts in Brief: The Complainant is a nominee of her husband late Mohammad Shamim Khan,

who took two LIC policies for Rs.1,00,000/- each on 28.09.2002. At the time of his death on

15.02.2005 both the policies were in operation. The Insurance claim made by the

Complainant was rejected by the OP on illegal grounds. Hence, alleged deficiency in service,

the Complainant filed a complaint before District Forum.

3.    The OPs in their counter affidavit stated that the terms and conditions of insurance policy

were violated. The husband of the Complainant obtained insurance policies by way of fraud

and by concealing the diseases which he was suffering from. Hence, the claim was rejected.

4.     The District Forum allowed the complaint partially and passed an order as :

“The dispute no. 68 of 2007 is allowed partially against the opposite parties and opposite parties are directed to pay the complainant the insured money of rupees one lakh against policy no. 282982311 and similarly rupees one lakh against policy no. 2829830001 taken by

her husband along with benefit of accident and interest @ 6% PA within two months from the date of this order”.

5.    Against the order of District Forum the OP preferred an appeal before the State Commission.

6.    The State Commission  heard counsel of both the parties and  on basis of evidence &

documents on record,  dismissed the appeal  by making observations as follows:

“We reach the conclusion that in absence of legally based evidences, it cannot be established that before taking both the insurance policies in question, the policy holder was ailing and he had knowledge of the alleged defect in kidney and disease of diabetes.  Only on the basis of imagination, rejecting the insurance claim by the Insurance Corporation is illegal.”

7.   Aggrieved by the order of the State Commission, the OP filed this revision before this

Commission.

8.    We have heard arguments of learned counsel of both sides. The counsel for Complainant

brought our attention towards the discrepancies in the Medical Certificate issued by Dr. PK

Rai, Opal Hospital Rathyatra Varanasi.

9.    The medical attendant’s certificate of LIC which was filled by Dr. Pardeep Kumar Rai.  In

para 4 of the certificate, which is in Hindi version and after it’s translation, the

heading  4.’c’ is,

“For how long the deceased was suffering from this disease”, which was answered as, “one

year”.  But  in the next  column  the same doctor wrote in the heading 4 ‘d’ that :- “DM

x10yrs. HT+ 1 yr.”     ;  this clearly indicates the deceased was suffering from Diabetes

Mellitus for past 10 years and by Hypertension for 1 year. 

Hence both the statements appear to be contradictory.

10.  We have carefully perused another document - the medical prescription on letter head of Dr.

Pradeep Kumar Rai , Opal Hospital ,Varanasi . The one of the entry

on 06/02/2004  shows  DM x 10yrs, HT(+)  and diagnosed as ‘DM,DN,CKD,CRD

with  CAD’  The same prescription shows multiple entries on date 21/2/2004,

5/3/2004,12/7/2004.

11.    But, in fact the above said deceased insured filled proposal forms for both policies in

October 2002 ; and concealed the material facts that he was suffering and under treatment

for Diabetes Mellitus for past 10 years  as per Annexure P-7 the prescription of Dr. PK Rai

Opal Hospital Rathyatra Varansi’

 

 

12.  We have relied upon several  judgments of Hon’ble Supreme Court in cases  Satwant Kaur

Sandhu Vs. New India Assurance Co. Ltd. (2009) 8 SCC 316 P.C. Chacko and anr. Vs.

Chairman, LIC of India (2008) 1 SCC 321 LIC of India Vs. Smt. Asha Goel (2001) 2 SCC

160 have discussed the term “Material Fact”  as fact which goes to the root of the contract of

insurance and has a bearing on the risk involved would be material. The term material fact is

not defined in the Act and therefore, it has been understood and explained in general terms

to mean as any fact which influence the judgment of a prudent insurer in fixing the premium

or determine whether he would like to accept the risk.

 

13. Therefore, we do not find any force in the arguments of counsel for complainant/respondent.

Both the fora below have erred in not considering the non-disclosure of material facts by the

deceased and filled the proposal form.  Accordingly, we set aside the orders passed by fora

below and allow this revision petition by dismissing the complaint. No order as to cost.            ……………….……………

              (J.M. MALIK J.)      PRESIDING MEMBER

                                                                                   ……………….……………                                                                                (Dr. S.M. KANTIKAR)   MEMBER Mss/5    

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.   93 OF 2011 (From the order dated 04.10.2010 in First Appeal No. 1202/2010of Rajasthan State Consumer Disputes Redressal Commission) National Insurance Co. Ltd. Regional Office No. 1 Jeevan Bharti124 Connaught Circus New Delhi And Also Branch Office National Insurance Co. ltd. Kanchan Sadan Khoja Gate Road, Bundi Rajasthan – 323001

                                 ...  Petitioner Versus1.   Anandi Lal s/o Narayan r/o Village Onkarpura Tehsil & District Bundi (Rajasthan) 2.   Kailashi Bai, w/o Chhitar Lal r/o Village Onkarpura Tehsil & District Bundi (Rajasthan) 3.   Durga Lal s/o Chittar Lal r/o Village Onkarpura Tehsil & District Bundi (Rajasthan) 4.   Gyarsi Bai w/o Radheyshyam r/o inside of Ganeshlal Garden Anand Vihar Nagar, Near

Railway Station Bundi, Tehsil & District Bundi (Rajasthan) 5.   Meera Bai d/o Chittar Lal r/o Village Onkarpura Tehsil & District Bundi (Rajasthan)

         … Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s)   Mr. Pradeep Gaur, AdvocateFor Respondent 1   Mr. Rajendra Kumar Sharma, Adv.For Respondent 2 to 5   Mr. Vikram Singh, Advocate

 

PRONOUNCED   ON :     11 th   SEPTEMBER     2013 O R D E R PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 against the impugned order dated 04.10.2010, passed by the Rajasthan State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 1202/2010,

“National Insurance Co. (hereinafter referred to as ‘insurance company’)

versus Anandilal & Ors.”, vide which while dismissing the appeal, order dated 07.05.2010

passed by District Consumer Disputes Redressal Forum, Bundi in consumer complaint no.

49/2009 was upheld.  

2.     Brief facts of the case are that a vehicle tractor-trolley, bearing no. RJ-08/RA-0012 was

insured with the petitioner Insurance Company in the joint name

of Anandi Lal and Chittar Lal vide policy no. 370801/47/05/9700001847 for the period from

17.03.2006 to 16.03.2007 for a sum insured of Rs.4,16,400/- on payment of premium of

Rs.5293/-.  The vehicle was allegedly stolen on the intervening night of 10.07.2006 and

11.07.2006, when it was stated to be parked outside a hotel at village Budhpura.  An FIR no.

418/2006 dated 21.07.2006 under section 379 IPC was lodged with the local Police.  The

intimation to the Insurance Company is stated to have been given on 1.02.2007.  The insurance

company repudiated the claim filed by the complainant on 26.08.2008, based on the report of the

investigator who stated that theft had not taken place.  A complaint was filed before the District

Forum.  Vide order dated 07.05.2010, the District Forum directed the insurance company to pay

the cost of tractor-trolley within a period of one month, along with Rs.1,000/- towards mental

agony and Rs.1,000/- as litigation charges.  An appeal filed by the insurance company before the

State Commission was dismissed by them vide impugned order dated 04.10.2010.  It is against

this order that the present revision petition has been made. 

3.     At the time of hearing before us, learned counsel for the insurance company stated

that as made out from the report of the investigator, there was no theft in this case and it was a

made-up story by the complainant, Anandi Lal.  He stated that the insurance policy was in the

name of two persons, Anandi Lal and Chittar Lal but the complaint in question had been made

by Anandi Lal only.  Moreover, FIR in this case was lodged 10 days after the alleged

incident.  The intimation to the insurance company was also given late by 6 to 7 months.  The

order passed by the State Commission was vague/sketchy and they had not discussed the issues

involved at all, while upholding the order of the District Forum. 

4.     In reply, the learned counsel for the respondent stated that the petitioner had already

deposited the amount awarded by the District Forum and hence, there was no justification for the

continuance of the present petition. 

5.     The impugned order passed by the State Commission reads as follows:-“Heard the counsels and perused the documents. The appellant has filed this appeal with the delay of 5 days.  In view of the grounds mentioned in the appeal and affidavit, the delay of 5 days is condoned. Keeping in view the facts and circumstances of the case, we do not find any infirmity in the order passed by the Distt. Forum.  Therefore, confirming the order passed by the Distt. Forum, Bundi in appeal No. 49/2009 dated 07.05.2010 the appeal of the appellant is dismissed. Rs.25,000/- deposited by the appellant before the Distt. Forum be included in the amount along with accrued interest to be paid to the complainant respondent.  One month is granted to the appellant to comply with the orders from today.”

 

6.     A plain reading of the above order indicates that the Rajasthan State Commission have not

given any detailed reasons for agreeing with the order passed by the District Forum.  It was the

duty of the State Commission to carry out a detailed analysis of the issues involved in the case

and give their clear findings on each issue before announcing their verdict.  The main issue to be

decided is whether the factum of theft is genuine or not.  Moreover, the facts make it clear that

the FIR was lodged with the Police after 10 days and there was a lot of delay in informing the

insurance company.  The investigator of the insurance company has stated that there was

contradiction in the statement given before the Police and during the examination at the place of

occurrence.  

7.     In view of the above facts, it is absolutely necessary that the appellate authority should

consider all the facts and circumstances in detail, analyse the same and then given their clear-cut

findings.  The order passed by the State Commission is, therefore, liable to be set aside and we

order accordingly.  This revision petition is allowed and the case is remanded back to the State

Commission for hearing the parties afresh and then take a decision.  The parties are directed to

appear before the State Commission on 4.11.2013.Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER  Sd/-(DR. B.C. GUPTA)MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO.   3255 OF 2011 With I.A./5526/2013 (For permission for addl. Documents)

 (From the order dated 31.05.2011 in Appeal No. 653/2009 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

 

K.P. Bushara W/o Muhammed Ali Thadathil House Kanayam Post, Kulappully Shornur, Palakkad Kerala

                                                          … Petitioner/Complainant                                                   Versus1. The Regional Manager, Bajaj Allianz General Insurance Co. Ltd. Door No. 11, People’s Park 3rd Floor, Government Arts College Road, Coimbatore, Tamilnadu.

2. The Manager Bajaj Allianz General Insurance Co. Ltd. III Floor, Finance Tower Kaloor, Ernakulam 682017 Kerala     

3. Customer Care Cell Bajaj Allianz General Insurance Co. Ltd. G.E. Plaza, Airport Road, XX, Pune – 411006 Maharashtra

4. Bajaj Allianz General Insurance Co. Ltd. S.M. Complex, College Road, Palakkad – 678001 Kerala

                                                 …Respondents/Opp. Parties (OP)

 BEFORE

      HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner           : Mr. K.P. Rajagopal and

Mr. S.I.A.K. Bagadur Sha, Advocates

For the Respondents      : Mr. Anil Kumar Chandel, Advocate

 

PRONOUNCED ON 12 th   September ,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER          

This revision petition has been filed by the petitioner/complainant against the order dated

31.5.2011 passed by the Kerala State Consumer DisputesRedressal Commission,

Thiruvananthapuram  (in short, ‘the State Commission’) in Appeal No. 653/2009 – The Regional

Manager, Bajaj Allianz General Ins. Co. Ltd. Vs. K.P.  Bushara by which, while allowing appeal

partly, order of District Forum allowing complaint was modified. 

2.      Brief facts of the case are that complainant/petitioner is owner of a petrol bunk which was

insured by OP/respondent for a sum of Rs.32,00,000/- for a period of one year from 2.5.2007 to

1.5.2008.  In the early morning of 19.6.2007, the retaining wall of the petrol bunk collapsed.

Intimation was immediately given to OP, but no one turned up.  Independent

surveyor Mr. Babu assessed loss of Rs.9,00,000/- after inspection of site. OP was not disbursing

the claim amount.  Alleging deficiency on the part of OP, complainant filed complaint before

District Forum.  OP/respondent contested complaint. OP admitted policy and incident of collapse

of retaining wall. It was further submitted that on the next date of incident, independent surveyor

inspected the site and submitted report on 26.7.2007.  It was further submitted that claim

submitted by the complainant was incomplete and loss to the retaining wall was not covered

under the policy; hence, claim was repudiated.  Learned District Forum after hearing both the

parties allowed complaint and directed OP to pay Rs.7,00,000/-.  OP filed appeal before learned

State Commission and learned State Commission  vide impugned order while allowing appeal

partly, modified order of District Forum and awarded Rs.1,50,000/- as compensation instead of

Rs.7,00,000/- and further  awarded cost of Rs.5,000/- against which, this revision petition has

been filed.  

3.      Heard learned Counsel for the parties finally at admission stage and perused record. 

4.      Learned Counsel for the petitioner submitted that learned District Forum rightly allowed

compensation of Rs.7,00,000/-, but learned State Commission has committed error in restricting

it only to the extent of Rs.1,50,000/- without any basis; hence, revision petition be allowed and

impugned order be set aside. On the other hand, learned Counsel for the respondent submitted

that firstly, retaining wall was not covered under the policy and secondly, amount awarded for

retaining wall is proper; hence, revision petition be dismissed. 

5.      First of all, it is to be seen whether; insurance policy covers retaining wall. Description of

property covered under the Standard Fire and Special Perils Policy runs as under:

         

Sr. No.           Block Description

1. “On Petrol/Diesel Bunk Building with Plinth and

Foundation – Rs.7,00,000/-, Stocks of Petroleum Products

– Rs. 24,50,000/-,Furnitures, Fixtures and Fittings –

Rs.50,000/-“ 

 

6.      Perusal of policy clearly reveals that it does not cover retention wall, though, learned

District Forum has opined that retaining wall is covered under the insurance policy.  Learned

State Commission held coverage of retaining wall on the basis of previous year’s policy in which

retention wall was covered under the policy. Complaint has to be decided in pursuance to

insurance policy for the period 2.5.2007 to 1.5.2008. It may be by omission that retaining wall

was not covered under the insurance policy, but when retaining wall coverage is not found under

the policy; petitioner was not entitled to get any compensation for damage to retention

wall.  Surveyor appointed by OP clearly mentioned in his surveyor report that damage to

retaining wall was not covered under the policy. Learned Counsel for the petitioner could not

place any document on record to show that retaining wall was also covered under the policy.  In

such circumstances, we are of the view that retaining wall was not covered under the policy. 

7.      As far as quantum of damage to the retaining wall is concerned, learned District Forum

placed reliance on report of assessor appointed by complainant and assessed loss to the tune of

Rs.9,00,000/-, but confined it to Rs.7,00,000/- as insurance coverage was only to the extent of

Rs.7,00,000/-.  Learned State Commission vide impugned order observed that no reliance can be

placed on the estimate by building supervisor and further observed that cost of reconstruction of

wall alone cannot be Rs.9,00,000/-, whereas entire building and other constructions have been

covered for Rs.7,00,000/- only.  Learned State Commission placed reliance on surveyor’s report

appointed by the respondent. 

8.      Learned Counsel for the petitioner submitted that no reliance can be placed on surveyor’s

report because surveyor appointed by OP has not assessed the loss as per surveyor’s report.

Surveyor has clearly mentioned in his report that he has not assessed loss as claim documents

were not submitted and damaged retaining wall was not covered under the policy, but on

inspection he estimated loss to the retaining wall around Rs.1.5 lakhs subject to improvement,

etc.  No doubt, surveyor has not assessed loss to the retaining wall, but when  Petrol/Diesel Bunk

Building with Plinth and Foundation were insured for Rs.7,00,000/-, the cost of retaining wall,

by no stretch of imagination, can be assessed for Rs.9,00,000/- as opined by complainant’s

assessor.  It is also not clear what was the height of retaining wall and what was its length and

width and in such circumstances, amount of loss estimated by learned State Commission cannot

be said to be on lower side. We agree that leaned State Commission has not committed any error

in modifying order of District Forum and substituting compensation of Rs.7,00,000/- by

Rs.1,50,000/- for the retaining wall.

8.      Though, retaining wall was not covered under the insurance policy as held by us, but as no

revision petition has been filed by the respondent challenging impugned order, we cannot set

aside impugned order and dismiss the complaint. 

9.      We do not find any illegality, irregularity or jurisdictional error in the impugned order

assessing damage to the extent of Rs.1,50, 000/-to the retaining wall and revision petition is

liable to be dismissed. 

10.    Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to costs. 

                                     ..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO.   3266 OF 2008 (From the order dated  07.07.2008 in Appeal No. 1235/2008 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

 

Bajaj Allianz General Insurance Co. Ltd. Having its registered office at GE Plaza,Airport Road, Yerwada, Pune – 411 006 and Branch Office, inter alia, at M.G. Palace, Gopi Circle, Shimoga – 577201 Through: Shri Sanjay Gupta, Assistant Manager (Legal) Bajaj Allianz General Insurance Co. Ltd. Regional Office, 1 DLF 2nd Floor, Moti Nagar, New Delhi 110015.

…Petitioner/Opp. Party (OP)        Versus

Smt. R. Suguna widow of Late H. Srinivasa, D.No. 60, Sri Narasimha Sannidi, 2nd Keerthi Nagar, Shimoga – 577201 (Karnataka)

                …Respondent/Complainant

 BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner             :         Ms. Kanupriya Jaipuria, Proxy Counsel

For the Respondent         :         Mrs. Vaijayanthi Girish, Advocate

                                                 

PRONOUNCED   ON     16 th   September,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER          

This revision petition has been filed by the petitioner/OP against the order dated

07.07.2008 passed by the Karnataka State Consumer Disputes RedressalCommission, Bangalore

(in short, ‘the State Commission’) in Appeal No. 1235/2008 – M/s. Bajaj Allianz General Ins.

Co. Ltd. & Ors. Vs. Smt. R. Suguna by which, while dismissing appeal, order of District Forum

allowing complaint was upheld. 

2.       Brief facts of the case are that complainant/respondent’s husband H. Srinivasa, owner of

Motor Cycle No.KA-14-U-2526 obtained insurance policy from OP/petitioner for a period of

one year from 27.11.2006 to 26.11.2007 along with personal accident cover for

Rs.1,00,000/-.  Deceased H. Srinivas was holding valid driving licence and was not disqualified

from holding driving licence. On 9.3.2007, H. Srinivasa met with road accident due to rash and

negligent driving of another vehicle being run by one Raju and H. Srinivas succumbed to

injuries.  Complainant lodged claim, but OP/petitioner repudiated claim. Alleging deficiency on

the part OP, complainant filed complaint before District Forum.  OPs were proceeded ex-parte

and District Forum passed ex-parte order on 6.10.2007, which was later on recalled on the

application of OPs.  Later on, OP filed reply and admitted issuance of policy, but submitted that

complainant’s husband was not holding valid driving licence on the date of accident; hence, not

entitled to get benefits under the personal accident coverage and prayed for dismissal of

complaint. Learned District Forum after hearing both the parties allowed complaint and directed

OP to pay Rs.1,00,000/- along with 10% p.a. interest and further awarded Rs.5,000/- towards

mental agony and Rs.2,000/- towards litigation expenses.  Appeal filed by the petitioner was

dismissed by learned State Commission vide impugned order against which, this revision

petition has been has been filed.  

3.       Heard learned Counsel for the parties and perused record. 

4.      Learned Counsel for the petitioner submitted that as per terms and conditions of the policy,

owner-driver was covered under the policy and learned District Forum wrongly allowed

complaint and learned State Commission has committed error in dismissing appeal; hence,

revision petition be allowed and impugned order be set aside.  On the other hand, learned

Counsel for the Respondent submitted that order passed by learned State Commission is in

accordance with law; hence, revision petition be dismissed.  

5.      It is admitted case of the parties that complainant’s husband obtained policy from OP with

personal accident coverage of Rs.1,00,000/-.  It is also not disputed that on the date of accident

i.e. 9.3.2007, insured was not possessing valid driving licence as it had already expired on

5.11.2005.  

6.      Now, the main question to be decided in this case is as to whether; deceased was entitled to

personal accident coverage inspite of not holding valid driving licence on the date of accident. 

7.      Section 3 of the package policy reveals that in case of death of owner-driver of the vehicle

in direct connection with the vehicle insured, etc., he was entitled to 100% compensation.  The

proviso 1 of Section 3 runs as under:

                   “4.     This cover is subject to:(a)      The owner-driver is the registered owner of  

     the vehicle insured herein;(b)      The owner-driver is the insured named in this  

     policy;(c)     The owner-driver holds an effective driving

    license, in accordance with the provisions of  

    Rule 3 of the Central Motor Vehicles Rules,

   1989, at the time of the accident.

 

 

This proviso makes it very clear that owner-driver means, he must be registered owner of the

vehicle and his name must be shown as insured in the policy and further, owner-driver must hold

effective driving licence at the time of accident.

8.      Driver has been defined in the package policy as under:“DRIVER : Any person including the insured Provided that a person

driving holds an effective driving licence at the time of the accident and is

not disqualified from holding or obtaining such a licence. Provided also

that the person holding an effective Learner's licence may also drive the

vehicle and that such a person satisfies the requirements of Rule 3 of the

Central Motor Vehicles Rules, 1989

 

 

9.      Thus, it becomes clear that insured will be treated as driver only when he holds effective

driving licence at the time of accident  and is not disqualified from holding or obtaining such a

licence.  Thus, it becomes clear that insured should not have only hold valid driving licence at

the time of accident, but should also not have been disqualified from holding driving

licence.  Learned District Forum allowed complaint on the basis that deceased was not

disqualified from holding or obtaining licence which is apparently not proper interpretation of

the word ‘owner driver’. 

10.    Learned State Commission observed that if accident is not on account of negligence of the

insured, insurance company cannot repudiate liability whether insured had licence or

not.  Apparently, this observation is not in accordance with law. In the case in hand, complainant

is claiming personal accident benefits under the package policy which are admissible only when

insured was possessing valid driving licence at the time of accident.  As insured was not

possessing valid driving licenced at the time of accident, petitioner has not committed any

deficiency in repudiating claim and learned State Commission has committed error in dismissing

appeal and complaint is liable to be dismissed. 

11.    Consequently, revision petition filed by the petitioner is allowed and impugned order date

7.7.2008 passed by learned State Commission in Appeal No. 1235 of 2008 – M/s. Bajaj Allianz

General Ins. Co. Ltd. Vs. Smt. R. Suguna is set aside and complaint stands dismissed. There

shall be no order as to costs. 

                                     ..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.   1187 OF 2012 (From the order dated 19.01.2012 in First Appeal No. 141/2011of Chhattisgarh State Consumer Disputes Redressal Commission) M/s. Vijay Concerns, 70, Shakti Nagar, Rajnandgaon Through : Proprietor – Sheetal Sahu r/o Shakti Nagar, Rajnandgaon (C.G.)

                                 ...  Petitioner Versus 1.   State Bank of India, Through : Branch Manager Branch : Gaushala Para Rajnandgaon (C.G.) 2.   United India Insurance Company Limited Through : Branch Manager, Kamthi Line, Patel

Complex Rajnandgaon (C.G.)                                 … Respondent(s)

 REVISION PETITION NO.   1188 OF 2012 (From the order dated 19.01.2012 in First Appeal No. 159/2011of Chhattisgarh State Consumer Disputes Redressal Commission) M/s. Vijay Concerns, 70, Shakti Nagar, Rajnandgaon Through : Proprietor – Sheetal Sahu r/o Shakti Nagar, Rajnandgaon (C.G.)

                                 ...  Petitioner Versus 1.   State Bank of India, Through : Branch Manager Branch : Gaushala Para Rajnandgaon (C.G.) 2.   United India Insurance Company Limited Through : Branch Manager, Kamthi Line, Patel

Complex Rajnandgaon (C.G.)                                 … Respondent(s)

 BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s)   Mr. R.K. Bhawnani, AdvocateFor the Respondent-1   Mr. S.L. Gupta, AdvocateFor the Respondent-2   Mr. Abhishek Kumar, Advocate

 

PRONOUNCED   ON :   16 th   SEPT.     2013 O R D E R PER DR. B.C. GUPTA, MEMBER 

        These revision petitions have been filed under section 21(b) of the Consumer Protection

Act, 1986 by the petitioner against the impugned order dated 19.01.2012, passed by the

Chhattisgarh State Consumer Disputes Redressal Commission (for short ‘the State Commission’)

in appeals, i.e., Appeal No. 141/2011, “M/s. Vijay Concerns versus State Bank of India & Anr.”

and Appeal No. 159/2011, “United India Insurance Co. Ltd. versus M/s. Vijay Concerns

& Anr.”, vide which the order dated 10.02.2011 passed by the District Consumer Disputes

Redressal Forum in complaint case No. 56/2010 was set aside.  The District Forum vide their

order had allowed the complaint filed by the present petitioner/complainant and ordered the

United India Insurance Company (hereinafter referred to as ‘Insurance Company’) to pay a sum

of Rs.3.6 lakh to the complainant.  The State Commission, however, allowed the appeal of the

insurance company and dismissed the complaint.  

2.     Brief facts of the case are that the petitioner/complainant, who is a contractor by profession,

had initially availed a cash-credit limit of Rs.3 lakh from respondent no. 1/OP No. 1, State Bank

of India in the year 2004, which was subsequently raised to Rs.9 lakh.  It has been stated in the

complaint that the complainant is a single ownership firm whose proprietor is Sheetal Sahu.  As

per the complainant, the OP No. 1 Bank had taken the Insurance Policy from the Insurance

Company/OP No. 2 for the security of the loan and paid the requisite premium and deducted the

same from the account of the complainant.  The policy issued by the Insurance Company is

known as Shopkeeper Insurance Policy and was issued in the name of ‘State Bank of India

Account M/s. Vijay Concerns’.  After taking loan from the Bank, the complainant was

constructing a bridge at Shivnath River, Gram Girri, District Rajnandgaon.  During the

construction of the bridge on 15.07.2009, the bridge which was constructed by the complainant

was destroyed due to heavy rains and flood.  The complainant informed the insurance company

which appointed a surveyor to assess the loss.  The said surveyor submitted his report on

23.11.2009 and assessed the loss as Rs.3,73,942/-.  However, the amount was not paid to the

complainant by the Insurance Company taking the stand that the complainant had taken the

Shopkeeper Insurance Policy, under which the company was not liable to pay damages for the

bridge.  The Insurance Company informed that the insurance had been done regarding the

building material for the shop situated at Shakti Nagar.  The complainant has alleged that it was

the duty of the Bank to take correct insurance policy, as they had filled the proposal form

themselves.  No intimation was given to the complainant by the Bank while filling the proposal

form.  The policy was got renewed by the Bank from time to time.  The complainant alleged that

the Bank had committed deficiency in service by filling proposal form wrongly.  The

complainant demanded a sum of Rs.5,16,451/- for the loss suffered and Rs.25,000/- for mental

harassment along with interest @18% p.a. from the OPs. The District Forum after taking into

account the evidence of the parties, directed that a sum of Rs.3,60,000/- should be paid by the

Insurance Company to the complainant for the loss suffered by him.  Two appeals were filed

before the State Commission – one by the petitioner/complainant and other by the Insurance

Company.  The State Commission dismissed the appeal filed by the petitioner/complainant and

allowed the appeal of the Insurance Company and held that both the Bank and the Insurance

Company had not committed any deficiency in service, and hence the complainant was

dismissed.  It is against this order that the present petitions have been filed. 

3.     At the time of hearing, the learned counsel for the petitioner stated that the policy in

question was obtained from the Insurance Company by the Bank and they had filled the

necessary proposal form.  Learned counsel has drawn our attention to the terms and conditions of

the CC Loan saying that the entire building material kept at the construction sites was

hypothecated to the Bank, and hence it should be covered by the insurance policy.  The learned

counsel has also drawn our attention to the written statement filed by the Bank before the District

Forum, in which they have stated that the Insurance Company by mistake had issued the

Shopkeeper Insurance Policy.  Learned Counsel stated that it was within the knowledge of the

Bank that Insurance Policy was wrongly issued; hence they should have got it rectified.   Further,

on the policy itself, it had been written that the business of the complainant was building material

shop.  The said building material was to be placed at the construction site only. 

4.     The learned counsel for the Insurance Company stated that they had issued the policy, based

on the proposal form submitted by them and it was a Shopkeeper Insurance Policy. 

5.     The learned counsel for the Bank submitted that it was the responsibility of the complainant

to inform the OPs about the change of site of construction.  In fact, the insurance policy had been

taken by the complainant himself for the first time, but the Bank had only got it renewed from

time to time.  It was the duty of the complainant to have remained vigilant about the terms and

conditions of the Policy.  The Bank could not be blamed for any deficiency in service. 

6.     We have examined the entire material on record and given a thoughtful consideration to the

arguments advanced before us. 

7.     In the copy of the “Agreement for Cash Credit for Hypothecation of Goods” executed

between the petitioner/complainant and the Bank, it has been stated in paragraph 5 as follows:-“That the said goods shall be kept at the borrower’s risk and expense in good condition and fully insured against loss or damage as may be required by the Bank.”

 

8.     It has been rightly observed by the State Commission in their order that as per this

document, the obligation was on the petitioner/complainant to have the goods insured against

loss or damage.  Further, the petitioner /complainant was required to submit to the Bank regular

stock statements with lists of insured articles duly verified. It may be true that in practice, the

Bank had availed and submitted the proposal form and obtained the insurance policy on behalf of

the complainant, but it was also the duty of the complainant to be vigilant about the terms and

conditions of the policy and also to inform the concerned quarters about the exact place, where

the building material was kept.  In the absence of such information, the Insurance Company is

well within its rights to say that the insurance was done only for shop at Shakti Nagar and it was

a Shopkeepers Insurance Policy and hence they are not liable to make payment against the

claims under the Policy.  From the material on record, it is very clear that the place where the

loss has occurred was not within the knowledge of the Insurance Company.  Moreover, the Bank

can also not be held liable for any deficiency in service, because it was the primary duty of the

complainant/ petitioner to obtain the Insurance Policy and to have knowledge about its terms and

conditions. 

9.     The State Commission while passing the impugned order have rightly placed reliance on the

orders passed by the Hon’ble Supreme Court in the case “United India Insurance Co. Ltd. versus

M/s. Harchand Rai Chandan Lal [(2005) (1) CPR 64 (SC)] and in the case

“DeokarExports Pvt. Ltd. versus New India Assurance Co. Ltd.” [I (2009) CPJ 6 (SC)],

according to which the rights and obligations of the parties are strictly governed by the policy of

Insurance and no exception or relaxation can be made on the grounds of equity.  Further, a

similar view has been expressed by the Hon’ble Supreme Court in the case of “Suraj Mal

Ram Niwas Oil Mills Private Ltd. versus United India Insurance Co. Ltd. & Anr.” [(2010) 10

SCC 567], in which it has been observed by the Hon’ble Supreme Court as follows:-“The Courts should always try to interpret the “words” in the insurance contract as they have been expressed by the parties.  It is not open for the Court to add, delete or substitute any words.  The words used in the Insurance Contract must be given paramount importance.”

 

10.   In the light of these facts stated above, we do not find any merit in these petitions.   There is

no illegality, irregularity or jurisdictional error in the impugned order passed by the State

Commission.  The revision petitions are, therefore, ordered to be dismissed and the order passed

by the State Commission is upheld with no order as to costs. Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER  Sd/-(DR. B.C. GUPTA)MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 102 OF 2013(From the order dated 8.11.2012 in First Appeal No.1669/2011 of theHaryana State Consumer Disputes Redressal Commission Panchkula) Devender Singh S/o Sh. Niranjan Singh R/o Village Bindhroli, Tehsil & Distt. Sonepat

…  PetitionerVersus

Oriental Insurance Co. Ltd. Regd. Office at: Oriental House PN No.7037,A-25/27, Asaf Ali Road, New Delhi

                                                                …  Respondent BEFORE:                                                       HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBERHON’BLE MR. SURESH CHANDRA, MEMBER For the Petitioner             : Mr. T.P.S. Teji, AdvocateFor the Respondents        : Ms. Amrita Swaroop, Advocate

                                         Alongwith Mr. Gaurav Malhotra, Advocate 

PRONOUNCED ON:       19 th   SEPTEMBER,     2013

ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision is directed against the order of the State Consumer Disputes Redressal

Commission, Haryana (for short, ‘the State Commission’) dated 8.11.2012 whereby the State

Commission accepted the appeal preferred by the opposite party/Insurance Company against the

order of the District Forum and set aside the said order holding that the complaint was barred by

limitation.

2.       Briefly put, facts relevant for the disposal of this revision petition are that the

complainant’s truck No. HR 69-7163 was insured with the respondent/opposite party. The said

truck was stolen on 3.5.2008 and FIR in this regard was registered at police station Jhajhar vide

FIR No.288 under Section 379 IPC on 13.6.2008. The complainant lodged his insurance claim

with the opposite party but despite of several visits to the office of the opposite party the

respondent/opposite party failed to settle the claim. Consequently, the petitioner was compelled

to file consumer complaint under Section 12 of the Consumer Protection Act, 1986.

3.       The respondent/opposite party in its written statement took a preliminary objection that the

complaint was pre-mature as the claim of the complainant had not been repudiated. On merits

respondent took the plea that theory of the theft of the truck was false and the complainant had

obtained untraced report in collusion with the police. It was also claimed that the complainant

had failed to intimate the respondent- Company about the theft of vehicle within a reasonable

period.

4.       District Forum, Sonepat on consideration of evidence came to the conclusion that the

respondent was deficient in service and allowed the complaint with following reliefs: -

 “Accordingly, it is directed to the respondents to make the payment of Rs.10,40,000/- (Rs.Ten Lacs forty thousands) to the complainant alongwith interest at rate 9% per annum from the date of the theft of truck no.HR69/7163 and further to compensate the complainant to the tune of Rs.2000/- (Rs.Two thousands) for rendering deficient services, unnecessary harassment and further to pay a sum of Rs.2000/-(Rs. Two thousands) under the head of litigation expenses. The present complaint stands allowed with the direction to the respondent to make compliance of this order.            It is made clear here that the complainant shall complete the formalities and shall submit the required documents and shall transfer the RC of the truck no.HR69/7163 in the name of the respondent insurance company for the settlement of his claim at the earliest possible.            With these observations, findings and directions, the present complaint stands allowed and the respondent is directed to make the compliance of this order within one month from the date of passing of this order.”

 5.       Being aggrieved of the impugned order respondent preferred an appeal before the State

Commission and the State Commission set aside the order of the District Forum and dismissed

the complaint filed by the petitioner as barred by limitation vide the impugned order. The State

Commission, however did not address the merits of the case.

6.       Being aggrieved of the finding of the State Commission petitioner has preferred this

revision petition. Learned Shri T.P.S. Teji, Advocate for the petitioner has contended that the

impugned order of the State Commission is erroneous as the State Commission has failed to

appreciate that as per the allegations in the written statement the insurance claim of the petitioner

was still under the consideration of the respondent. Learned counsel submitted that since the

claim was not repudiated the State Commission had fallen in error in holding that the complaint

was barred by limitation.

7.       Learned counsel for the respondent on the contrary has contended that the State

Commission has rightly held that the cause of action arose in favour of the complainant on the

date on which the theft took place and since the complaint was filed on 4.2.2011 i.e. after the

expiry of three years and seven months the State Commission was right in holding that it was

barred by limitation in view of Section 24A of the Consumer Protection Act, 1986.

8.       We have considered the rival contentions. On perusal it is seen that the State Commission

in support of its conclusion has relied upon the judgment of the Supreme Court. Relevant portion

of the order is reproduced thus: - 

“The Hon’ble Supreme Court in case cited as Kandimalla Raghavaiah & Co. vs. National Insurance Co. Ltd. & Anr., 2009 CTJ 951 (Supreme Court) (CP)   relied upon its earlier decision in State Bank of India vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP)= JT 2009 (4) SC 191 and in para No.12 of the judgment held as under:

 “12      Recently, in State Bank of India vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP)=JT 2009 (4) SC 191, this Court, while dealing with the same provisions, has held: “8        It would be seen from the aforesaid provision that it is premptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”

 9.       The Supreme Court in the above noted judgment has interpreted the scope of Section 24A

of the Consumer Protection Act. There can be no dispute regarding the legal position enumerated

in the above judgment. The import of the said judgment is that a consumer complaint should be

filed within two years from the date of accrual of cause of action. Thus, the crucial issue in this

revision petition is as to when the cause of action has accrued. Admittedly, this is a case of

insurance claim which was still under consideration of the insurance company. Therefore, till the

insurance company had taken the decision on the complaint, the cause of action for filing the

complaint continued. Therefore, in our considered view the State Commission has committed a

grave error in holding that the complaint was barred by limitation. As such, the impugned order

cannot be sustained.

10.     Consequently, we accept the revision petition, set aside the impugned order of the State

Commission and remand the matter back to the State Commission to decide the appeal on merits

after giving opportunity of being heard to the parties.

11.     Parties are directed to appear before the State Commission on 21.10.2013. …………………………..(AJIT BHARIHOKE, J.)PRESIDING MEMBER  …………………………..(SURESH CHANDRA)                  MEMBERRaj/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        REVISION PETITION NO.   1046-1047 OF 2008 (From the order dated 16.10.2007 in Appeal No. 799/2006 & 206/2007 of the Orissa State Consumer Disputes Redressal Commission, Cuttack)

 

United India Insurance Co. Ltd. Rourkela Main Road, Rourkela P.S. Plant Site, Dist. Sundargarh At present represented by the Manager Regional Cell, Bhubanewar

                           …Petitioner/Opp. Party (OP-1)       

Versus1. Visakha Enterprises Prop. M.J. Pattnaik Basanti Colon, Qrts. No. FL-279, P.O. 769012 P.S. Udit Nagar Distt. Sundargarh

                                     …Respondent-1/Complainant

2. Central Bank of India Steel Township Branch Rourkela-6, PO Rourkela-2, P.S. Sector-7, Dist. Sundargarh

                                      …Respondent-2/OP-2

 REVISION PETITION NO.   1948 OF 2008

(From the order dated 16.10.2007 in Appeal No. 799/2006 & 206/2007 of the Orissa State Consumer Disputes Redressal Commission, Cuttack)

 

                                             

1. Visakha Enterprises Prop. M.J. Pattnaik Basanti Colon, Qrts. No. FL-279, P.O. 769012 P.S. Udit Nagar Distt. Sundargarh

                                     …Petitioner/Complainant

 

                                                   Versus

United India Insurance Co. Ltd. Rourkela Main Road, Rourkela P.S. Plant Site, Dist. Sundargarh At present represented by the Manager Regional Cell, Bhubanewar

                       …Respondent No.1/Opp. Party-1         

 2. Central Bank of India Steel Township Branch Rourkela-6, PO Rourkela-2, P.S. Sector-7, Dist. Sundargarh                                 …Respondent-2/OP-2

 

BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For United India Ins. Co. Ltd.  :  Mr. Vineet Malhotra, Advocate with Mr.  

                                                   Vishal Gohri & Mr. Parag Sharma,   

                                                   Advocates

 For Visakha Enterprises      :  Mr. Arunav Patnaik, Mr. D.B. Ray & Mr.

Bhabha Das, Advocates.

For the Res. No. 2                :  Ex-parte

PRONOUNCED ON 19 th   September ,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER          

All these revisions arise out of judgement dated 16.10.2007 in appeals filed against

judgement of the District Forum.  Accordingly, the revisions were heard together and are being

disposed of by common order. 

These revision petitions have been filed by the petitioners against the order dated

16.10.2007 passed by the Orissa State Consumer Disputes RedressalCommission, Cuttack (in

short, ‘the State Commission’) in Appeal No. 799/2006 – United India Ins. Co. Ltd.

Vs. Visakha Enterprises and  Appeal No. 206/2007 – Visakha Enterprises Vs. United India Ins.

Co. Ltd. by which, while dismissing appeal of the Insurance Company, appeal of complainant

was partly allowed and while confirming order of District Forum allowing complaint,

compensation was enhanced. 

2.      Brief facts of the case are that complainant Visakha Enterprises was dealing in acid, etc. for

which loan from Central Bank of India under hypothecation was taken and business premises

were insured with OP No. 1 – United India Insurance Co. for a period of one year from

25.7.2003 to 24.7.2004.  On 25.10.2003, fire broke out in the insured premises as a result of

which, complainant’s stock was burnt. Complainant lodged claim with the Insurance Company,

but claim was not allowed.  Alleging deficiency on the part of OPs, complainant filed complaint

with District Forum. OPs resisted complaint and OP No. 1 submitted that shifting of godown by

the complainant in the premises where fire took place was beyond the knowledge of OP and also

denied value of stocks in the premises and prayed for dismissal of complaint.   OP No. 2

submitted that as complaint did not disclose any cause of action against OP No. 2, complaint

may be dismissed.  After hearing both the parties, learned District Forum allowed complaint

against OP No. 1 and directed OP No. 1 to pay Rs.9,50,000/- and Rs.10,000/- as compensation

towards mental agony and Rs.5,000/- towards cost of litigation and complaint was dismissed

against OP No. 2.  Both the parties filed appeal against impugned order and learned State

Commission while dismissing appeal of Insurance Company, partly allowed appeal of

complainant and enhanced compensation to Rs.12,51,000/- from Rs.9,50,000/- against which,

these revision petitions have been filed.  

3.      Respondent No. 2 did not appear even after service; hence, proceeded ex-parte. 

4.      Learned Counsel for the petitioner-Insurance Co. submitted that insured premises were

changed by the complainant without any intimation to the Insurance Co. and the place where the

fire took place was not covered under policy; even then, learned State Commission has

committed error in dismissing appeal.  It was further submitted that though insurance policy was

only of Rs.10,00,000/-; even then, learned State Commission committed error in allowing

Rs.12,51,000/-;hence, revision petition be allowed and impugned order be set aside.  On the

other hand, learned Counsel for Visakha Enterprises submitted that insured premises were

changed under intimation to the Insurance Company and learned District Forum has not

committed any error in allowing complaint. Learned Counsel for Visakha Enterprises admitted

that as policy was for Rs.10,00,000/-, State Commission should not have allowed Rs.12,51,000/-,

but submitted that learned District Forum and State Commission have committed error in not

granting interest; hence, revision petition be allowed and interest be awarded.       

5.      Learned District Forum rightly observed that OP No. 2 Central Bank of India intimated to

OP-Insurance Co. regarding shifting of godown by the petitioner vide letter dated 18.8.2003 and

fire took place on 25.10.2003 and in such circumstances, matter of shifting of godown was

within the knowledge of OP No. 1. Letter dated 14.1.2005 issued by United India Ins. Co. to

complainant clearly reveals that endorsement regarding change of insured place has been made

on the basis of letter of complainant dated 16.8.2003 addressed to Central Bank of India for

shifting of godown due to lack of space.  This admission makes it crystal clear that change

of godown by the complainant before fire took place was within the knowledge of insurance

company and arguments of learned Counsel for the Insurance Co. is devoid of force to the extent

that fact of change of godown was not communicated by the complainant to Insurance Co.

 

6.      Learned Counsel for the Insurance Co. further submitted that in the complaint reason for

change of godown has been shown as due to marriage of complainant’s son, whereas as per letter

dated 14.1.2005, it was changed due to lack of space which is contradictory. This argument has

no bearing on the dispute because we are not concerned with the reason for shifting of

the godown, but we are concerned only to the extent that whether shifting of godown within the

knowledge of Insurance Co. or not.  Further, Insurance Co. has not placed on record letter of

complainant dated 16.8.2003, which would have revealed reason for change of godown.  Thus, it

becomes clear that complainant shifted godown within the knowledge of Insurance Company

and learned District Forum rightly allowed complaint. 

7.      As far as amount of compensation is concerned, learned State Commission has based its

finding on the basis of statement of stock in complainant’sgodown, which was available with the

Financer Bank as on 25.10.2003.  As per stock statement, goods were worth Rs.12,50,493.88 in

the  godown and everything burnt due to fire, but as insurance policy was only for

Rs.10,00,000/-, State Commission should not have enhanced compensation to Rs.12,51,000/-

and compensation should have been awarded only to the extent of Rs.10,00,000/- for which

insurance policy was taken.  To this extent, revision petition filed by the insurance company is to

be allowed.

8.      Learned Counsel for the complainant Visakha Enterprises submitted that interest has not

been granted to the complainant.  Perusal of complaint reveals that complainant claimed

compensation along with bank interest.  There is nothing on record to arrive at conclusion about

rate of bank interest at the time of filing complaint. Learned Counsel for the complainant placed

reliance on judgment of Hon’ble Apex Court in C.A. Nos. 6075-76 of 1995 – The United India

Insurance Co. Ltd. Vs. M.K.J. Corporation with M.K. J. Corporation Vs. The United India

Insurance Co. Ltd. in which, interest @ 12% p.a. was allowed, as Insurance Co. was investing

money in the securities specified by the Government of India @ 11.3% p.a.   He also placed

reliance on judgment of this Commission decided on 24.3.2008 Jamnadas Madhavji International

Ltd. Vs. The New India Assurance Co. Ltd. and D. Himatlal and Co. in which 12% p.a. interest

was allowed.  In the case in hand, as Bank interest on the date of filing complaint has not been

specified, we deem it proper to allow interest @ 9% p.a. normally granted by the Banks on

FDRs.  Learned Counsel for the Insurance Co. submitted that by order dated 16.4.2008 this

Commission stayed operation of impugned order subject to depositing Rs.10,00,000/- with the

State Commission. Learned Counsel further submitted that Rs.10,00,000/- has already been

deposited with the State Commission. In such circumstances, we hold that complainant is

entitled to interest @ 9% p.a. on Rs.10,00,000/- from the date of filing till the amount was

deposited by Insurance Company with the State Commission and complainant is further entitled

to receive accrued interest, if any, on Rs.10,00,000/- deposited with the State Commission.

9.      Consequently, Revision Petition Nos. 1046-1047 of 2008 filed by United India Insurance

Co. Ltd. are partly allowed and impugned order dated 16.10.2007 passed by learned State

Commission in Appeal No. 799/2006 and Appeal No. 206/2007 is modified and Insurance Co. is

directed to pay Rs.10,00,000/- instead of Rs.12,51,000/- to complainant, Visakha Enterprises.

Revision Petition No. 1948 of 2008 filed by complainant, Visakha Enterprises is also allowed

and impugned order passed by learned State Commission is modified and it is held that

complainant is entitled to receive Rs.10,00,000/- along with 9% p.a. interest from the date of

filing complaint till money deposited by Insurance Co. with the State Commission and further

any interest accrued on Rs.10,00,000/- deposited with the State Commission along with

Rs.10,00,000/- deposited with the State Commission.  There shall be no order as to costs.                                         ..……………Sd/-………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

 

..…………Sd/-…………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO.   4173 OF 2012 (From the order dated 18.07.2012 in Appeal No. 342/2007 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

 

Life Insurance Corporation of India Manager (L&HPF) Divisional Office, Sector – 17B, Chandigarh Through Assistant Secretary (Legal) C.O. Legal Cell (LICI), H-39, New Asiatic Building First Floor, Connaught Place, New Delhi

                                                    …Petitioner/Opp. Party (OP)        Versus

Mr. Gyaninder S/o Mewa Singh H. NO. 7322, Urban Estate Block-D, Jind

                                                   …Respondent/Complainant

 BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner     :       Mr. Ashok Kashyap, Advocate

For the Respondent :       NEMO

 

PRONOUNCED   ON     19 th   September,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the petitioner/OP against the order dated

18.07.2012 passed by the Haryana State Consumer

Disputes RedressalCommission, Panchkula (in short, ‘the State Commission’) in Appeal No.

342/2007 – LIC of India Vs. Mr. Gyaninder by which, while partly allowing appeal cost of

Rs.20,000/- was imposed and order of District Forum allowing complaint was modified. 

2.      Brief facts of the case are that insured Gyaninder, brother of the Complainant/respondent

obtained insurance policy on 15.9.2002 for Rs.10,00,000/- with double accidental benefits from

OP/petitioner disclosing income of Rs.1,20,000/- p.a. from agriculture.  Assured died on

10.8.2003 in a road accident. Complainant preferred claim before OP/petitioner, which was

repudiated on the ground of wrong information regarding his annual income. Alleging deficiency

on the part of OP, complainant filed complaint before District Forum. OP resisted

complaint.  Learned District Forum after hearing both the parties allowed complaint and directed

OP to pay Rs.20,00,000/-. Appeal filed by the petitioner was partly allowed by learned State

Commission vide impugned order and State Commission set aside order granting relief for

double accident benefits and directed petitioner to pay Rs.10,00,000/- instead of Rs.20,00,000/-

but while disposing appeal imposed cost of Rs.20,000/- which was to be recovered from erring

officials of the petitioner responsible for repudiation of claim against which, this revision petition

has been filed. 

3.      None appeared for the respondent, but by letter dated 3.9.2013, respondent expressed that

matter may be decided. 

4.      Heard learned Counsel for the petitioner and perused record.   

5.      Learned Counsel for the petitioner submitted that petitioner had every right to file first

appeal against the order of District Forum and appeal was partly allowed by District Forum and

amount was reduced from Rs.20,00,000/- to Rs.10,00,000/-; even then, learned State

Commission has committed error in imposing cost of Rs.20,000/- to be recovered from erring

officials of petitioner which was not warranted and prayed for setting aside imposition of cost. 

6.      Perusal of record clearly reveals that though there was no accidental benefit available in the

policy of Rs.10,00,000/-, complainant claimed double accident benefits before District Forum

and District Forum allowed double accidental benefits and ordered the petitioner to pay

Rs.20,00,000/- which was not in accordance with law as policy was not issued for double

accidental benefits.  Learned State Commission rightly partly allowed appeal and substituted

Rs.10,00,000/- for Rs.20,00,000/- awarded by District Forum. 

7.      When appeal was partly allowed by State Commission, imposition of cost on erring

officials of petitioner was not warranted at all as no double accidental benefits were available in

the policy issued by petitioner.  Officials of the petitioner acted in bonafide and in the light of

Section 47 of the Life Insurance Corporation Act, officials were not liable for any cost. 

8.      Learned Counsel for the petitioner has also placed reliance on 2013 (2) SCALE 239

- Lucknow   Development Authority  Vs. Shyam   Kapoor  in which,Hon’ble Apex Court set aside

cost imposed upon the appellant by the National Commission. 

9.      In the light of above discussion, we are of the opinion that imposition of cost of Rs.20,000/-

on petitioner was not warranted at all as appeal was partly allowed by learned State

Commission.  In such circumstances, revision petition is allowed.  

10.    Consequently, revision petition filed by the petitioner is allowed and order imposing cost of

Rs.20,000/- in impugned order dated 18.7.2012 passed by learned State Commission in Appeal

No. 342/2007 – LIC Vs. Gyaninder is set aside. 

                                     ..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSON NEW DELHI REVISION PETITION NO.   4150 OF 2007 (From the order dated 02.08.2007 in Appeal No.1499/2006 of the Rajasthan Consumer Disputes Redressal Commission, Jaipur)

1. Life Insurance Corporation of India Branch Office Bharatpur Distt. Bharatpur (Rajasthan)

2. Life Insurance Corporation of India Divisional Office “Jeevan Prakash”, Ranade Marg, P.B. No. 2, Ajmer – 305008, (Rajasthan)

3. Life Insurance Corporation of India Northern Zonal Office, Jeevan Bharti 124 Connaught Circus, New Delhi – 110001 All through Mr. J.C. Ahuja Asstt. Secretary (L&HPF)

                  … Petitioners/Opposite Parties (OP)

                                       Versus1. Smt. Ram Sakhi W/o Late Shri Mahaveer Singh R/o Village Kelluri, Post Ronija Tehsil Nadbai, Distt. Bharatpur, (Rajasthan)

2. Government of Rajasthan Through District Collector, Bharatpur, Rajasthan

2. The Chief Medical & Health Officer Medical and Health Department Government of Rajasthan Sawaimadhopur, Rajasthan

                … Respondents/Complainants

 

BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner                    :           Mr. Mohinder Singh, Advocate

For the Respondent No.1       :           Mr. Ritesh Agrawal, Advocate

For the Respondent Nos.2&3:            Exparte

 

PRONOUNCED   ON     20 th   September,     2013  

O R D E R 

In Revision Petition No. 4150/07 – Life Insurance Corporation of India & Ors. Vs.

Smt. Ram Sakhi & Ors.  arguments were heard on 01.08.2013 by our Bench.  Judgment

was dictated by Hon’ble Presiding Member and sent for approval to Hon’ble Dr. B.C.

Gupta, Member.  Hon’ble Dr. B.C. Gupta sent dissenting judgment.  As Members of the

Bench differ in their opinion, the matter may be placed before Hon’ble President, NCDRC

under Section 20 (i) (iii) of the Consumer Protection Act for appropriate directions.

  

………………Sd/-…………….

(K.S. Chaudhari, J. )

              Presiding Member

                                                                                                

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

          FIRST APPEAL NO. 454 OF 2007

(Against the order dated 18.05.2007 in Original Complaint No. 15/1997 of the H.P. State Consumer Disputes Redressal Commission, Shimla) 

Sher Singh Shobta S/o Shri Roop Singh Shobta R/o V & PO Baghi Tehsil Kothkai District Shimla Himachal Pradesh

      Appellant

  Versus

National Insurance Co. Ltd. Through its Manager New Land Estate Circular Road Shimla-1 Himachal Pradesh

                                                       …      Respondent

 

FIRST APPEAL NO. 550 OF 2007

(Against the order dated 18.05.2007 in Original Complaint No. 15/1997 of the H.P. State Consumer Disputes Redressal Commission, Shimla) 

1.  M/s National Insurance Co. Ltd. Regd. Office: 3, Middleton Street Kolkata

2.  M/s National Insurance Co. Ltd. Regional Office Jeewan Bharati Tower-II, Level-IV 124, Connaught Place New Delhi-110001

                                                       …      Appellants

  Versus

 Sher Singh Shobta S/o Shri Roop Singh Shobta R/o V & PO Baghi Tehsil Kothkai District Shimla Himachal Pradesh

                                                       …      Respondent

 BEFORE:

           HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

          HON’BLE MR. VINAY KUMAR, MEMBER

 Appearance in both matters

 

For Sher Singh Shobta        :         Mr. H.S. Upadhyay, Advocate

For Insurance Company  :   Mr. R.C.S. Bhadoria, Advocate for

                                                Ms. Sonia Sharma, Advocate

 

Pronounced   on :     23 rd   September, 2013

ORDER

PER VINEETA RAI 

1.      These are two cross-appeals.  While First Appeal No.454 of 2007 has been filed

by Sher Singh Shobta, Complainant before the Himachal Pradesh State Consumer Disputes

Redressal Commission, Shimla (hereinafter referred to as the State Commission), being

aggrieved by the lesser amount awarded to him by the State Commission, First Appeal No. 550

of 2007 has been filed by National Insurance Company Ltd., Respondent before the State

Commission, being aggrieved by the order of the State Commission which had partly allowed

the complaint of Sher Singh Shobta and directed the National Insurance Company Ltd. to pay

him Rs.2,28,000/- in settlement of his insurance claim subject to return of salvage on “as is

where is” basis alongwith compensation of Rs.1,00,000/- and Rs.10,000/- as litigation costs.  The

State Commission had also directed the National Insurance Company Ltd. to fix responsibility on

the officer who had delayed in settling the insurance claim and directed that the interest amount

of Rs.1,48,578/- be recovered from the defaulting officer.

Since both the appeals arise from a common order of the State Commission, we also

propose to dispose of these appeals by a single order by taking the facts from First Appeal No.

454 of 2007.  The parties will be referred to in the manner in which they were referred to in the

complaint i.e. Sher Singh Shobta as Complainant and National Insurance Company Ltd. as

Opposite Party. 

2.      Briefly stated, the facts of the case are that the Complainant who was owner of a Tata truck

bearing registration no. HP-07 1429 had got the said truck insured from 01.11.1996 to

31.10.1997 with the Opposite Party/Insurance Company for a sum of Rs.3,80,000/-.  The

aforesaid truck met with an accident on 30.04.1997 near Darlaghat in Solan District, when it fell

1700 feet into a deep gorge resulting in its total loss.  Complainant immediately informed the

Opposite Party/Insurance Company about the accident and an FIR was also lodged on the same

day at Police Station Darlaghat. Opposite Party/Insurance Company appointed a Surveyor, who

inspected the site as also the vehicle and submitted a report to the Opposite Party/Insurance

Company.  Thereafter, the Complainant recovered the salvage from the spot of the accident

which took over a month at a cost of Rs.50,000/- for carrying it to Shimla, where it is still lying

in a store since it cannot be used.  The storage charge is being borne by the Complainant till

date.  Although the Complainant informed the Opposite Party/Insurance Company about the

accident and the total loss of the vehicle stating that it was not repairable, Opposite

Party/Insurance Company did not settle the claim.  Complainant, therefore, issued a legal notice

requesting for settlement of the claim within 15 days but still received no response.  Since

Complainant was deprived of his livelihood and had also to pay back the loan which he had

taken from H.P. Financial Corporation at high rate of interest for the vehicle, he filed a complaint

before the State Commission on grounds of deficiency in service and requested that the Opposite

Party/Insurance Company be directed to pay him a sum of Rs.6,55,000/- as per the following

details :(1) Insured amount of vehicle (being cost of total

loss) 

Rs.3,80,000 

(2) Liability of payment to Financer 

Rs.1,00,000

(3) Recovery of salvage and carriage thereof to Shimla 

Rs.50,000

(4) Rent of store where salvage is kept and other misc. expenses from the date of accident 

Rs.25,000

(5) Damages for loss of business and mental harassment due to deficiency in service

Rs.1,00,000

                                                 Total Rs.6,55,000/- 

3.      Opposite Party/Insurance Company on being served denied that there was any deficiency in

service.  It was contended that the Complainant himself was responsible for the delay in the

settlement of insurance claim as he did not supply the required documents, including the original

driving license of the driver. Further, the vehicle was got inspected through a Technical Surveyor

– M/s Esquire Technocrats, who vide their report dated 05.08.1997 assessed the damage to the

vehicle at Rs.1,48,578.28 ps. but the Complainant was adamant that it should be assessed on total

loss basis and demanded the full sum insured. Opposite Party/Insurance Company had informed

the Complainant that subject to supply of required documents, the claim would be settled as per

the amount assessed by the Surveyor, which he failed to do and instead filed a complaint before

the State Commission. 4.      When the case was first heard by the State Commission, it allowed the complaint and

directed the Opposite Party/Insurance Company to pay the Complainant Rs.3,80,000/- together

with interest.  The said order was challenged by the Opposite Party/Insurance Company before

the National Commission, which remanded the case to the State Commission to decide it afresh

as the impugned order was not signed by the then President of the State Commission. Thereafter

the State Commission after hearing the case, partly allowed the complaint and directed the

Opposite Party/Insurance Company to settle the claim and pay the Complainant Rs.2,28,000/- by

permitting depreciation at 40% keeping in view the age of the vehicle together with interest @

9% per annum from the date of institution of the complaint i.e. 05.11.1997, subject to return of

salvage on “as is where is” basis alongwith the R.C. of the vehicle.  In case the Opposite

Party/Insurance Company wanted the R.C. to be transferred in its name, Complainant would do

the needful at the cost and expense of the former whenever required in writing.  Since there was

inordinate delay in settling the claim, the State Commission directed the Opposite

Party/Insurance Company to pay Rs.1,00,000/- as compensation for non-settlement of the claim

within reasonable time alongwith litigation costs of Rs.10,000/-.  The relevant part of the order

of the State Commission is reproduced:

“8.      We have thoroughly examined Annexure R.2. It is not at all satisfactory. Substantive items in it have been mostly disallowed or have been found to be not covered. Above all, the cost of labour/repairs have been put to less than half by the Surveyor. On what basis and for what reasons, nothing is mentioned by him in the report. Why majority of the claim has been disallowed, there is no reason given and none could be explained by the learned Counsel for the Insurance Company. It hardly needs to be mentioned in this behalf that Surveyor is an expert appointed by the Government of India who possesses the expertise in the line of loss assessment. It is well known that in order to enable the authority/court/semi judicial authority to read evidence of an expert, he has to support everything by some reason/logic, howsoever brief it may be. We are sorry to observe that though claims have been disallowed, but no reasons are given. Even the costs of parts have been reduced. Even price of parts which were required to be replaced, have been reduced in most of the cases. In the end of R-2, there is a mention that prices recommended for new parts were according to manufacturer’s list price but no such price list is attached. Whether such enquiry was made from authorized dealer of the Company or elsewhere, not a word has been said by the Surveyor. And on this aspect we are of the view that the Surveyor acted more as an employee of the opposite party, rather than acting as an independent expert. …”

 

          Hence, the present cross-appeals.

5.      Learned Counsels for both parties made oral submissions.6.      Counsel for the Complainant brought to our attention the report of the Surveyor - M/s

Esquire Technocrats deputed by the Opposite Party/Insurance Company and which in its report

listed out the extensive damage caused to the vehicle clearly indicating that almost every part of

the vehicle was damaged, including the chassis, the engine and other key components.  Since the

vehicle had admittedly fallen into a 1700 feet deep ravine, the vehicle was totally damaged and

could not be repaired.  The Surveyor while listing out the specific damage in respect of almost

every part of the vehicle erred in concluding that the vehicle could be fully repaired on the basis

of some estimates of repairs and after deducting almost 50% towards depreciation and thus

recommending that the net loss was, therefore, only of Rs.1,48,578.28 ps.  The vehicle had been

insured for Rs.3,80,000/- just 9 months prior to the accident and, therefore, deducting such a high

depreciation was also not justified.  The State Commission had concluded that the cost of repairs

had been grossly under-valued but erred in not concluding that the vehicle was in fact a total loss

and thus not repairable.

7.      Counsel for the Opposite Party/Insurance Company stated that the loss of the vehicle was

assessed after an on the spot survey by a Technical Surveyor and this clearly indicated that it was

not a case of total loss and the vehicle could have been repaired.  Therefore, the order of the

State Commission directing that the claim should be settled for an amount higher than that

assessed by the Surveyor i.e. Rs.2,28,000/- and also directing the Opposite Party/Insurance

Company to pay compensation of Rs.1,00,000/- and litigation costs of Rs.10,000/- was both

harsh and punitive particularly since the delay in settling the claim was attributable to the

Complainant who did not make available the necessary documents required to settle the

claim.  Further, the State Commission had not taken into account the depreciation to the vehicle

which had been used for several months prior to the accident.  In fact at the time of the accident

the value of the vehicle had rightly been assessed at Rs.1,48,578/- after deducting 50%

depreciation on the rubber and plastic parts and 40% on metal parts. 

8.      We have heard learned Counsels for both parties and have also gone through the evidence

on record.  The facts pertaining to the insurance of the vehicle, its meeting with an accident and

the extensive damage caused to it are not in dispute as clearly indicated in the report of the

Surveyor appointed by the Opposite Party/Insurance Company.  After having perused the survey

report, we are, however, not in agreement with the conclusion of the Surveyor that despite this

extensive damage the vehicle was repairable and that after deducting depreciation of 50% and

40% on rubber/plastic parts and metal parts respectively, the total net loss comes to

Rs.1,48,578/-.  From a perusal of the damages listed out by the Surveyor, we note that almost

every part of the vehicle was severely damaged, including the chassis, the engine and over 66

other important components of the vehicle.  Under the circumstances, it is difficult to appreciate

how the vehicle which has suffered such extensive damage could be repaired and made

roadworthy.  We are also unable to appreciate how the Surveyor has deducted 50% and 40% on

account of depreciation of rubber and metal parts respectively since the vehicle had been insured

just 9 months prior to the accident and at that time the Insured Declared Value of the vehicle was

Rs.3,80,000/-.  Once having insured the vehicle for this amount, such a high percentage of

depreciation is totally unjustified.  This issue has been squarely settled by a judgment of

the Hon’ble Supreme Court in Dharmendra Goel Vs. Oriental Insurance Company Limited

[(2008) 8 SCC 279], wherein it has been held that the Insurance Company after having accepted

the value of a particular vehicle could not disown that very figure on one pretext or other when

they are called upon to pay compensation.  This ‘take it or leave it’ attitude was clearly

unwarranted not only as being bad in law but ethically indefensible.  The Insurance Company

was bound by the value put on the vehicle while taking the insurance policy. 

9.      The above ruling is fully applicable in the present case.  The Insurance Company having

once accepted the market value of the vehicle at Rs.3,80,000/- at the time of insuring the vehicle

and since the vehicle had been used for only 9 months, at the most the depreciation of 10%

would have been reasonable and not the depreciation of 40% as ruled by the State Commission

based on the age of the vehicle.  Respectfully following the judgment of the Hon’ble Supreme

Court in Dharmendra Goel (supra) and keeping in view the facts of the case as discussed in the

foregoing paragraphs, we are of the view that the insurance claim should be settled for an

amount of Rs.3,42,000/- i.e. after deducting 10% towards depreciation from the insured sum of

Rs.3,80,000/-.  This amount should be paid with 9% per annum from the date of complaint i.e.

05.11.1997.  We are, however, of the view that compensation of Rs.1,00,000/- awarded by the

State Commission is on the higher side and reduce the same to Rs.50,000/-.  We also set aside

the order of the State Commission directing that the interest on the insured amount be recovered

from an officer of the Opposite Party/Insurance Company who delayed in settling the claim.

10.    To sum up, First Appeal No. 454 of 2007 filed by the Complainant is partly allowed and

the Opposite Party/Insurance Company is directed to pay him sum of

Rs.3,42,000/- alongwith interest @ 9% per annum from the date of the complaint i.e. 05.11.1997

as also compensation of Rs.50,000/- and litigation costs of Rs.10,000/- within a period of three

months from the date of receipt of copy of this order.  First Appeal No.550 of 2007 filed by the

Opposite Party/Insurance Company is dismissed.            No costs.

Sd/-

(ASHOK BHAN, J)

PRESIDENT

 

Sd/-

(VINEETA RAI)

MEMBER

 

Sd/-

                                                                                         (VINAY KUMAR)

MEMBER Mukesh                                    

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO.   1320 OF 2008 (From the order dated 02.11.2007 in Appeal No. 863/2001 of the State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad)

 

 Mrs. Laxmi Ramesh Sarda Partner in M/s. Zumberlal Sitaram Sarda, Sarda Lane, Ahmednagar

                   …Petitioner/Complainant       Versus

The Manager United India Insurance Co. Ltd. Divisional Office, Kisan Kranti Bldg., Market Yard, Ahmednagar

                            …Respondent/Opp. Party (OP)

 BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner      :      Mr. Jitendra Kumar, Advocate

 For the Respondent  :       Mr. S.K. Ray, Advocate

 

PRONOUNCED   ON     23 rd   September,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the petitioner/Complainant against the order dated

02.11.2007 passed by the State Consumer Disputes RedressalCommission, Mumbai, Circuit

Bench at Aurangabad (in short, ‘the State Commission’) in Appeal No. 863/2001

– Mrs. Laxmi Ramesh Sarda Vs. The Manager, United India Ins. Co. Ltd. by which, while

dismissing appeal, order of District Forum dismissing complaint was upheld. 

2.      Brief facts of the case are that complainant/petitioner purchased CIELO passenger car for

Rs.5,47,000/- on 15.6.1996.  Car was insured with the OP/respondent for a sum of Rs.5,00,000/-

for a period of one year commencing from 21.7.98 to 20.7.99.  On 15.7.1999, car met with an

accident and car was totally smashed and damaged and was a case of total loss.  Claim was

submitted to the OP and OP finally paid Rs.2,36,500/- by cheque dated 15.11.1999 which was

accepted by complainant under protest as Rs.2,36,500/- has been paid less.  Alleging deficiency

on the part of OP, complainant filed complaint before District Forum.  OP contested complaint

and submitted that amount of Rs.2,36,500/- was accepted by the complainant as full and final

satisfaction; hence, complaint is not maintainable.  It was further submitted that vehicle was

purchased in the year 1996 and its value could not have been Rs.5,00,000/- at the time of

issuance of policy.  It was further submitted that market price of the vehicle as per surveyor’s

report was Rs.2,35,000/- and Rs.2,36,500/- has already been paid; hence,    no deficiency on the

part of OP and prayed for dismissal of complaint. Learned District Forum after hearing both the

parties dismissed complaint against which, appeal filed by the petitioner was dismissed by

learned State Commission vide impugned order against which this revision petition has been

filed. 

3.      Heard learned Counsel for the parties and perused record. 

4.      Learned Counsel for the petitioner submitted that as it was a case of total loss, petitioner

was entitled to receive full value of the vehicle for which it was insured and learned State

Commission has committed error in dismissing appeal and leaned District Forum committed

error in dismissing complaint       on the basis of payment as full and final satisfaction; hence,

revision petition be allowed and impugned order be set aside.  On the other hand, learned

Counsel for the respondent submitted that order passed by learned State Commission is in

accordance with law; hence, revision petition be dismissed. 

5.      It is admitted case of the parties that vehicle was purchased on 15.6.1996 for Rs.5,47,000/-

and was insured for Rs.5,00,000/- on 21.7.1998. It is also admitted case that on account of

accident on 15.7.1999, car was totally smashed and damaged and it was the case of total loss.

Now, the question is whether; petitioner was entitled to receive Rs.5,00,000/-  the amount for

which vehicle was insured, or to get market price. 

6.      As far as payment of Rs.2,36,500/- as full and final settlement, perusal of record clearly

reveals that amount was accepted by the petitioner under protest without prejudice.  In such

circumstances, it cannot be said that petitioner received this amount as full and final satisfaction

and in such circumstances, complaint was maintainable.         

 

7.      As far as amount payable is concerned, as per insurance policy, vehicle was insured for

Rs.5,00,000/-, but as per Surveyor, G.S. Advani & Co. total repair cost was Rs.3,05,000/- and

market value  of the vehicle        was Rs.2,35,000/- including salvage of Rs.65,000/-.  As per The

Institute of Insurance Surveyors & Adjusters (Mumbai), Pune Unit, the market value of the

insured vehicle was around Rs.2,35,000/-. This opinion was given by 3-Member Committee after

inspecting the vehicle and enquiring market value of the vehicle from various sources and in

such circumstances, we assume that market value of the vehicle on the date of accident was

around Rs.2,35,000/-. 

8.      The short question to be decided is whether petitioner is entitled to receive insured value or

market value.    

9.      Learned Counsel for the petitioner placed reliance on judgement dated 3.9.2013 in R.P. No.

4279 of 2012 – Dr.   Vir   Singh Malik  Vs. The Oriental Insurance Co. Ltd. in which it was held

that insured is entitled to receive compensation on the basis of value shown in insurance policy

after deducting some depreciation.  On the other hand, learned Counsel for the respondent placed

reliance on II (1992) CPJ 484 (NC) – Oriental Insurance Co. Ltd. Vs. Suresh Arjun   Karande  in

which it was held that as per Condition No. 4 of the insurance policy, insured is entitled to

receive value specified in the policy or value of the vehicle at the time of damage, whichever is

less.  Condition No. 4 of the insurance policy runs as under:“4.     The  company may at its own option repair, reinstate or replace the

motor vehicle 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 the actual value of the parts damaged or loss less depreciation for

the reasonable cost of fitting and shall in no case exceed the insured

estimate of the value of the motor vehicle (including accessories thereon)

specified in the schedule or value of the motor vehicle (including

accessories thereon) at the time of the loss or damage whichever is less.

 

This condition makes it clear that in case of total damage to the insured vehicle, insured is

entitled to receive insured value of the vehicle or value of the motor vehicle at the time of

loss whichever is less.  

10.    This Commission in II (1992) CPJ 484 (NC) – Oriental Insurance Co. Ltd.

Vs. Suresh   Arjun   Karande  has held that the State Commission was not right in awarding to the

complainant the full amount mentioned in the policy and further held that surveyors should

submit their separate and independent reports to the General Insurance Corporation and ascertain

market value of the vehicle.  In the present case, as per surveyor G.S. Advani & Co. report, total

cost of the repairs of the vehicle was Rs.3,05,000/- and market value of the vehicle was

Rs.2,35,000/-.  As per report of The Institute of Insurance Surveyors & Adjusters (Mumbai),

Pune Unit, market value of damaged vehicle was Rs.2,35,000/- and salvage value of the vehicle

was Rs.65,000/-.  This report was given by the Committee of 3-independent surveyors after

inspecting the vehicle and inquiry from market.  In such circumstances, it can be presumed that

value of the vehicle was around Rs.2,35,000/- and as per Condition No.4 of the insurance policy,

petitioner was entitled only to receive Rs.2,35,000/-.  In our judgment inDr.   Vir   Singh

Malik Vs. The Oriental   Insurance Co. Ltd . (Supra) case insured amount was allowed after

depreciation because neither such condition was brought to our notice, nor report of independent

surveyor regarding value of vehicle was placed.

 

11.    In such circumstances, petitioner is not entitled to receive remaining

Rs.2,63,500/-.  Learned State Commission has not committed any error in dismissing appeal and

upholding order of District forum dismissing complaint, though on other grounds.

 

12.    Consequently, revision petition filed by the petitioner is dismissed with no order as to

costs. 

………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2339 OF 2012(From the order dated 5.3.2012 in Appeal No.216/2011 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

 

New India Assurance Company Limited Regional Office 1 Jeevan Bharati, 124 Connaught Circus New Delhi – 110001

… Petitioner

                                                 Versus

1. M/s L.B. Patil & Bros. Cotton Merchants, APMC Ranebennur-581115 District Haveri, Represented by its Managing Partner Linganagouda Basanagouda Patil Karnataka 

2.  National Insurance Co. Ltd. Unit 602508, Ist Floor, Pune – Bangalore Road Near Bus Stand, Haveri 581110 Karnataka

..  Respondents

 BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

For the Petitioner                  : Mr. Salil Paul, Advocate

For the Respondent-1         : Mr. Rajesh Mahale, Advocate

For the Respondent-2         : Mr. Ravi Bakshi, Advocate

Dated :     24 th   September, 2013

                                                               ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision is directed against the order of the State Commission dated 05.03.2012

whereby the State Commission dismissed the appeal of the petitioner / OP against the order of

the District Forum allowing the complaint of OPNo.1 in following terms:

          “The complaint is allowed.

          OP No.1 is directed to pay Rs.19,00,000/- ( Nineteen Lakh) to complainant with interest @ 8% per annum from the date of complaint till realization.  OP No.1 should also pay compensation at Rs.10,000/- ( Ten Thousand) and cost of this complaint at Rs.5000/- to the complainant. 

          The complaint against OP No.2 is  hereby dismissed.  No cost”.

2.         One of the plea raised on behalf of petitioner / OP No.1 before the fora below was that

the complaint itself was not maintainable because the respondent no.1 had settled the claim by

receiving a sum of Rs.38,98,903/- in full and final settlement of the claim.  Though both

the fora below came to the conclusion that respondent / complainant had actually received a sum

of Rs.38,98,903/- from OP No.1 and executed the settlement voucher in full and final discharge

of claim, they rejected the plea of the petitioner / OP No.1 on the premise that full and final

settlement voucher was executed by the complainant / respondent no.1 under duress because of

financial constraints. 

3.         Shri Salil Paul, Advocate, learned counsel for the petitioner has contended that the orders

of the fora below are not sustainable as those are based on incorrect appreciation of the law laid

down by the Supreme Court in the matter of United India Insurance Vs. Ajmer Singh Cotton &

General Mills & Ors. II (1999) CPJ 10 (SC) and the facts of the case.  Learned counsel submitted

that the fora below have failed to appreciate that there was no coercion or undue pressure on the

complainant / respondent no. 1and he voluntarily settled his claim by receiving the above noted

sum and full and final discharge of his insurance claim.  In support of this contention, learned

counsel for the petitioner has taken us through relevant documentary evidence on record.

4.         Learned counsel for respondent no.1 on the contrary has argued in support of the

impugned order.  He has contended that fora below have rightly appreciated the facts and

concluded that the discharge voucher was signed by respondent no.1 under duress because of

financial crisis.  Expanding on the argument, learned counsel for respondent no.1 has stated that

claim of respondent no.1 was for Rs.1,10,000/-.  Therefore, it is unimaginable that he would

have accepted a sum of Rs.38,98,903/- in full and final settlement against the said claim unless

there was some pressure on the respondent.

5.         We have considered the rival submissions and perused the material on record.  Execution

of the full and final settlement voucher as also the receipt of sum of Rs.38,98,903/- is not denied

by respondent no.1.  Thus only question for determination is whether the settlement voucher was

signed by the complainant / respondent voluntarily or due to coercion and duress.  In order to

find answer to this question, it is necessary to have a look on relevant dates and documents.

6.         As per the allegations in the complaint, fire accident resulting in loss of goods took place

on 05.01.2008 at about 3.30 p.m. Perusal of the copy of the surveyor report of

M/s SrivatsanSurveyors Private Limited reveals that surveyor visited the premises of the

respondent on 11.01.2008 and subsequent dates and the Surveyor Report was prepared on

12.05.2008, assessing the net loss payable by the petitioner / insurance company to the

respondent / complainant at Rs.38,98,903/-.  Petitioner has placed on record true copy of letter of

respondent no.1 dated 13.03.2008 addressed to the Divisional Manager of petitioner /

company alongwith its translated copy, which reads thus:

“Sir,

            With reference to the fire damage loss to the stock of cotton, I wish to inform you that today I have explained in detail about the loss.  Again your surveyor after calculating has also explained in detail.  Further on the date of fire, after taking into account all the stock, your surveyor has assessed the insurance claim as Rs.39,00,000/- to Rs.40,00,000/- approximately ( Rupees Thirty Nine Lakhs to Forty Lakhs ) and has informed me accordingly. As there is financial difficulty, I am agreeing voluntarily for the said compensation.  I am agreeable to accept the above amount subject to the condition that this amount is

exclusive of Rs.25000/-, which I am getting from other Insurance Company and without deduction of salvage amount”.

 

7.         On reading of the above, it is clear that complainant himself offered to accept the amount

of loss assessed by the surveyor on the basis of stock position in settlement of his insurance

claim.  No doubt  respondent / complainant in its letter has written that because of financial

difficulty he was voluntarily agreeable to accept the aforesaid amount as compensation but in my

view, this cannot be taken as a circumstance to conclude that the respondent / complainant was

subjected to coercion or undue pressure for settling his claim.  Further, we may note that

petitioner has placed on record photocopy of fire claim form submitted by the respondent /

complainant under the signatures of its partner which indicate that at some stage, the respondent /

complainant had filed his claim for Rs.40,00,000/- against  which admittedly the petitioner has

received a sum of Rs.38,98,903/- as full and final settlement, which as per the survey report is

the actual loss suffered by the respondent / complainant due to fire accident.

8.         The cumulative effect of above noted circumstances clearly is that this is a case of

voluntarily settlement of insurance claim on the part of the complainant / respondent.  This

conclusion is further fortified by the fact that fire accident took place on 05.01.2008.  The

surveyor visited the premises of the petitioner on 11.01.2008 and submitted his final report on

23.10.2008 i.e. within ten months of the date of loss which rules out possibility of any pressure

or coercion having been exercised by the petitioner on the respondent to settle the matter.  Not

only this, the complaint was filed by the complainant sometimes in June 2010 i.e. after a lapse of

more than 1 ½ years from the date of signing of settlement voucher.  Had this been a case of

coercion, the complainant / respondent was expected to take immediate steps for filing a

consumer complaint which is not the case.  Therefore also, we find it difficult to hold that the

settlement voucher was not voluntary. 

 

9.         In view of the discussion above, I am of the opinion that both the fora below have failed

to appreciate the evidence in correct perspective and they committed a grave error in holding that

complainant / respondent has signed the settlement voucher under duress or pressure.  Thus, the

impugned orders  suffers from material irregularity and cannot be sustained.  Revision petition is,

therefore accepted and orders of the fora below are set aside and complaint is dismissed with no

order as to costs.

…………………..………..

     (AJIT BHARIHOKE, J.)

      PRESIDING MEMBERAm

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO.   75-76 OF 2013 (From the order dated 08.11.2012 in Appeal No. FA/12/95 & FA/12/98 of the Chhattisgarh State Consumer Disputes Redressal Commission, Pandri, Raipur)

 

Alok Waghe S/o Shri S.D. Waghe R/o LIG, Tatibandh, Raipur, Ditrict Raipur (C.G.)                                                                    …Petitioner/Complainant       

          VersusBajaj Allianz General Insurance Co. Ltd. Through: Branch Manager, Shimangal Bhawan, Pandri Raipur, District Raipur (C.G.)

                                                               …Respondent/Opp. Party (OP)

 BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner      :      Mr. R.K. Bhawnani, Advocate

PRONOUNCED   ON     25 th   September,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

Both these revisions arise out of judgement dated 8.11.2012 in appeals filed against

judgement of the District Forum.  Accordingly, the revisions were heard together and are being

disposed of by common order.

These revision petitions have been filed by the petitioners/Complainants against the order

dated 08.11.2012 passed by the Chhattisgarh State Consumer Disputes Redressal Commission,

Raipur (in short, ‘the State Commission’) in Appeal No. FA/12/95  – Alok Waghe Vs. Bajaj

Allianz Gen. Ins. Co. Ltd. and in Appeal No. FA/12/98 – Bajaj Allianz General Ins. Co. Ltd.

Vs. Alok Waghe by which, while dismissing appeal of the complainant, appeal of OP was

allowed and order of District Forum allowing complaint was set aside and complaint dismissed.

2.      Brief facts of the case are that complainant/petitioner owner of vehicle C.G.04/G-4139 got

his vehicle insured from OP/respondent for a period of one year commencing from 5.9.2008 to

4.9.2009.  Vehicle met with an accident on 16.12.2008 and report was lodged with the Police and

intimation was given to OP-Insurance Co.  Claim was lodged with the OP, but claim was

repudiated.  Alleging deficiency on the part of OP, complainant filed complaint before District

Forum. OP resisted complaint and submitted that driver of the vehicle was not holding valid

driving licence at the time of accident which amounted to violation of terms of insurance policy;

hence, claim was repudiated rightly and prayed for dismissal of complaint.  Learned District

forum after hearing both the parties allowed complaint and directed OP to pay 75% of the IDV

value i.e. Rs.2,85,000/- on non-standard basis.  Both the parties filed appeal before State

Commission and appeal filed by the complainant was dismissed but appeal filed by OP was

allowed and complaint was dismissed by impugned order against which, these revision petitions

have been filed.

3.      Heard learned Counsel for the parties and perused record.

4.      Learned Counsel for the petitioner submitted that driver of the vehicle was not disqualified

from driving the vehicle at the time of accident and merely because licence was not renewed on

the date of accident, petitioner was not disentitled to get claim on non-standard basis and learned

District Forum rightly allowed the claim but learned State Commission has committed error in

allowing appeal and dismissing complaint; hence, revision petition be allowed and impugned

order be set aside.  On the other hand, learned Counsel for the respondent submitted that order

passed by learned State Commission is in accordance with law; hence, revision petition be

dismissed.

5.      It is admitted case of the parties that on the date of accident, vehicle was insured with the

respondent. It is also not disputed that driver of the vehicle at the time of accident was not

possessing valid driving licence, as his licence had validity upto 16.8.2007 and later on it was

renewed on 8.5.2009.  Licence of the driver was not got renewed for the period from 17.8.2007

to 7.5.2009, whereas accident occurred on 16.12.2008. Thus, it becomes clear that on the date of

accident, driver was not possessing valid driving licence.

6.      Learned Counsel for the petitioner submitted that though licence was not renewed on the

date of accident but as driver of the vehicle was not disqualified from driving petitioner was

entitled to get compensation on non-standard basis.  He placed his reliance on (2010) 4 SCC 536

– Amalendu   Sahoo  Vs. Oriental Insurance Co. Ltd. Perusal of aforesaid citation clearly reveals

that in that case one of the employees of the tenant of the complainant approached the

complainant to handover the aforesaid vehicle for few hours for urgent use and no rent was

charged by the complainant from the tenant for the use of vehicle. The vehicle met with an

accident and in such circumstances, 75% claim was allowed on non-standard basis. This citation

does not help to the cause of the petitioner because driver was not holding valid driving licence

at the time of accident.  In III (2008) CPJ 191 (NC) United India Ins. Co. Ltd. Vs. Arvind Kumar

and III (2010) CPJ 256 (NC), National Insurance Co. Ltd. Vs. Sansar Chand, this Commission

held that if driver of the vehicle was not possessing valid driving licence to drive that particular

type of vehicle at the time of accident, Insurance Company is not liable to reimburse damages to

the vehicle.

7.      In the light of aforesaid judgements it becomes clear that when the drivers licence was not

valid and was not renewed at the time of accident, petitioner is not entitled to 75% of the claim

on non-standard basis and respondent has not committed any error in repudiating claim.

8.      We do not find any illegality, irregularity or jurisdictional error in the impugned order and

revision petitions are liable to be dismissed.

9.      Consequently, revision petitions filed by the petitioners are dismissed with no order as to

costs.    ………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 2547 of 2013(From the order dated 28.08.2012 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh in First Appeal no. 1332/2007)WithIA nos. 4269, 4270 & 4271 (Stay, exemption from dim documents, condonation of delay) 

Bajaj Allianz Life Insurance Co. Ltd. Through Branch Manager SCO no. 3, Balaji Chambers District Shopping Complex Ranjit Avenue, Amritsar

Petitioner  Versus 1.     Shri Pawan Kumar Son of late Shri Ved Prakas H No. 2155, Sarai Bhagwan dass Gali No. 1, Chawal Mandi Amritsar

 2.     Shri Bhupinder Bawa Son of Late Shri Bawa Amar Nath 10 – B/s Prakash Cinema Opposite Railway Station Amritsar

Respondents  BEFORE:

          HON’BLE MR JUSTICE V B GUPTA             PRESIDING MEMBER          HON’BLE MRS REKHA GUPTA                     MEMBER 

For the Petitioner                         Mr Pankul Nagpal, Advocate  Pronounced on       4 th   October     2013

ORDER REKHA GUPTA

                Revision petition no. 2547 of 2013 has been filed under section 21 (b) against the order

dated 28.08.2012 passed by the Punjab State Consumer Disputes Redressal Commission,

Chandigarh (‘the State Commission’) in appeal no. 1332 of 2007.

        The respondent no. 1/complainant has filed a complaint alleging therein that he had

purchased a life insurance policy for a sum of Rs.4,00,000/- by paying premium of Rs.10,000/-

per annum from the petitioner/ opposite party no. 1 through respondent no. 2/ opposite party no.

2, the authorised agent of petitioner on 11.10.2004. That the above said policy bearing no.

0005870798 was in the name of Smt AnitaKumari, mother of respondent no.

1. Smt Anita Kumari died on 04.04.2005 due to heart attack and an insurance claim was lodged

with the petitioner through opposite party no. 2 along with the original policy. But this claim was

repudiated by the petitioner on 27.09.2005. Alleging deficiency in service respondent has prayed

for a direction to the petitioner to pay an amount of Rs.4,00,000/- along with interest and

Rs.50,000/- as compensation.

        On notice, the petitioner and respondent no. 2 appeared and filed separate written versions.

        Petitioner/ opposite party no. 1 in its written version has submitted that complaint is not

maintainable in the present forum as the deceased had played a fraud on the petitioner by filing a

fake driving licence regarding her age proof in which the age was understated. Petitioner further

submitted that at the time of the policy, the deceased had intentionally submitted a faked driving

licence to escape the full medical examination. As per the terms of the policy, if the age of the

policy holder is more than 45 years and the sum assured is also more than Rs.3,00,000/- a full

medical examination becomes necessary. Petitioner has alleged that after verification it has come

to their notice that age of the deceased was shown on the ration card as 45 years and this ration

card was issued five years back. Therefore, at the time of taking the policy the age of the

deceased was more than 48 years. Deceased policy holder had four children as per the ration card

and their estimated age as on the proposal dates were 25 years, 23 years, 21 years and 19 years,

whereas age of one child was shown in the proposal form as 17 years.

        It is further submitted that age of the nominee has been shown as 17 years in the proposal

form by recording his date of birth as 06.02.1987, whereas as per the PAN card the date of birth

of this nominee is 06.09.1982 and he is 22 years old. Petitioner has submitted that if any contract

is executed by misrepresenting the true facts and by fraud such contract is void abnitio. The

policy was obtained by fraud and misrepresentation by submitting the fake driving licence and

understating his age and age of the family members. It is further submitted that as per the

agreement in case of non-disclosure of information or fraud or misrepresentation in the proposal/

personal statement, declaration or in any connected document leading to the acceptance of the

risk, the company shall at its discretion, repudiate the claim under section 45 of the Insurance

Act.

        The petitioner has further alleged that policy holder intentionally submitted the fake driving

licence regarding her age proof. The alleged driving licence does not exist in the record of the

licensing authority, Ajnala. After receiving intimation regarding the death of the policy holder,

petitioner appointed Sniffers Indian Pvt. Ltd., to investigate the death claim of

late Smt Anita Kumari on 28.05.2005 and also Shri M L Bhatia to investigate the death claim of

late Smt Anita Kumari on 11.07.2005. Petitioner had also written a letter to licensing

authority,Ajnala regarding verification of the driving license issued in the name of Mrs

Anita Kumari. The licensing authority has written in that letter that license no. 16097 dated

16.10.1991 in the name of Anita Kumari wife of Ved Prakash has not been recorded in the office

record and this licence is fake and bogus as per the record. During investigation, the investigators

have collected copy of the ration card, which was issued five years back and in which the age of

the deceased is mentioned as 45 years.

        Petitioner has further submitted that if ration card is considered then the age at the time of

death of the insured comes to 50 years. As per the norms of the policy, full medical examination

was mandatory. As such company has rightly repudiated the claim. It was prayed that complaint

may be dismissed.

        Respondent no. 2 i.e., Mr Bhupinder Bawa had admitted the contents of the complaint. He

also admitted that claim was lodged with petitioner through respondent no. 2 and the original

policy and the original death certificate was submitted to petitioner at the time of intimation of

death. He has further submitted that the job of respondent no. 2 was only to sell the policy and

respondent no. 2 sold the policy and premium of Rs.10,000/- was deposited with petitioner and

he handed over the receipt of the premium issued by petitioner to the insured. He prayed that his

name may be deleted.

        The District Consumer Disputes Redressal Forum, Amritsar (“the District Forum”) came to

the following conclusions:

“The above discussion shows that proposal from exhibit R – 3 on the basis of which

insurance policy was issued is a document which is replete with cuttings and erroneous

information and where the date of birth of the nominee as well as the figure of sum

assured have been altered by overwriting. Similarly, the driving license

of Smt Anita Kumari has been found to be a fake and forged driving licence which does

not exists in the records of the concerned licensing authority, Ajnala. It has also been

noted by us that age of the nominee has been projected wrongly and qualification of the

deceased life assured was also given wrongly as matriculate.

The above discussion would show that complicated questions of facts and law are clearly

involved in the present complaint and there is also an element of forgery and fabrication,

as has already been discussed in the preceding paragraphs.

In view of the above discussions, present complaint is hereby dismissed with no order as

to costs. However, the parties are free to avail their remedies before the Civil Court of

competent jurisdiction, if they so choose”.

        Aggrieved by the order of the District Forum, the respondent no. 1 filed an appeal before

the State Commission. The State Commission were of the opinion that, “in view of the above

discussion, we are of the opinion that the complaint was liable to be succeed but has been

wrongly dismissed by the learned District Forum. The impugned order passed by the learned

District Forum, therefore, cannot sustain. We, accordingly, allow the appeal and set aside the

impugned order passed by the District Forum. The complaint, is consequently, allowed and the

OPs are directed to pay the amount of Rs.4.00 lakh to the complainant within 30 days from the

date of receipt of copy of this order, failing which, they would be liable to pay it along with

interest @ 9% per annum since 27.10.2005 (one month after the repudiation letter dated

27.09.2005) till the amount is actually paid to the complainant. The litigation cost is assessed at

Rs.5,000/-“.

        Hence, the present revision petition.

        Along with the present revision petition, the petitioner/ opposite party no. 1 have filed an

application for condonation of delay of 185 days, however, as per the office report, the delay is

of 187 days. The reasons given for the delay are as under:

         The petitioner has one of the branches at Amritsar and has its Head Office at Pune.

The Northern Zonal Office for handing Legal matter is situated at Chandigarh which

deals with the case of and files the cases before this Commission.

         The order dated 28.08.2012 passed by the State Commission was prepared on

04.10.2012 and was received by the Branch Office of petitioner Company in October

2012 by post.

         The order passed by the State Commission on receipt was thereafter forwarded to the

Head Office at Pune for taking an appropriate decision. However, the dealing assistant

Ms Debolina Ghatak raised certain queries for putting up the matter before the competent

authority of the company to take a final decision on whether the impugned order is to be

satisfied or further contested. Since the Advocate Mr Paras Money Goyal was not co-

operating the facts could not be ascertained. However, in the meantime, Ms Debolina also

left the services of the company on 26.12.2012.

         The fact that no final decision was taken on the impugned order dated 28.08.2012

passed by the State Commission was detected in last week of February 2013 and the

impugned order was put up before the Head (Legal) after obtaining the clarifications

initially sought for which was provided by Advocate Varun Chawla on inspection of case

records. The competent authority decided on 06.03.2013 that a revision is to be preferred

before this Hon’ble Commission.

         Thereafter entire case papers of the said case was procured from Chandigarh

Advocate Mr Paras Money Goyal on 01.04.2013 as the said advocate had stopped

working with the petitioner company and the entire file was sent to Shri Pankul Nagpal,

Advocate for preparation of grounds of revision.

         The said file was received by Shri Pankul Nagpal, Advocate on 02.04.2013 who

drafted the revision petition and sent the same to ShriRajinder Kalsi to comments and

approval.

         However, Shri Rajinder Kalsi, the local representative of the petitioner company in

the legal department, met with an accident on 06.04.2013 and was on leave till

26.04.2013.

         On joining his duties Shri Rajinder Kalsi immediately verified the pending matters

and vetted the draft revision petition and sent the same for approval to the Head Office at

Pune.

         The present revision petition was approved and sent to Shri Pankul Nagpal, Advocate

for filing on 07.06.2013.

         It is submitted that Shri Pankul Nagpal, Advocate due to the holidays in the court

from 05.06.2013 was on leave and was in Mumbai with his family to spend holidays.

         Shri Pankul Nagpal, Advocate joined work only on 28.06.2013, and immediately

prepared the present application seeking condonation of delay.

         The revision petition and the application had been received after signatures on

01.07.2013 and the same is being filed immediately.

We have heard the learned counsel for the petitioner and have also gone through the

records of the case carefully.

It will be seen from the reasons given above that the petitioner has dealt with the case

after receiving the order in a most casual and lackadaisical manner. The application does not

state that when the order was passed to the head office, Pune. After reaching the head office,

(date not mentioned) apparently the case was with the dealing assistant, till she left the service on

26.12.2012. It would also appear that there was no follow of such cases by any superior officer

because it was only in the last week of February 2013, that it was detected that the impugned

order was lying unattended without any action being taken thereon. Even after the competent

authority decided on 06.03.2013 that the revision petition had to be preferred before the State

Commission, the papers were obtained from the Chandigarh Advocate only on 01.04.2013 and

the revision petition was approved and sent to Shri Pankul Nagpal for filing thereafter on

07.06.2013. The petition was filed ultimately on 08.07.2013. It would appear that the petitioner

and their Advocates adopted a most casual approach.

The petitioner is supposed to explain the day-to-day delay, but the needful has not been

done. The petitioner has failed to provide ‘sufficient cause’ for the delay of 185/187 days. This

view is further supported by the following authorities.

The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that:

 

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”. 

 

In Balwant Singh Vs.  Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:  

                 

“The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”.

 

            In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;

 “It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to thecondonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.” 

In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed: 

“We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.” 

Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 185/187

days in filing the present revision petition. The application for condonation of delay is without

any merit as well as having no legal basis and is not maintainable. Consequently, the present

revision petition being time barred by limitation and is dismissed with cost of Rs.10,000/-

(Rupees ten thousand only).

Petitioner is directed to pay the cost of Rs.5,000/- to the respondent directly by way of

demand draft and the balance amount be deposited by way of demand draft in the name of

‘Consumer Legal Aid Account of this Commission’ within four weeks. In case the petitioner

fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @

9% per annum till realisation.

List on 22nd November 2013, for compliance.

Sd/-

..………………………………[ V B Gupta, J.]  Sd/-………………………………..[Rekha Gupta]Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

 REVISION PETITION NO.   3650 OF 2008

(From the order dated 1.08.2008 in Appeal No. 2848/2001(Hry)RBT/272/2008  of the State Consumer Disputes Redressal Commission, UT, Chandigarh)

  Hukum Chand S/o Sh. Shiv Lal R/o Village Dhana P.O. Salawas, Distt. Jhajjar, Haryana

                                           …Petitioner/Complainant       

Versus

United India Insurance Co. Ltd. Through its Regional Manager, Regional Office, Sec-17, Chandigarh

                                               …Respondent/Opp. Parties (OP) BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

 For the Petitioner        :    Mr. Rishi Malhotra, Advocate

For the Respondent    :     Mr. S.M. Tripathi, Advocate

 PRONOUNCED   ON     7 th   October,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the petitioner/Complainant against the order dated

1.8.2008 passed by the State Consumer Disputes Redressal Commission, U.T., Chandigarh (in

short, ‘the State Commission’) in Appeal No. 2848/2001(Hry)RBT/272/2008  – United India Ins.

Co. Ltd. Vs. Hukam Chand by which, while allowing appeal order of District Forum allowing

complaint was set aside. 

2.      Brief facts of the case are that complainant/petitioner was owner of

vehicle No. HR-14A/1023, which was insured with OP/respondent for a period of one year from

30.4.98 to 29.4.99. This vehicle was taken away by some persons on 15.6.1998 after

administering some poisonous substance in the drink to the driver as well as conductor of the

vehicle. Report was lodged with the Police on 17.6.1998 and intimation was also given to OP.

OP repudiated claim. Alleging deficiency on the part of OP, complainant filed complaint before

District Forum. OP resisted complaint and submitted that as vehicle was plied as taxi, whereas

vehicle was insured as private vehicle and, thus violated terms and conditions of the

policy,  OP rightly repudiated claim and prayed for dismissal of complaint.  Learned District

forum after hearing both the parties allowed complaint and directed OP to make payment of

insured estimated value along with 12% p.a. interest and further awarded Rs.5,000/- as cost of

litigation.  Appeal filed by the OP was allowed by the impugned order by the State Commission

against which this revision petition has been filed. 

3.      Heard learned Counsel for the parties and perused record. 

4.      Learned Counsel for the petitioner submitted that  inspite of violation complainant was

entitled to receive claim and learned District Forum rightly allowed complaint, but learned State

Commission committed error in dismissing complaint; hence, revision petition be allowed and

impugned order be set aside.  On the other hand, learned Counsel for the respondent submitted

that order passed by learned State Commission is in accordance with law; hence, revision

petition be dismissed. 

5.      Perusal of record clearly reveals that vehicle of the complainant was insured with OP as

private vehicle and during subsistence of insurance policy vehicle was stolen.  Perusal of FIR

further reveals that vehicle was used as taxi and thus, there was clear cut violation of the terms

and conditions of the policy.  Now, the question to be decided is whether complainant is entitled

to receive any compensation inspite of violation of terms and conditions of the policy. 

6.      Learned Counsel for the petitioner has placed reliance on (2008) 11 SCC 259 – National

Insurance Co. Ltd. Vs. Nitin   Khandelwal  in which Hon’ble Apex Court has held that in case of

theft of vehicle breach of condition is not germane. In that case also vehicle was insured for

personal use and it was being used by the complainant as taxi, even then, order of State

Commission allowing 75% claim on non-standard basis which was upheld by National

Commission was upheld by Hon’ble Apex Court.  Facts of the present case are similar as in this

case also vehicle was registered as private vehicle but was being used as taxi and it was stolen

during subsistence of insurance policy. In such circumstances, petitioner is entitled to 75% of the

IDV value on non-standard basis. 

7.      Learned Counsel for the respondent has placed reliance on judgement by this Commission

delivered on 4.7.2013 – Madan   Lal  Vs.Oriental Insurance Co. Ltd. in which complaint was

dismissed as private vehicle was being used as a taxi.  We do not agree with the view expressed

in aforesaid revision petition in the light of judgment of Hon’ble Apex Court

in Nitin   Khandelwal  (supra) case and revision petition is to be allowed and impugned order is

liable to be set aside. 

8.      Consequently, revision petition filed by the petitioner is allowed and impugned order dated

1.8.2008 passed by learned State Commission in Appeal No. 2848/2001(Hry)RBT/272/2008  –

United India Ins. Co. Ltd. Vs. Hukam Chand is set aside and order dated 21.5.2001 passed by

learned District forum in Complaint No.210 – Hukam Chand Vs. United India Ins. Co. Ltd. is

modified and respondent is directed to make payment of 75% of the IDV value of the vehicle on

non-standard basis along with 9% p.a. interest from the date of filing complaint till realization. 

 ………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

 REVISION PETITION NO.     4405 OF 2012

(From the order dated 24.08.2012 in Appeal No. 796/2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

With IA/5951/2013 Satbir Singh S/o Sh. Abey Ram R/o VPO Kharak Punia Tehsil & District Hissar, Haryana

                                                   …Petitioner/Complainant       

Versus1. Reliance General Insurance Company Through its Branch Manager 88-E, Model Town, Near Bhagwati Hotel, Hissar, Haryana 

2. The Regional Manager Reliance General Insurance Co. Ltd. SCO No. 212-214, Sector 34-A, Chandigarh

                                         …Respondents/Opp. Parties (OP)

 BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

 For the Petitioner          :  Mr. Akshay Verma, Advocate

                                      Mr. Abhinav Singh, Advocate

                                      Mr. Akashdeep Verma, Advocate

For the Respondents    :  Mr. Navneet Kumar, Advocate

 PRONOUNCED   ON     7 th   October,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the petitioner/complainant against the order dated

24.08.2012 passed by the Haryana State Consumer

Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No.

796/12 – Satbir Vs. Reliance General Ins. Co. & Anr. by which, while dismissing appeal of the

complainant, order of District forum allowing complaint was also set aside. 

2.      Brief facts of the case are that Complainant/petitioner got his Bolero HR-39-A-9361

insured from OP/respondent for a period of one year from 8.5.2009 to 7.5.2010. On 1.11.2009,

vehicle was snatched by some culprits and FIR was lodged and intimation was also given to

OP.  Claim was submitted to OP, but claim was repudiated by letter dated 2 8.5.2010. Alleging

deficiency on the part of OP, complainant filed complaint before District Forum.  OP/respondent

resisted complaint and submitted that vehicle was insured as private car but was used for hire and

reward at the time of accident and was constantly being used for commercial purposes. Claim

was rightly repudiated and prayed for dismissal of complaint.  Learned District Forum after

hearing both the parties allowed complaint on non-standard basis and directed OP to pay

Rs.3,07,500/- along with 7% p.a. interest Petitioner filed appeal before learned State

Commission for enhancement of compensation and learned State Commission vide impugned

order while dismissing appeal set aside order of District Forum and dismissed complaint against

which this revision petition has been filed.

 

3.      Heard learned Counsel for the parties and perused record. 

4.      Learned Counsel for the petitioner submitted that learned State Commission  has

committed error in dismissing complaint on the appeal filed by the complainant for enhancement

of compensation even without any cross appeal  from respondent; hence, revision petition be

allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent

submitted that State Commission had power to dismiss complaint even without cross appeal and

order passed by State Commission is in accordance with law; hence, revision petition be

dismissed. 

5.      Perusal of record reveals that learned District Forum allowed complaint partly and directed

OP to pay Rs.3,07,500/- whereas complainant claimed Rs.4,10,000/- in the complaint.

Aggrieved  by the order of District Forum complainant filed appeal before State Commission for

enhancement and learned State Commission vide impugned order while dismissing appeal, set

aside order of District Forum and dismissed complaint, though, no appeal was filed by

OP/respondent.

 

6.      Learned Counsel for the petitioner submitted that without any appeal or cross objections

State Commission had no power to dismiss complaint while dismissing appeal for enhancement

of compensation.  On the other hand, learned Counsel for the respondent submitted that as both

the parties were present before learned State Commission, learned State Commission had power

to dismiss complaint even without appeal on behalf of respondent.  In support of his contention

he has placed reliance on (2000) 3 SCC 607 – Dilip Vs. Mohd .   Azizul   Haq   & Anr . in which it

was held that during pendency of appeal, if any, amendment is made in the Rent Control Act and

protection is given to the tenant, the tenant is entitled to protection given by amendment.  This

judgment is not applicable to the facts of the present case as in that case appeal filed by the

tenant was pending before the Court and he was extended benefits on the basis of amendment in

Rent Control Act. On the other hand, in the case in hand, appeal was filed only by the

complainant for enhancement of compensation and no appeal was filed by OP for setting aside

order of District Forum.

 

7.      Learned Counsel for the respondent also placed reliance on (1999) 8 SCC 229 – Delhi

Electric Supply Undertaking Vs. Basanti Devi &   Anr . in which it was held that Appellate Court

may pass any order as the case may require.  In this case, Hon’ble Apex Court while exercising

powers under Article 142 of the Constitution granted relief to the complainant.  This citation is

also not applicable to the facts of the present case as State Commission had no power to exercise

powers conferred on Supreme Court under Article 142 of the Constitution. 

 

8.      Learned Counsel for the respondent could not place any citation depicting that once order

has been passed against the OP that can be set aside by the Appellate Court without preferring

appeal by the OP.

9.      After filing appeal for enhancement of compensation petitioner had every right to withdraw

the appeal or get it dismissed as not pressed and in such circumstances, State Commission had no

power to dismiss the complaint in appeal filed by the petitioner for enhancement of

compensation.

 

10.    Consequently, revision petition filed by the petitioner is allowed and impugned order dated

24.8.2012 passed by learned State Commission in Appeal No. 796 of 2012 – Satbir Singh Vs.

Reliance General Insurance Co. & Anr. is set aside and order of District Forum allowing

complaint partly is affirmed.  There shall be no order as to costs.

                                       ………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

  REVISION PETITION No. 3271 of 2013

(From the order dated 28.05.2013 of the Delhi State Consumer Disputes Redressal Commission, Delhi in First Appeal no. 76 of 2013)

Harish Kumar Chadha Resident of 5/6, Pant Nagar Jangupura Extension New Delhi – 110014                                            Petitioner

  Versus

 1.     The Manager M/s Bajaj Allianz Life Insurance Co. Ltd Unit no. 603, 6 th Floor, SG Mall, Plot no. 8 Commercial Complex, DC Chowk, Rohini New Delhi – 110085

2.     The Grievance Redressal Officer Bajaj Allianz Insurance Co. Ltd. GF Plaza, Ground Floor, Airport Road Yervada, Pune – 411066 (Maharashtra) 

3.     Mr Rahul Manchanda C/o Bajaj Allianz Life Insurance Co. Ltd. Unit no. 603, 6th Floor, SG Mall, Plot no. 8 Commercial Complex, DC Chowk, Rohini New Delhi – 110085

Respondents  BEFORE:

          HON’BLE MR JUSTICE V B GUPTA             PRESIDING MEMBER

          HON’BLE MRS REKHA GUPTA                    MEMBER

 

For the Petitioner                         IN PERSON  

Pronounced   on     7 th   October,     2013

ORDER REKHA GUPTA 

                Revision petition no. 3271 of 2013 has been filed under section 15 of the Consumer

Protection Act, 1986 against the order dated 28.05.2013 of the Delhi State Consumer

Disputes Redressal Commission, Delhi (‘the State Commission’) in First Appeal no. 76 of 2013.

        The brief facts of the case as per the petitioner/ complainant are that the petitioner/

complainant took three life insurance policies which were purchased from M/s Bajaj Allianz Life

Insurance Co. Ltd., having their office at that time at Pitampura, later on shifted to Rohini. The

policies were purchased in the name of his son Ankit Chadha, his wife Premlata Chadha. All the

three policies were sold by Mr RahulManchanda, the agent of M/s Bajaj Allianz Life Insurance

Company Ltd., from Pitampura.

        The purpose of purchasing the above said policies was for the higher education of his son,

who was studying in Hindu College at that time. Petitioner was assured by the agent

– Mr Rahul Manchanda, if the payment of the premium discontinues, the entire payment made

by the petitioner will be refunded along with the premium after three years in any case. No

Brochure or policy was issued by the agent at the time of registration.

        Thereafter, the petitioner suffered a heavy loss in his business and could not make the

payment of the second installment of the premium and the policies lapsed. The company had

shifted their office from Pitampura to Rohini, without giving any intimation, neither by phone

nor by mail. It was a heavy loss of Rs.60,00,000/- so it was not possible for the petitioner to

make the payment of remaining installments of premium.

        It was very difficult to find out the new office of the Company from Pitampura because

nobody was known to them. Finally, the petitioner got the address from some one of

their Rohini office and contacted the Manager of the company Mr Sharma and the petitioner

explained him the problem for the refund of the money, but he did not show any kind of

sympathy and told the petitioner to come after the maturity of the policies after three years.

        After three years, when the petitioner again visited the office of the Bajaj Allianz Life

Insurance Co. Ltd., at Rohini and met ShriSharma, Manager of the Company and again he

behaved rudely and informed me that he cannot have a refund of his money and the same has

been forfeited by the Company as per rules laid down in their policy. Petitioner was not told

anything of this kind of rules by Mr RahulManchanda, who has not contacted him after the

issuance of the policies. It was a case of cheating as well as fraud by way of misdeclarationof

hiding the facts.

        Thereafter, he wrote a letter to the Grievance Redressal Officer at their head office for

settlement of the dispute in Pune. The letter was written to the Grievance Redressal Officer on

14.05.2010 but nothing has been heard from him till date, as they had not responded to his letter

till date and it was an indication of bad intention of the company.

        When he did not get any reply from the office of Grievance Redressal Officer, he also made

a complaint to the office of the Life Insurance Ombudsman, Life Insurance

Building, 2/2A Asaf Ali Road, New Delhi – 110002. Thereafter a format was sent by them and

the same was sent after filling the same on the very same day on 09.08.2010, but he had not

heard anything from them also. Thereafter, he have decided to approach the District Consumer

Disputes Redressal Forum (V) (North West District), Shalimar Bagh for the refund of my

valuable money as Bajaj Allianz Life Insurance Co. Ltd., wanted to grab his valuable money by

way giving the reference of their untold policy.

        Petitioner has prayed that the respondent company may kindly be directed to pay the

principal amount of all three policies – Rs.95,000/-;

        Pay Rs.75,000/- as yearly premium on all the three policies to the petitioner;

        Pay Rs.50,000/- to the petitioner for the mental as well as physical harassment and causing

severe damage to the health of the petitioner.

        In their reply on behalf of the respondents/ opposite parties it has been denied that all the

three policies were sold to the petitioner by the same person, i.e., Rahul Manchanda. It was quite

evident from the documents of the policy that was issued by the respondent no. 1 that only one

policy no. 73116273 has been sourced by the above said person and the remaining two policies,

i.e., 0032083435 and 0039891782 have been sourced by Mr Varun Gupta who is an insurance

agent of the said insurance company therefore, the averment made by the petitioner is false,

wrong and has concocted a misleading storyline to eye wash the Forum.

        It was vehemently denied that the agent of the respondent assured the petitioner, that if the

payment of premium of the policy discontinues, the entire amount will be refunded along with

the premium after three years. The petitioner purchased three policies, i.e., policy no.

0039891782 dated 21.02.2007 for Rs.5,00,000/- in the name of Mr Ankit Chadha (son) of the

petitioner and the policy that was issued by the respondent no. 1 was a ‘Capital Unit Gain Size

One’ plan, policy no. 0073116273 dated 28.10.2007 for Rs.2,00,000/- again in the name

ofMr Ankit Chadha (son) of the petitioner and the policy that was issued was a (Unit Gain Plus

Gold) Policy, and the policy no. 0032083435 dated 05.12.2006 for Rs.2,50,000/- in the name

of Mrs Prem Lata Chadha (wife) of the petitioner and the policy that was issued was a (New Unit

Gain). It was further denied that no ‘brochure’ or ‘policy’ format was shown at the time of

registration. It was stated that every term and condition was thoroughly explained by the agent of

the opposite party to the petitioner and after accepting all those terms and conditions, the

petitioner filled the proposal form and deposited the proposal deposit amount. The plea of not

knowing the policy format or conditions was baseless and a concocted story, as before signing all

the documents the petitioner was explained each and every term of the policy. The proposal of

the petitioner was accepted as proposed and the policies were issued to him.  The original policy

bond containing terms and conditions of the insurance were duly received by the petitioner and

this fact of having received the policy bond has not been disputed by the petitioner. The

petitioner was given 15 days free look cancellation period from the date of receipt of the policy

body by the petitioner to review the terms and conditions of the contract as per the Policy

Holders’ Protection Regulation, 2002 and if he was dissatisfied with the said terms and

conditions of the policy, he would have given written notice to opposite parties to cancel the

policy within the said period of 15 days from the date of receipt of the policy bond. The

petitioner, however, being fully satisfied with the proposed plan and the terms and conditions of

the policy bond never approached the opposite parties to cancel the policy within 15 days free

look cancellation period and did not return the policy bond seeking refund of premium

permissible as per terms of the meaning there by that he was fully satisfied with the terms and

conditions of the policy and terms and conditions are deemed to be admitted on the part of the

petitioner and that the petitioner was fully satisfied with the policy conditions and has concocted

a false story just to mislead the Forum due to some ulterior motives to raise illegal financial

gains against the spirit of the contract of insurance and has filed a complaint after expiry of about

4 years from the commencement of the policy on vague and frivolous grounds. Moreover, there

is no cutting on the proposal form duly signed by the petitioner in English which proves that the

policy in question was issued as proposed by him.

        It was vehemently denied that the insurance agent named Mr Rahul Manchanda from M/s

Bajaj Allianz Life Insurance Company Ltd., put any extra efforts to convince the petitioner to

purchase the said policies by explaining his poor financial situation. All these averments are

false, wrong and concocted. The petitioner purchased all the three policies of his own free will

and by keeping in mind the future of his son and for his higher education as explained by the

petitioner himself in the complaint.

        On 05.12.2006 a proposal form was filed by petitioner for life insurance policy vide

proposal no. 0032083435. It is further submitted that petitioner opted for a New Unit Gain Plan

for a sum assured upto Rs.2,50,000/- by signing the said proposal form. The premium of

Rs.25,000/- was paid by the petitioner in lieu of the said policy on 05.12.2006 via cheque and

hence policy was issued. The policy was a New Unit Gain Policy with a fixed premium amount

of Rs.25,000/-. The premium was for 10 terms. The petitioner was given an option to withdraw

by way of partial or complete surrender of units after three years from the date of

commencement of the policy (provided premiums had been paid for all the three years).

        Another policy was purchased by the petitioner on 21.02.2007. A proposal form was filled

by petitioner for life insurance policy videproposal no. 0039891782. Petitioner opted for a

Capital Unit Gain Size One plan for a sum assured upto Rs.5,00,000/- by signing the said

proposal form. The premium of Rs.50,000/- was paid by the petitioner in lieu of the said policy

on 21.02.2007 via direct debit and hence policy was issued. The policy was a Capital Unit Gain

Size One policy with a fix premium amount of Rs.50,000/- annually the premium was for 20

terms. The petitioner was given an option to withdraw by way of partial or complete surrender of

units after three years from the date of commencement of the policy (provided premiums had

been paid for all the three years).

        A third policy was again purchased by the petitioner on 28.10.2007. A proposal form was

filled by the petitioner for life insurance policies vide proposal no. 0073116273. Petitioner opted

for a Unit Gain Plus Gold plan for a sum assured upto Rs. 2,00,000/- by signing the said proposal

form. The premium of Rs.20,000/- was paid by the petitioner in lieu of the said policy on

28.10.2007 and hence policy was issued. The policy was a Unit Gain Plus Gold policy with a

fixed premium amount of Rs.20,000/- annually. The premium was for 20 terms. The petitioner

was given an option to withdraw by way of partial or complete surrender of units after three

years from the date of commencement of the policy (provided premiums had been paid for all the

three years).

        The respondents denied that the office of the respondent no. 1 was shifted without giving

any intimation as to every customer a mail was issued and was also informed telephonically

about the change of office address from Pitampura to Rohini by the customer care executive

from the respondent no. 1 company.

        All the three policies that the petitioner opted for are different from each other in every

aspect and the said proposal, declaration along with the statement leading to the issuance of the

policies referred had been agreed to and accepted by the petitioner, as on the basis of the contract

the parties had entered into an agreement after considering all the terms of the policies. Further, a

free look period of 15 days was also given to the petitioner for cancellation of the policy. During

this period, the petitioner was at liberty to consult with anyone or scrutinize the policy contract

himself.

        The first policy which was purchased by the petitioner was a New Unit Gain Plan and it

commenced from 05.12.2006 and sum assured in the policy was Rs.2,50,000/- with a premium

amount of Rs.25,000/- and the premium term of the policy was 10. In this policy, i.e., (New Unit

Gain), if any regular premium is not paid before the expiry of grace period, after three policy

years, provided premiums for three full years have been paid, the policy shall be kept in force for

full sum assured including additional benefits by cancellation of units at the prevailing unit price

to recover all charges including charge for insurance covers. The policy will be terminated and

fund value would be paid to the policy holder as and when Fund Value becomes equal to the

amount of one annual premium.

        Similarly a second policy was purchased by the petitioner, i.e., 0039891782 on 21.02.2007

for a sum of Rs.5,00,000/- with a premium of Rs.50,000/- for the policy terms of 20.

        Policy Number – 0039891782 was issued based on the proposal form filled and signed by

the policy holder where the policy holder has opted for Capital Unit Gain Size only with a

regular mode and frequency selected as yearly, which was a market linked policy and the value

of the policy was dependent on the unit prices. As per the policy condition the surrender value, if

any, is payable only after first three policy years and non-payment of premium will be processed

as per the clause mentioned below.

        If the unpaid regular premium was due during the first three policy years and the policy

holder failed to make the payment before the expiry of the aforesaid grace period:

(i)                  The policy shall immediately lapse along with all insurance covers.

(ii)                 The policy holder may revive the policy within a revival period of two years

from the due date of first unpaid regular premium subject always to revival

conditions, failing which the contract shall be terminated and 100% of the value

of accumulation units in respect of regular premiums as on date of lapse, and the

top up premium fund value, if any shall be paid at the end of the third policy year

or at the expiry of the revival period, which is ever is later.

(iii)                If policy is lapsed and the death of the life assured happens, the existing fund

value would be paid and the policy will terminate immediately.

Thereafter, another policy was purchased by the petitioner with policy no. 0073116273

on 28.10.2007. The policy holder was assured for a sum of Rs.2,00,000/- with a regular premium

of Rs.20,000/- annually. The policy was (Unit Gain Plus Gold) where in case the policy holder

has failed to pay the regular premium the policy shall lapse along with all the insurance cover.

However, the fund will continue to participate in the market. The policy holder shall have an

option to review the policy within the revival period of two years on failing to do so the policy

shall be foreclosed. If regular premiums due during the first three policy years had not been paid,

surrender value, if any, was payable only after the expiry of the revival period or at the end of the

third policy year, whichever was later. The surrender charges applicable incase the regular

premium had not been paid within the grace period in the first three policy years, would be 60%

of the first years’ Annualized premium.

        The District Consumer Disputes Redressal Forum (V) (North West District),

Shalimar Bagh, Delhi (‘the District Forum’) vide their order dated 06.11.2012 has observed that

“a perusal of the record shows that the policies purchased by the petitioner had lapsed due to

non-payment of the yearly premium. The respondent has explained that as per the terms and

conditions of the policy the amount payable has already been refunded to the petitioner. The

petitioner on his part has not denied that the respondent had acted in accordance with the terms

and conditions of the policies purchased by the petitioner.

        In the case of United India Insurance Company Ltd., vs Harchand Rai Chandan Lal,

the Hon’ble Supreme Court has held that the terms and conditions of the contract entered into

between the parties have to be strictly construed and no deviation can be made there from. In

view of this we hold that there are no merits in the complaint. The same is accordingly

dismissed”.

        Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State

Commission. The State Commission vide order dated 28.05.2013, while dismissing the

appeal in limini, noted that the appellant/ complainant has no case at all, “the duty of the courts

towards an agreement is to ensure that the parties to an agreement abide by the terms and

condition of the contact between them. A perusal of the terms and conditions of each policy

unravels that the OP strictly adhered to, and acted in accordance with the terms and conditions

of the policies as held by the trial Forum above. The OP cannot therefore be faulted on this

court. The two earlier policies lapsed due to non-payment of the yearly premiums and there

remained nothing to be paid towards these two policies and whatever was due for the third

policy, was paid through a cheque by the OP to the petitioner”.

        Hence, the present revision petition.

We have heard the petitioner in person and have gone through the records of the case

carefully.

        In the revision petition no cogent grounds have been given to show that the State

Commission has exercised a jurisdiction not vested in it by law or has failed to exercise a

jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material

irregularity. Further, his prayer in the revision petition is the same as his prayer in the complaint

except that he has prayed for a further amount of Rs.5,00,000/- due to loss of income of his son

because he could not enter any higher education due to lack of funds. He has not prayed for

setting aside the order of the State Commission.

        He has admitted that he had taken three policies and due to problems in his business he

could not pay the second premium for all the three policies. He, however, stated that he had been

advised by the agent that if the payment of premium discontinued, the entire payment made by

him will be refunded along with the premium after three years in any case. He could not support

this statement with any evidence. It is also an admitted fact that the policies with the terms and

conditions were received by him.  He had been given a 15 days free look cancellation period

from the date of receipt of policy bond to review the terms and conditions of the contract and

return the same if he was dissatisfied. He has admitted that he failed to pay the second

installment of the premium of the three policies due to heavy loss of his business. He was also

aware of the terms and conditions of the policy which had been issued to him. He was also

issued with the premium reminders, as per the reminders placed on record at pages 49 & 50.

        In view of the above, we find that there is no jurisdictional error, illegality or infirmity in

the order passed by the State Commission as also the District Forum warranting our interference.

The revision petition is accordingly dismissed with cost of Rs.5,000/- (Rupees five thousand

only).

Petitioner is directed to deposit the cost of Rs.5,000/- by way of demand draft in the name

of ‘Consumer Legal Aid Account’ of this Commission, within four weeks. In case the petitioner

fails to deposit the said amount within the prescribed period, then it shall be liable to pay interest

@ 9% per annum till its realization.

List on 22nd November 2013  for compliance.

Sd/-

..………………………………[ V B Gupta, J.]  Sd/-………………………………..[Rekha Gupta]Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

  REVISION PETITION No. 3869 of 2008

(From the order dated 09.06.2008 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in Appeal no. 661 of 2008)

 

Life Insurance Corporation of India Branch Manager Naidupetta Branch Nellore DistrictThrough Assistant Secretary Northern Zonal Office Jeevan Bharti, Cannaught Circus New Delhi

Petitioner  Versus

 N Shanker Reddy Son of Late Sarasamma Resident Malakalapudi Village Chittamuru Mandal District Nellore, Andhra Pradesh

Respondent

  BEFORE:

           HON’BLE MR JUSTICE V B GUPTA             PRESIDING MEMBER

          HON’BLE MRS REKHA GUPTA                                                 MEMBER

 For the Petitioner                 Mr Ashok Kashyap, Advocate

For the Respondent              Mrs R Radha, Advocate

 Pronounced on       10 th   October 2013  

ORDER 

REKHA GUPTA 

            Revision petition no. 3869 of 2008 has been filed under section 21 (b) Consumer

Protection Act, 1986 by the petitioner/ Opposite party against the order dated 09.06.2008 in

Appeal no. 661 of 2008 passed by the Andhra Pradesh State Consumer

Disputes Redressal Commission, Hyderabad (‘the State Commission’).

        The brief facts of the case as per the respondent/ complainant are that the respondent is the

son of a policy holder N Sarasamma. The said Sarasamma took two policies bearing no.

650696766 and 840116947 with accident benefits. Subsequently she died on 05.04.2003 by

accidental slip from upstairs.

        Respondent submitted a claim form to the LIC herein, requesting to pay the accident benefit

also. Instead of settling the claim under accident benefit, the LIC settled the claim only for the

policy amount and paid Rs.14,510/- vide cheque dated 17.06.2003 for policy no. 840116947 and

Rs.75,640/- vide cheque dated 27.06.2003 for policy no. 650696766.

        Admittedly it was an accidental death as per the statements recorded by the sarpanch,

village Secretary and Mandal Revenue Officer,Chittamur. As it was an accidental death, LIC was

liable to pay another sum of Rs.14,510/- and Rs.75,640/- under the above said two policies

which was an accidental benefit as per the terms of the policy. But the respondent failed to do so.

Thus, there was a clear deficiency of service on the part of the LIC in not settling the claim under

the accident benefit scheme though it was confirmed that it was an accidental death. Hence, this

complaint.

        Respondent/ complainant has prayed before this Commission to direct the LIC to settle the

claim under the accident benefit scheme in the policies referred to above, i.e., to pay Rs.14,510/-

and Rs.75,640/- along with interest from the date of the claim; grant cost of this complaint; to

pay damages of Rs.10,000/- to the respondent; and grant such other and further reliefs.

        In the counter filed by the petitioner/ opposite party  (LIC), they have admitted that it was

true that two policies were issued on the life of N Sarasamma with policy no. 650696766 and

840116947 for sum assured of Rs.40,000/- and Rs.10,000/- with date of commencement of risk

as 11.09.1990 and 28.07.1996 respectively. Both the policies were issued with accidental benefit

facility.

        As per the conditions and privileges of the policy bond, condition no. 10-2 under the

caption “Accident Benefit” an additional sum equal to the sum assured would be paid if the life

assured should sustain bodily injuries resulting solely and directly from the accident which result

into the death of the life assured and the same was proved to the satisfaction of the corporation.

        To prove the death by accident, either police report or hospital records confirming the

death as accidental were to be produced. In this case, no such reports were submitted. A copy of

the statement of some of the villagers of the deceased life assured which were signed by

thepanchayat Secretary and Mandal Revenue Officer from the alleged records of

MRO, Chittamur vide LD NO. 413/ 2003 dated 06.04.2003 only was produced. But

MRO Chittamur vide letter RCA 148/2004 dated 02.04.2004, in reply to the Senior Divisional

Manager, United India Insurance Co. Ltd., Nellore LD NO. 413/ 2003 has dealt with the

correspondence of the fire accident subject related to Mettu village and honorarium paid in

favour of Shri SK Ramthu Sahab son of Khader Saheb of Mettu village but it does not relate the

alleged accidental death of N Sarasamma of Molakalapudi village. Hence, the accidental death

has not been proved to the satisfactory of the insurer.

        Hence, nothing was payable towards accident claim. No costs, no damages as further reliefs

were payable as accidental death was not properly established. Hence, the CD should be

dismissed with heavy costs.

        District Consumer Disputes Redressal Commission, Nellore, (“the District Forum’) vide order dated 07.03.2008 while holding that “it is not in dispute that the respondent/ complainant’s mother N Sarasamma obtained two policies with accidental benefits. As per exhibit A 4 the deceased life assured N Sarasamma died in an accident while the policy was inforce. The nominee is also entitled the accidental benefits. It is also not in dispute that the respondent/ complainant is a nominee for the said two policies. So under these circumstances, the opposite party – LIC only paid Rs.75,640/- and Rs.14,510/- under two policies. But the opposite party did

not pay the accidental benefits under two policies. So non-payment of the accidental benefits to the nominee who is the complainant/ respondent herein amounts to the deficiency of service on the part of the opposite party. So the affidavit of the complainant coupled with Ex A1 to Ex A6 clearly established the guilt of deficiency of service on the part of the opposite party. The complainant established the deficiency of service on the part of the opposite party. Accordingly, this point is answered in favour of the complainant against the opposite party.

        The District Forum ordered that the complaint is partly allowed with cost of Rs.2,000/- and directing the opposite party to pay an amounts of Rs.14,510/- and Rs.75,640/- under the two policies to the complainant together with interest per annum on 14,510/- and Rs.75,640/- from the date of filing of this complaint i.e., from 23.02.2004 till the date of realisation and the opposite party is directed to deposit the above said amount within one mother from the date of receipt of this order”.

        Aggrieved by the order of the District Forum the petitioner - LIC filed an appeal before the

State Commission. Vide order dated 09.06.2008, the State Commission came to the conclusion

that “we have her clinching evidence that the death is accidental. We have already given our

opinion as per it. Coming to the facts the complainant proved that the death of his mother is an

accidental death. The District Forum has correctly came to the finding holding that it is an

accidental death and the complainant is entitled to the double accidental benefits as provided on

the policy. It is a well-considered order. There are no grounds to interfere with the order of the

District Forum.

        In the result the appeal is dismissed at the admission stage”.

        Hence this present revision petition.

        The main grounds for the revision petition are that:

         Both the Fora below have failed to see that there was no averment in the pleading or

evidence placed on record to show that the life assured had fallen from the staircase and

died due to the said fall.

         Both the Fora below have failed to see that there is no evidence like police report,

post-mortem report, Doctor’s certificate showing the cause of death due to accident.

         Both the Fora below have failed to see that the complainant did not mention under

what circumstances she fell from the staircase and what injuries she suffered due to

alleged fall and the complainant failed to establish that the death of her mother was due to

fall from staircase.

         Both the Fora below have failed that the principle laid down by the Kerala High

Court reported in AIR 1986 Kerala 201 (DB) that “in such contracts as one party is in

very strong position to know the material facts and the other is in very weak position to

discover them. The former is under duty not only to abstain from making false

representations of material facts but also to disclose, in good faith, such materials facts as

are within the knowledge of other party”.

         Both the Fora below have committed material irregularity and illegality and have

exceeded their jurisdiction by allowing the accident Benefit. Moreover, even

if the  case of accident benefit is made out, it is only an equal sum of the policy amount is

to be paid and no bonus and interest can be granted under the terms of the policy.

We have heard the learned counsel for the petitioner as well as the respondents and have

gone through the records of the case carefully.

        It is an undisputed fact that the respondent’s mother had taken two policies bearing no.

650696766 and 840116947. Thereafter, as per the respondent she died on 05.04.2003 by

accidental slip from ‘upstairs’. The respondent has nowhere mentioned in the complaint as to

when the accident took place and the circumstances of the accident. He has also not mentioned

the injuries sustained and what action was taken after the accident. The respondent has also not

mentioned who discovered his mother after she fell down and what action was taken for

getting hermedical aid. It was also not clear from the complaint as to when she fell and when she

died. The respondent has filed the claim for insurance which has been repudiated by the

petitioner as there are no documents to prove that the incident of death was by accident. There is

no police report, no death certificate, no post mortem report and no certificate by any Doctor

certifying the cause of death. The only proof given is the statement made by the villagers of the

deceased life insured and the Panchayat Secretary and MRO from the alleged records of the

MRO Chittamur village LDO no. 413/ 2003 dated 06.04.2003. The petitioner has placed on

record the letter from MRO Chittamur dated 02.04.2004 which reads as follows:

“Subject: Issue of public copy of file bearing no. L Dis. 413/2003-dt.Reg

        Reference: Senior Divisional Manager, Lr. Dt. 02.04.2004.

With reference to the letter cited it is informed that this office file bearing no. L Dis. 413/2003 dated 12.05.2003 dealt with the correspondence of fire accident subject relates to Mettu village. Honorarium paid in favour of Sri S K M Saheb son of Khadar Saheb ofMattu village, but it does not relate the alleged accidental death of N Sarasamma of Melakalapudi village.

Yours faithfully, Mandal Revenue OfficerChittamur”

 

        The District Forum surprisingly allowed the complaint on the ground that the burden “lies

on the opposite party to establish the death of N Sarasamma is a natural one”…………. When

the OP took the plea that the death of Nemalapudi Sarasamma is a natural one. But to prove no

scrap of paper was filed to show that N Sarasamma death is a natural one”.

 

                It further held that “it is the case of the complainant that the complainant’s mother

N Sarasamma died due to falling from the staircase and that they did not give any report to the

police about the death of N Sarasamma as it was an accidental one. So the police reports and

other records were not available. The production of police reports and other records is not

required”.

        It is not known and on what basis the State Commission has held that “as per the

complainant after the insured fell down accidentally from the upstairs she died while taking to

the hospital. The matter was not reported to the police. When the matter itself is not reported to

the police, registering the case by police and conducting inquest and post mortem on the

deceased does not arise. When death occur by accidental slip etc., nobody would report to the

police. It is not an offence. She cannot complain against herself for slipping from the steps. The

appellant intends that every accidental death should be equated to a death like a death by motor

vehicle accident. We believe that the appellants are in confusion over the expression ‘accident’.

She must not have anticipated slip from the steps would result in her death norher family

members. In such cases, there will not be any report to any authority. The District Forum has

elaborately discussed and gave finding”.

        In the absence of any records, the respondent has failed to give any affidavit of any person

who was present at the time of accident or death. Even the panchanama report given

by the  Panchayat Secretary merely says what was given in the complaint that N Sarasamma had

fallen down from the stairs and she was taken to Nellore by road and she died on the way. In

fact, this fact has not been mentioned in the complaint. There is no other information with regard

to the injuries sustained and when the death occurred. This report has been allegedly signed by

the Mandal Revenue Officer, Chittamur, though, later he has stated as mentioned earlier, that the

incident bearing no. L Dis 413/ 2003 dated 12.05.2003 does not pertain to N Sarasamma.

        We are of the view that the respondent has failed to prove that the death was caused was

due to accident. No evidence has been placed on record by the respondent to establish the same.

Hence, the revision petition is allowed and the orders of the State Commission and the District

Forum are set aside and the complaint is dismissed, with no order as to cost.

Sd/-..………………………………

[ V B Gupta, J.]   Sd/- ………………………………..[Rekha Gupta]

Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

  REVISION PETITION No. 3741 of 2008

(From the order dated 07.07.2008 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in Appeal no. 1478 of 2007)

New India Assurance Company Ltd., Divisional Office 1st Floor, Near CBS Old Agra Road Nasik – 422002 (Maharashtra) Through Manager Regional Office – 1 Jeevan Bharti Building124 Cannaught Circus New Delhi – 110001

Petitioner  VersusSmt Manish Abhay Bedmutha Resident of Post Ghoti Tal: Igatpuri District Nasik – 422002 (Maharashtra) Nasik Merchant Co-operative Bank Ltd. Administrative Office A – 16 Industrial Estate Babubhai Rathi Chowk Satpur, Nasik – 422002 (Maharashtra)

Respondents BEFORE:

          HON’BLE MR JUSTICE V B GUPTA             PRESIDING MEMBER

          HON’BLE MRS REKHA GUPTA                                                 MEMBER

For the Petitioner                               Mr Kishore Rawat, Advocate

For Respondent no. 1                         Mr Sunil C Surana, Advocate

For Respondent no. 2                         Ms Jyoti U Panwalkar, Advocate

 Pronounced on       10 th   October 2013

ORDER REKHA GUPTA

                Revision petition no. 3741 of 2008 has been filed under section 21 (b) of the Consumer

Protection Act, 1986 against the order dated 07.07.2008 passed by the Maharashtra State

Consumer Disputes Redressal Commission, Mumbai in First Appeal no. 1478 of 2007.

        The facts of the case as per respondent no. 1/ complainant are as follows:

        The respondent no. 1 submits that as a wife/ widow of the deceased

Dr Abhay Bansilal Bedmutha, the respondent no. 1 is the legal heir of the deceased

Dr Abhay Bansilal Bedmutha who was the consumer of the petitioner. The respondent no. 1 is

therefore, entitled to file the instant complaint against the petitioner.

        The respondent no. 1 submits that deceased Dr Abhay Bansilal Bedmutha had a bank

account with respondent no. 2 - Bank and was a shareholder/ member of the respondent no. 2 –

Bank. The deceased was a consumer of both the Insurance Company as well as the Bank.

        The respondent no.1 submits that respondent no. 2 - Bank canvassed a

Group Janata Personal Accident Insurance Scheme for all of its shareholders/ members, floated

by the insurance company. Accordingly, the deceased Dr Abhay Bansilal Bedmutha purchased

the said accident insurance policy for Rs.5,00,000/- under the Group Janata Accident Insurance

policy bearing no. 47/98/300232 from the Insurance Company through the Bank and paid

premium amount of Rs.340/- to the insurance company by the deceased

Dr Abhay Bansilal Bedmuthatowards the insurance coverage through the Bank. The said

accident insurance policy was valid for 12 years from the date of purchase thereof i.e., till

17.11.2010 and the same was/ is still valid on the date of accident vis-à-vis the death of the

deceased. Rs.5,00,000/- is the amount assured against any type of disability and in case of death.

All the necessary records and particulars regarding the said accident insurance policy coverage

concerning to the deceased are in possession of the insurance company.

        On 14.10.2008 at about 07.00 p m while going to Vashi on his Hero Honda bearing

registration no. MH 03 U 824, at Sion-Panvel Road, near New Toll Naka, in the jurisdiction

of Vashi Police Station, the deceased Abhay Bansilal Bedmutha was unfortunately hit by an S T

Bus of MSRTC from behind and sustained grievous bodily injuries.

        Immediately the deceased was taken to the M G M N Hospital, Vashi. However, on

admission the deceased was declared dead.

        The respondent no. 1 being a widow and legal heir of the deceased

Dr Abhay Bansilal Bedmutha, submitted duly filled in claim application to the Bank on

13.11.2006 with the request to process her claim of assured insurance amount of Rs.5,00,000/-.

Thereafter, the Bank, after filling the required information in the said application, sent the said

application to the insurance company along with all the necessary documents viz., claim

application, a copy of the FIR and Panchnama, Death Certificate and Memorandum of Post

Mortem Report dated 14.10.2006, issued by NMMC General Hospital, Post Mortem

Centre, Vashi and other related papers for processing the claim of the respondent no. 1 as per the

insurance policy. The said claim application along with the other referred documents have been

duly submitted in the office of insurance company by the Bank.

        Thereafter the insurance company vide letter dated 06.12.2006 informed the Bank with a

copy marked to respondent no. 1 rejecting the claim on the ground that petitioner had cancelled

the insurance policy of the deceased allegedly with effect from 04.06.2002 and also as the claim

allegedly lodged is after the purported date of cancellation of the policy. However, no such

information of alleged cancellation of the insurance policy was ever given to the deceased or to

any of its relatives/ legal heir, as falsely claimed by the Insurance Company.

        The respondent no. 1 further submitted that the alleged act of the insurance company was

unilateral and arbitrary cancellation of policy of the deceased was not only illegal, bad in law,

absurd, void-ab-intio but also untenable in law. The insurance company had neither informed the

reasons of alleged cancellation of policy prior to the date of the cancellation nor sought any

consent prior to the alleged cancellation of policy either to the deceased or the insurance

company, nor refunded the premium amount of Rs.340/- so collected by the insurance company

for the insurance coverage, when the insurance company allegedly cancelled the policy.

Respondent no. 1 therefore, submitted that the aforesaid alleged act of unilateral and arbitrary

cancellation of the policy of the deceased and rejection of the claim by the insurance company

was nothing but an attempt to avoid the payment of guaranteed insurance amount of

Rs.5,00,000/- by illegal and improper means. Therefore, the said alleged action of the insurance

company are required to be set aside and they were directed to pay the assured insurance amount

of Rs.5,00,000/- with compound interest on monthly basis, at the prevailing market rate.

        The petitioner/ opposite party no. 1 in their report before the District Consumer

Disputes Redressal Forum, Nasik (‘the District Forum’) while admitting that there

was Janata Personal Accident (Group) Policy of Rs.5,00,000/- of the deceased through the Bank

by the Insurance Company bearing no. 47/00344 with endorsement no. 47/30232 stated that the

same was subsequently cancelled with effect from 04.06.2002 under the terms and conditions of

the policy authorising the company to terminate the same at any time and accordingly such

notice dated 20.05.2002 was given to the Bank which was duly received by it. Not only this

policy was cancelled but the policy of all other branches of NAMCO Bank were also cancelled at

the same time. However, while cancelling the policy the pro-rata premium was required to be

refunded as per condition no. 5 of the terms and conditions of the policy which was not done by

the company and as such there was technical-cum-legal hitch in treating the policy as cancelled

legally. Thus, the said cancellation of policy had automatically became infructuous.

        The accident in the present case seems to have taken place on 14.10.2006 but prior to that

the insurance company vide its letter no. 410 dated 06.09.2006 had informed the

Bank, Ghoti Branch about the cancellation of policy with effect from 15.09.2006 and had sent a

consolidated cheque no. 91913 dated 05.09.2006 of Bank of India for Rs.59,056/- towards refund

of proportionate premium in each case to be refunded to concerned members of the Bank

of Ghoti Branch but strangely enough the Bank had returned the amount by DD no. 817633 vide

letter dated 15.09.2006 for no just and proper reason unilaterally and that too without the

knowledge/ consent of the insured persons including the deceased of the company. The Bank

ought not to have returned the amount of refund of pro-rata premium to the insurer. By returning

that amount, the bank had run a risk of compensation for future period, i.e., from 15.09.2006. In

order to safeguard Bank’s interest and risk, the insurance company had sent back that DD to the

Bank vide its letter dated 07.02.2007 through which it was also again apprised of the fact that

irrespective of the fact whether they accept the cheque/ DD or not, this company would not be at

risk (liability) with effect from 15.09.2006, in view of the cancellation of policy and refund of

pro-rata balance premium as per condition no. 5 of the policy. Bank was also asked to refund the

aforesaid premium to the members concerned as per the list which had been already forwarded to

them vide Company’s earlier letter.

        As the subject policy was a group accident policy through the Bank it was not expected to

inform each and every individual by the insurance company when the Bank was under obligation

to inform of the development with regard to the policy to its members.

        The Bank having accepted the refund of pro-rata premium for the period from 15.09.2006

onwards they or the respondent/ complainant cannot now say that the policy was in existence on

the date of death of the deceased in this case.

        The written statement of respondent no. 2/ opposite party no. 2 has not been filed. However, as per the order of the District Forum the respondent no. 2 had openly “ taken the side of the complainant and they have declared and the fault is given to the OP no. 1. According to their (Bank) saying they have no concern with the above dispute and they should be released from the above case and such prayer they have been made”.

        After hearing the learned counsel for the parties, the District Consumer Disputes Redressal Forum, Nasik (‘the District Forum’) observed that “the opposite party no. 1 is taking the shelter of conditional no. 5 which is out of the conditions which are the terms and conditions of the agreement deed. According to condition no. 5, that after giving the written notice the insurance policy can be cancelled and the right of which is with the Insurance Company this notice is to be sent to that person who had taken the policy. But before how many days the notice is to be given about which it is not clearly mentioned in it. In spite of it, in our opinion, it is essential the limitation of generally within 30 days. The insurance company has been admitted that they have given the notice to the opposite party no. 2 only of the cancellation of the policy. The opposite party no. 1 had mentioned the same under paragraph no. 7 B in their written statement that it is not expected to send the notice to every consumer personally. It means that the opposite party no. 1 had not sent any notice to any consumer about the cancellation of the policy. In this way the opposite party no. 1 has violated the condition no. 5. In this section he had been given the right to cancel the policy. But in our (Forum’s) opinion they cannot do that. The explanation of which we are giving further.

        The limitation of the policy is for 12 years it means from 18.11.1998 to 17.11.2010 and on this faith the deceased Dr Abhay and others have taken or purchased the policy and if that policy cancelled in the mid period then this is breach of trust of the consumers which we feel. It is OK till that period when the recovery of the money is done from the consumer and till that period when the interest of which is remained and obtained and when it is traced out about the damages the policy is to be cancelled which is not framed in the legality.

        The opposite party no. 1 had filed one letter to the last moment, the date of which is 23.09.2001. In this letter the opposite party no. 1 had shown such reasons at the time of cancellation of the policy that the number of consumers was increased in the period of three years and on account of which we are facing a loss in a very big extent, therefore, we are cancelling the insurance policy. What is the type of this justice which is beyond to the imagination, these companies shown the temptation at first, then contribute the money, they earn the benefit of it and when the turn comes to giving the money then they breach their promises and agreement. For such system there is no shelter or base of act. It is OK that they were having the right to cancel the policy. But why this policy is cancelled the strong reasons of which is wanted which is given by the Gujarat High Court in its judgment and about which instantly we have mentioned according to the above given.

        The opposite party no. 1 had which insurance policy was cancelled in the year 2002 that was taken back and after that the policy was cancelled from 15.09.2006. This information was given to the opposite party no. 2 by the opposite party no. 1 on 06.09.2006. The opposite party

no. 1 (Insurance Company) had sent one letter with the demand draft and sent one letter to the Ghoti Branch and it is mentioned in it that after date of 15.09.2006 they are not responsible. Therefore, the date of the letter is very much important. Deceased Dr AbhayBedmutha had died due to an accident on 14.10.2006 and after that nearly about four months that amount sent to his widow under the reference of prereted. The meaning of it is as such that the insurance policy was live till 07.02.2007 and before it Dr Abhay Bedmutha had died. In these circumstances, also the right for getting the full policy amount is with the respondent/ complainant certainly, according to the law.

        In our opinion the opposite party no. 2 had no concern about to take and give the policy in any kind in the above case. No error is seen in their services. The error is seen certainly in the service of the opposite party no. 1 they had vitiated the agreement”.

They therefore gave the following order:

(i)                  The complainant application of the complaint against the opposite party no. 1 is admitted with the expenses of Rs.5000/-.

(ii)                 The opposite party no. 1 should pay Rs.5,00,000/- and the interest at the rate of 18% per annum from 13.11.2006 till that period to getting the full payment. Similarly for the mental/ psychological harassment the damages amount of Rs.10,000/- should be given to the complainant within 30 days and if the delay is occurred for making the payment then the opposite party no. 1 should pay the interest rate of 12% per annum.

(iii)                The complaint application is dismissed without any expenses against the opposite party no. 2.

Aggrieved by the order of the District Forum, the petitioner/ OP no. 1 filed an appeal before the State Commission. The State Commission also held that “such a cancellation is bad in law and cannot be acted upon. Therefore Forum below in our considered view rightly held that complainant was entitled to get benefit of policy, since the said policy was cancelled arbitrarily and not following the provisions contained in clause no. 5 of the policy, whereby company was given unilateral right to cancel the policy. When Insurance Company is cancelling the policy, it has to cancel the policy strictly as per clause no. 5 of the said policy and if clause no. 5 is not properly followed, then Insurance Company cannot be heard to say that they had followed clause no. 5 and cancelled the Janata Personal Accident Group Insurance policy pertaining to respondent no. 1. In this view of the matter order passed by the Forum below is appearing to be just and proper. Even affidavit filed on behalf of Insurance Company mentions that they have committed legal blunder while cancelling the policy with effect from 04.06.2002 when in fact they had not refunded pro-rata premium to all the policy holders. So company has committed violation of terms mentioned in clause no. 5 of the terms of the said policy and therefore, they cannot take benefit of cancellation clause. Forum below therefore rightly passed on award against the appellant and we are finding no merit in this appeal. Hence, at the stage of admission itself, appeal will have to be rejected summarily. Hence, the following order:

Appeal stands rejected summarily.  Miscellaneous application for stay stands disposed of”.

Hence, the present revision petition.

    The main grounds for the revision petition are as follows:

         The cancellation of the policy was strictly as per the terms and conditions of the

policy and the Hon’ble Supreme Court and the Hon’bleCommission has held that if the

policy is cancelled in terms of the policy condition, the same cannot be challenged by the

insured. The policy condition no. 5 contemplates that the cancellation notice has to be

sent to the insured and such notice shall be deemed sufficiently given if posted at the

address of the insured last registered in the books of the company. In the present case as

well as the registered letter was posted to the insured at the address given in the policy

and available in the records of the petitioner company.

         Once the policy was cancelled, the question of payment of claim does not arise. The

complaint itself was not maintainable as there was no privity of contract between the

complainant and the petitioner company. The complainant in any case was not entitled to

challenge the cancellation in any manner as she was not privity to the contract. The

cancellation having been not challenged by the insured could not have been challenged

by the complainant.

         The State Commission erred in recording the finding that the letter refunding the

cheque was dated 07.02.2007 it is submitted that the cheque of refund of premium was

sent vide letter dated 06.09.2006 and the Bank who is the insured under the policy was

duly acknowledged the same on 09.09.2006. The finding of the State Commission

therefore, is against the evidence on record. It is not understood as to from where the

State Commission has taken this date as 07.02.2007.

         The Fora below further erred in holding that the cancellation per se is illegal as the

cancellation of the policy has not been informed to the individual member. It is submitted

that the policy was issued in the name of the Bank. As per condition no. 5 of the policy,

the termination notice has to be given to the insured. The notice was duly given to the

insured on 20.05.202. It was therefore, the duty of the Bank to have intimated to the

individual member/ account holder. If the bank has not intimated the cancellation to the

individual member, the insurance company cannot be found at fault.

         As submitted above, the cancellation of the policy was not challenged, either by the

bank or the individual member on receipt of the cancellation letter in May 2002. Even

after the refund of the premium in 2006, there was no protest of any kind either from the

bank or from the individual member. In the circumstances, therefore, the widow of the

deceased member cannot challenge the cancellation of policy. Right to challenge is

vested with the Bank being the insured under the policy. The Consumer Fora cannot go

into the correctness of the policy condition and the question as to whether the

cancellation was valid or not. The jurisdiction of the Consumer Fora can only be invoked

if there is a privity of contract. Once there is no privity of contract, the complainant is not

a consumer and therefore, the complaint itself was not maintainable.

         The complainant, if aggrieved, could have challenged the cancellation of the policy, if

permissible in law in a writ jurisdiction and not under the Consumer Protection Act.

         In any case the insurance company be held liable because of violation of Section 64 V

B of the Insurance Act. The petitioner had already refunded the premium prior to the

accident and therefore, in the absence of any premium, the insurance company cannot be

held liable. If the premium has been retained by the bank and not refunded to the

individual member, it is the Bank who is liable and not the insurance company.

         Because in any case the interest awarded at 18% per annum by the District Forum is

excessive, exorbitant and against the well settled law laid by this Commission and

the Hon’ble Supreme Court.

We have heard the learned counsel for the parties and have gone through the records of

the case carefully.

A copy of the policy has been placed on record. It is seen from the policy that the policy

was in the name of respondent no. 2, i.e., the Nasik Merchant Co-operative Bank Ltd.,/ OP -

Bank and not in the name of respondent no. 1. Hence, when the petitioner invoked clause no. 5

of the conditions it issued a letter dated 20.05.2002 regarding cancellation of JPA (Long Term)

Policy/ Endorsement no. 47/30109, 30232, 30647, 30704 and 30804. The said notice was issued

to the Branch Manager of the NMC Bank Ltd., The letter reads as follows:

“This has reference to your above mentioned policy/ endorsement.

We regret to inform you that as the claim ratio on the referred policy is very high we will be cancelling the policy, evoking our condition no. 5 with effect from ________

    The condition no. 5 reads as under:

The company may at any time by notice in writing terminate this policy provided that the company shall in that case return to the insured the then paid premium in respect of such person respect of whom no claim has arisen, less prorate part thereof for the portion of the insurance period which shall have expired. Such notice shall be deemed sufficiently given if posted addressed to the insured at the address last registered in the Company’s books and shall be deemed to have been received by the insured at the time when same would be delivered in the ordinary course of post.

Needless to mention that as the policy stands cancelled with effect from 04.06.2002 on claim of whatsoever nature will be entertained/ tenable/ payable for any damages occurred on or after 04.06.2002 which please note”.

Thereafter the petitioner realised that since the said premium on this pro-rata part thereof

for the portion of the current insurance period had not been released the said notice had become

infructuous. Thereafter they sent another letter dated 06.09.2006 addressed to the

Manager, Ghoti Branch of Nasik Merchants Co-operative Bank Ltd., which read as follows:

“Subject : Long term JPA Policy issued for a period of 12 years from 1998 covering your shareholders and members vide our policy no. 152801/47/30 as per list attached issued to your branch for the period as per list attached.

We hereby notify you that Long Term JPA policy was issued for a period 12 years with effect from 1998 covering your shareholders and members vide aforesaid endorsement stands terminated.

Please note that we have already cancelled the aforesaid endorsement vide our letter dated NIL and accordingly proportionate premium being refunded to you. Consequent to the cancellation of the policy and refund of proportionate premium for the remaining period ofananta personal accident policy (group) A/C M/s Nasik Merchants Cooperative Bank. The New India Assurance Co. Ltd., will be discontinued and the company will no longer be on risk and will not be liable in respect of any claim arising under the said policy with effect from 15.09.2006.

Please find enclosed a cheque no. 91913 dated 05.09.2006 for Rs.59,056/- being proportionate amount of premium refunded to you. This refund is being made on account of the policy holders on whose account you had obtained the above mentioned policy. Please take further necessary steps to refund the proportionate amount to shareholders/ members of the bank. The copy of the list of all your insured members that were covered under the policy is on your record.

Please note that the persons covered under the endorsement was as per list attached. Claims were reported on this endorsement, hence, refund of _____ persons were made through this payment.”

As per the learned counsel for respondent no. 2, thereafter it had written to petitioner vide letter no. 15.09.2006 that:

“Your letter with a cheque of Rs.59,056/- dated 09.09.2006 bearing no. 091913 of Bank of India, Shiwaji Garden Branch, Nasik is received in respect of aforesaid reference. In this respect your attention is invited to your letter of May 2002.

As per that letter you had intimated about the cancellation of policies with effect from 04.06.2002 but as per that letter and its annexure date of cancellation is shown as 15.09.2006 and that date onwards you have refunded the amount which is contrary to your letter of May 2002. As per your letter of May 2002, the Bank has published advertisement in daily Deshdoot dated 28.05.202 about the cancellation of JPA policies taken from your company for the amount of policy below Rs.1,00,000/-. However, while deducting the pro-rata it was necessary to deduct the amount upto 04.06.2002 and to send the amount for further remaining period. Similarly, it was necessary to give interest @ of 15% per annum on that amount for the period from the date of credit of that amount with you till the refund of that amount.

As you failed to do so we are sending herewith a pay order no. 817633 for Rs.69,056/- dated 15.09.2006 against the cheque sent by you vide your aforesaid letter, which may please be acknowledged and take the necessary action promptly.

Also note that policy would be in existence till date of refund of the amount with interest thereon for the remaining period from 04.06.2002 onwards.”

The cheque was thus returned to respondent no. 2 by the petitioner vide letter dated

07.02.2007 stating that:

“It is further stated that we had cancelled the policy with effect from 04.06.2002 no refund of proportionate premium as per condition no. 5 was refunded and due to this fact a legal hitch was created. Due to this hurdle we had to shoulder the liability (risk) even for further period from 05.06.2002 though the policy was cancelled earlier.

To overcome further liability, we have refunded the proportionate premium by the cheque of which was returned by you unilaterally and that too without the knowledge/ consent of the insured persons.

Hope the matter may now be cleared to you about the cancellation of policy, with effect from 04.06.2002 and refund of balance premium. It is further added to state that it was now, not necessary to refund the proportionate premium for the period from 05.06.2002 onwards, only after deducting the prorata premium upto 15.09.2006 especially in view of fact, that no refund was made at all while cancelling the policy with effect from 04.06.2002. In view of aforesaid facts the cancellation of policy with effect from 04.06.2002 has automatically became infructuous.

Your contention that the refund of premium should have been refunded with interest @ 15% from the date of receipt of premium through you till the time of refund is not correct and legal and as such the same is denied by us. However, in no way the prorata(proportionate) premium is required to be refunded with interest reiterating the fact that we were already on risk upto 14.09.2006 and cease to be on risk with effect from 15.09.2006.

Under such circumstances, you ought not to have returned the cheque of refund of balance of premium. By returning the cheque we feel that you had run a risk of compensation for future period i.e., from 15.09.2006. In order to safeguard your interest and risk we here bytake liberty to send that demand draft back to you, which is enclosed for your further necessary action. You are also requested to note that irrespective of the fact whether you now accept the cheque or not, this company will not be at risk (liability) with effect from 15.09.2006, in view of the cancellation of policy and refund of balance premium after deducting prorata premium as per condition no. 5 of the policy.

Thus, it is advisable to accept the cheque and refund the proportionate premium to members concerned as per the list which we have already forwarded to you with our earlier letter”.

Counsel for the respondent no.2 admitted that no information regarding cancellation of the JPA policy was sent to the individual beneficiaries even though the petitioner in their letter dated 07.02.2007 had clearly mentioned that “by returning the cheque we feel that you had run a risk of compensation for future period i.e., from 15.09.2006. In order to safeguard your interest and risk we hereby take liberty to send the DD back to you for further necessary action. You are also requested to note that irrespective of the fact whether you now accept the cheque or not, this company will not be at risk/ liability with effect from 15.09.2006 in view of the cancellation of the policy a refund of balance premium after deducting pro-rata premium as per condition no. 5 of the policy”.

        It would appear that respondent no. 2 accepted this decision of cancellation of the JPA

policy under clause 5 and also accepted by default that they would be liable for any

compensation for the period from 15.09.2006 till such time the pro-rata premium was refunded

to individual beneficiaries  after due intimation of cancellation of the policy. Learned counsel for

respondent no. 2 could not inform us as to when the premium has been refunded to respondent

no.1.

Learned Counsel for the petitioner has given three citations of the National Commission:

        In the case of Ashok Jain vs Oriental Insurance Co. Ltd., - 1 (2012) CPJ 150 (NC), wherein this Commission has observed that “it is thus clear that in cancelling the insurance  policy in question, the insurance company needed to write to “the insured” and not to “the insured person”. Perusal of the certificate of insurance shows that the State Bank of India Officers Association, Chandigarh Circle was recorded as the “insured”, whereas, Adesh Kumar Jain  was recorded as “the insured person”. In other words, for cancellation of the policy it was sufficient for the insurance company to send notice only to the “insured”. Viz., the State Bank of India Officers Association, Chandigarh Circle. It is not in dispute that this was done by the Insurance Company. Hence, the contention of the learned counsel for the petitioner is not valid and cannot be accepted”.

        In the case of Usha Sharma and Ors vs New India Assurance Co. Ltd., and Ors, - I (2012) CPJ 488 (NC), this Commission has held that “a perusal of the above condition would show that the insurance company was within the right to cancel the policy in question at any time provided the written notice are sent to the policy-holders and the balance premium for the unexpired/ uncovered policy period is returned to the insured. In the present case, as per condition no. 5 of the insurance policy, the policy in question was cancelled by the insurance company and intimation was sent to the policy holder by registered letter. Cheque of Rs.601/- towards balance premium was also returned to the insured. Public notice of cancellation was also given through newspapers and it was enough notice to the respondent regarding cancellation of the policy. Since, the policy was cancelled during the life time of the insured and due intimation was given to him along with cheque of balance premium, the insurance company was not liable to indemnify the complainants. Even the Hon’ble Supreme Court in the case of United Indian Insurance Co. vs Harcharan Chand Rai Chandan Lal, IV (2004) CPJ 15 (S) = V (2004) SLT876 and National Insurance Company vs Laxmi Narain Dhut – III (2007) CPJ 13 (SC) = IV (2007) SLT 102 = II (200&) ACC 28 (SC) has held that the policy is a contract between the parties and both the parties are bound by terms of contract”.

        In the case of Nand Kumari and Ors vs Oriental Insurance Co. Ltd., - I (2012) CPJ 357 (NC), the National Commission has held that. “it is not in dispute before us that the policy could be cancelled at any time by the insurer as averred by the respondent in paragraphs no. 4 and 5 of its written version. The insured died on 22.07.2006. Policy had been cancelled by the respondent on 26.11.2000 and anintimation to that effect was sent to the insured by a registered letter addressed to him at the address given by him in the proposal form for obtaining the said policy. Intimation regarding cancellation was sent to the insured along with cheque off pro-rata premium drawn on Bank of India”.

        The present revision petition is covered by the three citations given. Undisputedly the group

insurance policy had been cancelled vide letter 410 dated 06.09.2006 with effect from

04.06.2002 and intimation to this effect was given to the insured which is the Bank along with

the intimation a cheque for Rs.59,056/- being proportionate amount of premium being refunded..

        Counsel for the respondent has given two citations. The facts of the case do not apply to the

case in hand.

        In view of the above, we are of the view that the petitioner had cancelled the policy as per

clause no. 5 of the terms and conditions of the policy which had been issued in favour of

respondent no. 2 even giving the reasons for cancellation of the policy. Respondent no. 2 did not

challenge the cancellation of the policy. Respondent no. 2 also failed to inform the individual

beneficiaries including respondent no. 1 of cancellation of the policy and failed to refund the pro-

rata premium sent to them vide letter dated 06.09.2006. They thus denied the opportunity to the

petitioner and her husband to avail of an alternate policy, if they so desired. Petitioner’s husband

Dr Abhay BansilalBedmutha died on 14.10.2008. Hence, the revision petition is allowed and the

order of the District Forum is modified to the extent that complaint/ application of the complaint

is admitted only against respondent no. 2 who should pay the expenses of Rs.5,000/- as also

Rs.5.00 lakh with interest @ 9% per annnum from the date 13.11.2006 till that period to getting

the full amount. Similarly for the mental/ psychological harassment the damages amount of

Rs.10,000/- be given to the complainant within 30 days from the date of pronouncement of this

order.

        However, we would like to place on record that many cases have come to our notice that

where the insurance company having offered attractive group insurance policies to various

institutions for the benefit of their employees later unilaterally withdrew the same as in the

instant case, where the claim ratio on the referred policy becomes high. This tantamounts to

unfair trade practice. Beneficiaries are tempted by the offer of attractive terms and money and

amounts are collected over the years and thereafter benefits are denied when they submitted their

claims. The Insurance company unilaterally decide that group insurance policies so offered

earlier be cancelled because they are no more financially viable and beneficial to them. A

protocol or procedure for cancellation and informing the beneficiaries is also not laid down.

Most often the individual remains unaware that they are no more covered for insurance, thus

denying the benefit of insurance even though they have been paying the premium for the

insurance policy over the years. Secretary, Ministry of Financial Service and Chairman IRDA

may like to review such cases of cancellation of group insurance policies by public sector and

private companies and take necessary action to ensure that the insurance companies cannot in

future unilaterally cancel the group insurance policy after having offered the same. Even if it is

to be cancelled it should be terminated not with retrospective effect, as the beneficiaries already

covered should remain covered for the duration of the policy. Copy of this order may be sent

Secretary, Department of Financial Services, Ministry of Finance, 3 rd Floor, Jeevan Deep

Building, Parliament Street, New Delhi – 110 001 and Chairman, Insurance Regulatory and

Development Authority, 3rd Floor, Parisrama Bhavan, BasheerBagh, Hyderabad 500 004, Andhra

Pradesh.

Sd/-..………………………………

[ V B Gupta, J.]  Sd/-………………………………..[Rekha Gupta]Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   4156 OF 2011

(From the order dated 24.08.2011 in First Appeal No. 175/2009 of Uttarakhand State Consumer Disputes Redressal Commission)

 

1.   Chaitanya Prasad s/o Nand Kishore 

2.   Rajesh Kumar s/o Daulat Ram both residents of Badri Vishal Travels Gopal Kuti, Rishikesh, District Dehradun through Chaitanya Prasad

                       ...  Petitioners

  versus

 National Insurance Co. Ltd. through its Branch Manager Branch Office, Hardwar Road Rishikesh, District Dehradun Uttarakhand

                                            … Respondent

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 APPEARED AT THE TIME OF ARGUMENTS

 For the Petitioner(s)   Mr. S.M. Tripathi, Advocate

Mr. B.S. Sharma, Advocate 

For the Respondent   Mr. Abhishek Kumar, Advocate

 

PRONOUNCED   ON :   10 th   OCTOBER     2013 O R D E R 

PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 against the impugned order dated 24.08.2012, passed by the Uttarakhand State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 175/2009,

“Chaitanya Prasad & Anr. versus National Insurance Co. Ltd.”, vide which the appeal filed by

the petitioner/complainant against the order dated 25.08.2009, passed by the District Consumer

Disputes Redressal Forum, Dehradun in consumer complaint no. 94/2008, was dismissed and the

order passed by the District Forum, allowing the said complaint, was upheld. 

 

2.     Brief facts of the case are that both the petitioners/complainants got their Tata 709 Bus,

bearing registration number UA 07 C/8018 insured with the respondent / OP, National Insurance

Co. Ltd. (for short the ‘insurance company’) for the period from 29.04.2007 to 28.04.2008, vide

policy No. 462201/31/07/6300000359 and the IDV of the said vehicle was estimated to be

Rs.5.40 lakh.  On 12.08.2007, when the said vehicle was going from Pipalkoti from Badrinath, it

met with an accident, due to which it suffered extensive damage.  An information regarding the

accident was conveyed to the OP insurance company on 13.08.2007 and information was also

given to the Police Station Joshi Math by the driver of the vehicle Surya Prakash.  A spot survey

of the vehicle was got carried out by the insurance company through its surveyor R.R.

Sharma.  The salvage of the vehicle could not be retrieved by the complainant due to constant

landslides etc.  The insurance company informed the complainants on 14.09.2007 to retrieve the

salvage and store it in safe custody and present the estimates of repairs so that final survey could

be conducted.  The complainants retrieved the salvage on 28.11.2007 and paid Rs.30,000/- for

bringing the same to Rishikesh.  It has been stated in the complaint that the complainants had

been paying an amount of Rs.200/- per day for safeguarding and storing the salvage of the said

vehicle.  The final survey was carried out by the OP insurance company through surveyor

V.P. Singhal on 5.12.2007 and as per their letter dated 12.12.2007, the repair estimate of

Rs.7,74,331/- was prepared by Commercial Motors, Rishikesh and another estimate of

Rs.1,98,000/- was prepared by Abdul Guffar, Rishikesh, the body-makers.  In this way, a total of

Rs.9,72,331/- was stated to be required to repair the said vehicle.  However, the Insurance

Company offered to the complainants on 21.2.2008, a sum of Rs.44,000/- as settlement amount,

but the complainant demanded a sum of Rs.5,40,000/- being the IDV of the vehicle.  The

complainant stated that the surveyor V.P. Singhal & Company had termed the condition of the

vehicle as ‘major damage’.  The case of the complainants is that it is a case of total damage and

Rs.5,40,000/- being the IDV of the vehicle, should be paid to them along with interest @15%

p.a. from the date of the accident and the cost incurred for retrieving the salvage and its storage

and maintenance should also be paid, along with Rs.20,000/- for mental harassment and

Rs.10,000/- as cost of litigation.  The District Forum vide their order dated 25.08.2009 awarded a

sum of Rs.3,70,000/- to the complainant along with interest @7% p.a. from the date of the

presentation of the complaint.  The District Forum based their conclusion on the basis of

surveyor report in which the estimate of compensation on repair basis has been stated to be

Rs.3,70,000/-.  An appeal was filed against this order of the District Forum before the State

Commission by the complainants, but it was dismissed vide impugned order.  It is against this

order that the present revision petition has been made before us.

 

3.     At the time of hearing before us, learned counsel for the petitioner has drawn our attention

towards the terms and conditions stated in the “Private Vehicles Package Policy” issued by the

Insurance company, in which it has been stated that “IDV will be treated as market value

throughout policy without any further depreciation for the purpose of total loss/constructive total

loss claim.”  Learned counsel for the petitioner stated that the salvage of the vehicle had been

collected by the respondent company on 24.10.2009.  He pleaded that the orders passed by the

State Commission vide which order of the District Forum had been upheld, should be set aside

and the complaint should be allowed, and the relief as demanded by the complainant should be

provided.

 

4.     In reply, learned counsel for the respondent insurance company stated that the surveyor had

brought out in his report that the repair liability was worked out at Rs.3,70,000/- which was less

than 75% of the IDV and hence, the insured should get the vehicle repaired as per the estimate

submitted by him.  Learned counsel, however, could not give any reasonable explanation as to

why the labour charges to the tune of Rs.1.98 lakh as estimated by the surveyor were to be

excluded.

 

5.     We have examined the material on record and given a thoughtful consideration to the

arguments advanced before us. The basic issue involved in the present case is that the

complainant is demanding compensation based on the IDV of vehicle as shown in the insurance

policy.  The complainant has also demanded interest @15% on IDV, i.e., Rs.5,40,000/- from the

date of accident, i.e., 12.08.2007 till realisation and also the cost incurred in retrieval of salvage

and compensation for mental harassment and litigation cost etc.  It has been brought out from the

material on record that the vehicle suffered extensive damage due to the accident.  It has been

stated in the report of the surveyor V.P. Singhal and Co. that the original estimate for repair was

Rs.8,31,000/- including Rs.1.98 lakh as cost of labour.  It is not understood how the surveyor has

stated the estimate of repair to be Rs.3.7 lakh.  In the sheet of loss assessment attached with the

surveyor report, the cost of labour component has been stated to be zero, meaning thereby that

the estimate does not represent correct picture about damage.  Since it has been admitted that the

IDV of the vehicle as stated in the insurance policy is Rs.5.4 lakh and it is clear from the material

on record and facts regarding the retrieval of salvage etc. that it is a case of total damage to the

vehicle.  It is held, therefore, that the complainants are entitled to get compensation based on

IDV of the vehicle as stated in the insurance policy.  This revision petition is, therefore, allowed

and the orders passed by the State Commission and District Forum are modified to the extent that

a sum of Rs.5.4 lakh shall be payable to the Complainants along with interest @7% p.a. from the

date of complaint till realisation.  A sum of Rs.10,000/- shall also be allowed to the complainants

as cost of litigation.  The revision petition stands disposed of accordingly.

  Sd/-(K.S. CHAUDHARI J.)

PRESIDING MEMBER  

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   2311 OF 2008

(From the order dated 16.05.2007 in First Appeal No. 1261/1996 & 1306/1996 of Uttar Pradesh State Consumer Disputes Redressal Commission)

 

Lavlesh Singh proprietor Lovely Provision Store c/o Shivarpan Trading Co. Babaru Road, Kalu Kunwa, Banda – 210001.

...  Petitioner

  Versus

United India Insurance Co. Ltd. having its Divisional Office at 497, Sadar Bazar, Jhansi Branch Office at Dhima Chauraha, Aliganj, District Banda

                                    … Respondent

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 

APPEARED AT THE TIME OF ARGUMENTS

 

For the Petitioner(s)   Mr. Nikhil Jain, Advocate

For the Respondent   Mr. S.M. Tripathi, Advocate

 PRONOUNCED   ON :   11 th   OCTOBER     2013 O R D E R 

PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 against the impugned order dated 16.05.2007, passed by the Uttar Pradesh State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 1261/1996,

“United India Insurance Co. Ltd. versus Lavlesh Singh,” and FA No. 1306/1996, “Lavlesh Singh

versus United India Insurance Co. Ltd.” vide which the State Commission modified the order

dated 12.08.1996 passed by the District Consumer Disputes Redressal Forum, Banda.  The

District Forum had allowed the complaint filed by the complainant/petitioner Lavlesh Singh and

order to compensate him by paying Rs.91,000/- as compensation alongwith interest @9% p.a.

from the date of filing of the complaint.  The State Commission dismissed the appeal filed by the

complainant, but partly allowed the appeal filed by the OP/respondent and reduced the amount of

compensation to Rs.25,000/- along with interest @ 9% p.a.

 

2.     Brief facts of the case are that the complainant/petitioner runs a general store and stationery

shop in the name of Lovely Provision Store at Moh. Chhawni Road, District Banda.  As per the

complaint, he made an investment of approx. Rs.2 lakh in the shop and had got it insured for the

period from 2.03.1993 to 1.03.1994 vide insurance policy number 17286 for an amount of Rs.1.7

lakh.  The said shop caught fire on the intervening night of 26/27.02.1994, whereupon the local

fire brigade arrived at the spot and extinguished the fire.  Information about the incident was also

given to local Police.  It has been stated that there was a loss of Rs.1.5 lakh due to fire to the

stocks and furniture of the shop.  The OP insurance company appointed a surveyor to assess the

loss and the said surveyor stated that the loss was to the extent of Rs.13,733.48ps. only.  A

consumer complaint was filed by the complainant before the District Forum and the said Forum

awarded a sum of Rs.91,000/- to the complainant along with interest @9% p.a. stating that the

Fire Department had assessed the loss to that extent.  Two appeals were filed against the said

order of the District Forum – one by the complainant for enhancement of compensation and the

other by the insurance company.  The State Commission dismissed the appeal of the complainant

but partly allowed the appeal filed by the OP Insurance Company and directed that a sum of

Rs.25,000/- be paid to the insurance company as compensation along with interest @9% p.a.  It

is against this order that the present petition has been made.

 

3.     It was stated before us at the time of arguments by the learned counsel for the petitioner that

the survey report in question did not reflect correct picture about the loss and in fact, the survey

report had been submitted after the filing of the complaint in question.  It has been demanded in

the petition that a sum of Rs.1.5 lakh should be awarded along with interest @ 24% p.a.  The

learned counsel for the respondent, however, stated that the order passed by the State

Commission was in accordance with the facts on record and they had not filed any petition

against this order although a sum of Rs.25,000/- had been awarded against assessment of loss

made by the surveyor to the tune of Rs.13,733.48 only. 

 

4.     We have examined the entire material on record and given a thoughtful consideration to the

arguments advanced before us.  A careful perusal of the facts of the case indicates that the

surveyor assessed the loss of stock at Rs.12,333.55ps. but he stated in his report that the insured

had not submitted sufficient evidence and documents in support of purchase of stocks and hence

after making a deduction of 30%, the surveyor arrived at a figure of Rs.8,638.48ps. for loss of

stock.  The surveyor further stated that there was loss of Rs.5100/- only to furniture and fittings

and in this way, the total loss was assessed at Rs.8,633.48ps. + Rs.5,100 = Rs.13,733.48ps.  The

surveyor also mentioned that the insured has taken excess coverage of stocks and assets.  The

surveyor has also stated that the insured did not maintain any books of accounts, stock register,

cash memo etc. and he did not produce any documentary evidence regarding the insured

stocks.  The insured is also not paying any sales tax / income tax etc. and he was not preparing

any profit and loss statement or balance-sheet and hence, there was no authentic figure of

purchase and sales etc. 

 

5.     In the grounds of revision petition, the petitioner has stated that they had submitted

documentary evidence about the stocks to the surveyor and insurance company, but they have

not substantiated their statement by referring to any particular document etc.  In the light of these

facts, it is clear that the order passed by the State Commission vide which they have awarded a

sum of Rs.25,000/- to the complainant against the estimated figure of Rs.13,733.48ps. by the

surveyor, does not suffer from any illegality, irregularity or jurisdictional error.  The said order

has not been challenged by the insurance company by way of filing revision petition etc.

 

6.     Based on the discussion above, the impugned order passed by the State Commission is

upheld and the present revision petition is ordered to be dismissed with no order as to costs.Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER  

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 REVISION PETITION No. 3318 of 2013

(From the order dated 23.01.2013 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in Appeal no. 413 of 2009)

 

Chandan Singh Son of Shri Birkha Ram Resident of Village Qazipur Tehsil and District Jhajjar

                                      Petitioner

  Versus National Insurance Company Ltd. Regional Office, SCO Nos. 337-340 Sector 35 B, Chandigarh Through its Authorised Signatory Magma Shrachi Finance Ltd. 1st Floor, Narain Complex Civil Road, Rohtak

Respondents

 BEFORE:           HON’BLE MR JUSTICE V B GUPTA             PRESIDING MEMBER

          HON’BLE MRS REKHA GUPTA                                                 MEMBER

 For the Petitioner                 Mr S P Jha, Advocate with

                                        Mr Vikrant Bhardwaj, Advocate  Pronounced on       10 th   October     2013  

ORDERREKHA GUPTA 

                Revision petition no. 3718 of 2013 has been filed against the order dated 23.01.2013

passed by the Haryana State Consumer DisputesRedressal Commission, Panchkula (‘the State

Commission’) in First Appeal no. 413 of 2009.

        The brief facts of the present case as conveyed from the record that truck bearing

registration no. HR 46 C 9534 of the complainant/ petitioner was insured with the respondent /

opposite party no. 1/ insurance company with effect from 24.05.2005 to 23.05.2006. On

14.12.2005 when the truck was on its way from Yamuna Nagar to Rajkot and reached

near Mehla on NH No. 8, the front tyre of the truck burst due to which truck caught fire and

burnt. Rapat no. 569 dated 14.12.2005 was lodged with the concerned police. Upon intimation,

the insurance company appointed a surveyor/ loss assessor of the company namely Shri K S

Hans, who inspected the vehicle and assessed the damage/ loss of the vehicle in the following

manner:

        On Repair Basis                           Rs.13,41,637/-

        On Total Loss Basis                      Rs.  7,98500/-

        On net of salvage basis                        Rs.  6,23,500/-

        In view of the above assessments, the surveyor recommended the loss on net salvage basis

subject to the terms and conditions of the policy. However, the claim submitted by the petitioner

was repudiated by the insurance company on the ground that at the time of obtaining the

insurance policy, the petitioner did not disclose that the petitioner had obtained the claim during

the subsistence of the previous policy on his insured truck and thus by fraudulent means the

complainant/ petitioner illegally got 20% discount as “No Claim Bonus” qua the premium of the

policy. Forced by these circumstances, the petitioner invoked the jurisdiction of the District

Consumer Forum by filing a complaint.

        Upon notice, the opposite parties appeared and contested the complaint by filing their

separate written statements. The Insurance Company in their separate written statement justified

the repudiation of petitioner’s claim on the ground stated in the preceding paragraph of this order

and prayed for dismissal of the complaint.

        Respondent no. 2/ Opposite party no. 2 – Magma Shrachi Finance Limited in their separate

written statement stated that the petitioner had taken a loan of Rs.9,55,261/- from it and the

petitioner always remained irregular in making the repayment of the loan amount. The last

instalment was to be paid on or before 01.04.2007 and the total receivable amount was

Rs.10,70,762/-. The execution of agreement and payment of subsequent instalments all had

happened beyond the territorial jurisdiction of the District Forum and therefore, the District

Forum had no territorial jurisdiction to entertain the complaint, it was prayed that the complaint

merited dismissal.

        On appraisal of the pleadings of the parties and the evidence adduced on the record, the

District Consumer Disputes Redressal Forum,Jhajjar (‘the District Forum’) accepted the

complaint and granted the following reliefs:

“.........we, therefore, direct the respondent no. 1 to pay the insured amount i.e., Rs.8,00,000/- to the respondent no. 2 at once and respondent no. 2 is then directed to deduct their amount outstanding against the complainant and make the payment of balance amount to the complainant without any delay. Respondent no. 1 is further directed to calculate the interest @ 9% per annum on the amount of Rs.8,00,000/- from the date of filing of complaint i.e., 26.11.2007 till realisation of final payment and pay it to the complainant on account of deficiency in service caused to him. The order be complied within one month. Accordingly, the present complaint stands disposed of”.

The State Commission in their order dated 23.01.2013 came to the conclusion that “the facts of the instant case are fully attracted to the authoritative pronouncements of Hon’ble Apex Court and the National Commission cited (supra). From the evidence produced by the appellant – opposite parties it is well established on the record that the complainant/ petitioner had submitted a false declaration Ex R 9 and took benefit of 20% rebate as ‘No Claim Bonus’ by fraudulent means. District Forum has failed to appreciate the above stated cogent and convincing evidence and erred in allowing the complaint. Hence, the impugned order cannot be allowed to sustain.

As a sequel to our aforesaid discussion, this appeal is accepted, impugned order is set aside and the complaint is dismissed”.

Hence, the present revision petition.

Along with the present revision petition an application for condonation of delay of 90

days has been filed. However, as per the office report, there is a delay of 139 days. Counsel for

the petitioner could not give the date from which date 90 days had been calculated.

        The reasons given for the delay are as under:

         On 31.01.2013, the certified copy of impugned order was dispatched from the office

of State Commission however, this was served upon the petitioner on the 3rd week of

February 2013.

         In between March to August 2013, the petitioner was confined to bed on account of

various ailments, including the advance age of the petitioner coupled with the shocking

information of dismissal of his complaint when the petitioner is at the double loss, one

that he has lost his vehicle and second the compensation awarded by the District Forum

was set aside by the State Commission.

         In the month of September 2013, petitioner ultimately collected the case file

including the entire documents from his advocate at Chandigarh and started arranging the

requisite fund for preparing the present petition before this Commission. Thus, in that

process a delay of 90 days have been caused in filing the present petition before this

Commission.

We have heard the learned counsel for the petitioner and have gone through the records

of the case carefully.

The petitioner has failed to give date on which the impugned order dated 23.01.2013 was

received. Though it is admitted by the petitioner that it was despatched on 31.01.2013, but he

could not give any evidence to support the fact that it was received by him in the 3 rdweek of

February 2013.

Counsel for the petitioner has stated that the petitioner is in an advanced age and is 77

years of old. This was a blatant contradiction of the fact that in his affidavit the petitioner has

given his age as 65 years. The petitioner has also failed to mention the various ailments that he

has been suffering from and the plea of bad health and having been confined to bed is not

supported by any medical certificate. In fact in his application for condonation of delay without

any explanation he has jumped from 3rd week of February when he received the impugned order

of 23.01.2013 to September 2013 when he ultimately collected the case file including the entire

documents from the Advocate at Chandigarh.

Revision petition was thereafter filed on 17.09.2013. The petitioner has failed to give

day-to-day explanation for the delay of 139 days. The petitioner has also failed to provide

‘sufficient cause’ to condone the delay of 139 days. This view is further supported by the

following authorities:

The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that:

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”. 

In Balwant Singh Vs.  Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:                    

“The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”.

            In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;

 “It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to thecondonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.” Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;

         “There is no denying the fact that the expression sufficient cause should

normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

 

Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 139 days

in filing the present revision petition. The application for condonation of delay is without any

merit as well as having no legal basis and is not maintainable. Consequently, the present revision

petition being time barred by limitation and is dismissed with cost of Rs.5,000/- (Rupees five

thousand only).

Petitioner is directed to deposit the cost of Rs.5,000/- in the name of ‘Consumer Legal

Aid Account of this Commission’ within four weeks from today. In case the petitioner fails to

deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per

annum till realisation.

        List on 22nd November, 2013 for compliance.

Sd/-

..………………………………[ V B Gupta, J.]  Sd/-………………………………..[Rekha Gupta] Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO.   2451 OF 2011 (From the order dated 07.04.2011 in Appeal No. 4220/2010 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

                                                          With IA/1686/2013 (Placing Addl. documents)             Shivashankar S/o Malkappa,Aralaguppi R/o Taluk Office Board Hangal, Haveri District Karnataka State

                                                     …Petitioner/Complainant       

Versus

1. Bajaj Allianz General Insurance Co. Ltd. 4th Floor, Kalburgi Mansion, Lamington Road, Hubli, Now rep. by Bajaj Allianz General Insurance Co.Ltd. 31, Ground Floor, TBR Tower, 1st Cross, New Mission Road, Adjacent to Jain College, Bangalore 2. The Manager, Karnataka Bank Ltd. Hangal, Haveri District, Karnataka State

                                   …Respondents/Opp. Parties (OP)

 BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

 

For the Petitioner        :    Mr. Manish Gupta, Proxy Counsel

                                      For Mr. Anand Sanjay M. Nuli, Advocate

For the Res. No. 1     :     Mr. Priyadarshi Gopal, Advocate

For the Res. No.   2    :    Deleted

PRONOUNCED   ON     11 th   October,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioner against the order dated 07/04/2011

passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short,

‘the State Commission’) in Appeal No. 4220 of 2010 – M/s. Bajaj Allianz Gen. Ins. Co. Ltd.

Vs. Shivashankar & Anr. by which, while allowing appeal, order of District Forum allowing

complaint was set aside.

2.      Brief facts of the case are that Complainant/petitioner, owner of passenger van KA-27/8744

got it insured from OP No. 1/Respondent No. 1 for a period of one year from 4.8.2008 to

3.8.2009. The vehicle was financed by OP No. 2/Respondent No. 2.  Vehicle met with an

accident on 22.7.2009 at 4 A.M.  FIR was lodged and intimation was given to OP No.

1.  Complainant incurred expenses of Rs.1,99,035/- in repairs and submitted claim which was

repudiated by OP No. 1. Alleging deficiency on the part of OPs, complainant filed complaint

before District Forum.  OP No. 1 resisted complaint and submitted that vehicle was driven

by Umesh at the time of accident who was not possessing valid driving licence.  It was further

submitted that vehicle was carrying 19 passengers against the capacity of 12 passengers and in

such circumstances; claim was rightly repudiated and prayed for dismissal of complaint. OP No.

2 submitted that no claim has been filed against him and prayed for dismissal of complaint.

District forum after hearing both the parties, allowed complaint partly and directed OP No. 1 to

pay 75% of the assessed damages of Rs.86,982/- along with 9% p.a. interest and further awarded

Rs.5,000/- towards mental agony and Rs.5,000/- towards cost of the complaint.  

Appeal filed by the OP No. 1 was allowed by State Commission vide impugned order against

which, this revision petition has been filed.

3.      Respondent No. 2 was deleted on the request of petitioner.

4.      Heard learned Counsel for the parties finally at the admission stage and perused record.

5.      Learned Counsel for the petitioner submitted that at the time of accident, vehicle was

driven by Bairappa and learned District Forum rightly allowed complaint, but learned State

Commission has committed error in allowing appeal on the ground that the vehicle was being

driven by Umesh, who was not possessing valid driving licence; hence, revision petition be

allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent

submitted that order passed by learned State Commission is in accordance with law; hence,

revision petition be dismissed.

6.      It is not disputed that petitioner’s vehicle was insured by Respondent No. 1 and vehicle met

with an accident during subsistence of insurance policy and petitioner incurred expenses in

repairs of the vehicle.

7.      Now, the main question is who was driving the vehicle at the time of accident.   In FIR

lodged by one injured Basavaraj, it has specifically been mentioned that vehicle was driven

by Umesh. It appears that after investigation, challan was filed against Bairappa instead

of Umesh. In FIR, this fact has specifically been mentioned that driver himself sustained

injuries.  Injured persons filed MACT claim and Motor Accident Tribunal decided all claims by

order dated 29.11.2011 and held that Insurance Company is not liable to pay compensation as

vehicle was driven by Umesh at the time of accident who was not holding any driving licence to

drive the said vehicle.  During the course of arguments, learned Counsel for the petitioner

admitted that no appeal has been filed by the petitioner against the order of Motor Accident

Tribunal.  In such circumstances, it can be very well inferred that at the time of

accident, Umesh was driving vehicle who was not holding driving licence to drive the

vehicle.   Learned State Commission has not committed any error in holding that Umesh was

driving the vehicle and he also sustained injuries.

8.      Petitioner has not placed on record injury report of Bairappa which could have proved the

fact that Bairappa was driving the vehicle at the time of accident and in such circumstances; it is

proved that Umesh was driving the vehicle at the time of accident. Petitioner has also not placed

on record driving licence of Umesh.  As there was violation of terms and conditions of insurance

policy, learned State Commission rightly allowed appeal and dismissed complaint.

9.      We do not find any illegality, irregularity or jurisdictional error in the impugned order and

revision petition is liable to be dismissed.

10.    Consequently, revision petition filed by the petitioner is dismissed with no order as to

costs.  

 ………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER ..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO.   292 OF 2012 (From the order dated 11.10.2011 in Appeal No. A/11/423 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

                                                          Oriental Insurance Co. Ltd. Through its Authorized Signatory 88, Janpath, New Delhi

                                                       …Petitioner/Opp. Party (OP)    

Versus

Shri Pradip Deoram Jadhav Shrikrishna Colony Vinchur Road, Yeola Tal Yeola, District Nashik

                                                  …Respondent/Complainant BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner        :    Ms. Neerja Sachdeva, Advocate

For the Respondent  :      Mr. Sunil Kumar Ojha, Advocate

PRONOUNCED   ON     11 th   October,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioner against the order dated 11.10.2011

passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short,

‘the State Commission’) in Appeal No. A/11/423 – Oriental Ins. Co.

Ltd. Vs. PradipDeoram Jadhav by which, while dismissing appeal, order of District Forum

allowing complaint was upheld.

 

2.      Brief facts of the case are that Complainant/Respondent purchased Family Floater Policy

No. 164000/48/11/00178 from OP/Petitioner and it was valid for the period 16.8.1999 to

15.8.2000.  It was further submitted that OP-Development Officer apprised him about new

policy named Family Floater Policy.  He applied for it and OP issued policy on 28.4.2010.  It

was further submitted that as he was not feeling well on 28.4.2010, he went to Dr. Muley for

general check-up who advised him to contact Dr. Manoj B. Chopada Nashik.  He

contacted Dr. Chopadawho advised him to undergo Angiography and Angioplasty which was

performed on 29.4.2010.  He incurred expenditure of Rs.2,50,000/-, but his claim was repudiated

by OP on the ground that he suppressed the fact of suffering from BP, though, he was not the

patient of BP and did not take any medicine.  Alleging deficiency on the part of OP, complainant

filed complaint before the District forum.  OP contested complaint and submitted that

complainant was suffering from hypertension since 4 years and he had not disclosed this fact;

hence, claim was rightly repudiated and prayed for dismissal of complaint.  Learned District

Forum after hearing both the parties allowed complaint and directed OP to pay Rs.2,00,000/-

along with 9% p.a. interest and further awarded Rs.15,000/-for mental agony and Rs.1,000/-

towards cost of litigation.  Appeal filed by the OP was dismissed by learned State Commission

vide impugned order against which, this revision petition has been filed. 

3.      Heard learned Counsel for the parties and perused record. 

4.      Learned Counsel for the petitioner submitted that impugned order is not a speaking order

and further submitted that inspite of material on record about complainant disease, Learned

District forum committed error in allowing complaint and learned State Commission further

committed error in dismissing appeal; hence, revision petition be allowed and impugned order be

set aside.  On the other hand, learned Counsel for the respondent submitted that order passed by

learned State Commission is in accordance with law; hence, revision petition be dismissed.

5.      Perusal of record clearly reveals that complainant obtained policy on 28.4.2010 and on the

very day he contacted Dr. Chopada who advised him to undergo Angiography and Angioplasty

and the next day this was performed.  Perusal of record further reveals that in proposal form

complainant submitted that he was in good health and denied every sort of disease, whereas

complainant was suffering from hypertension since last 4 years.  Learned State Commission

observed that merely by filing certain photo copies, is not synonymous to tendering of evidence

and disputed fact is not at all established.  In our opinion, aforesaid order of State Commission is

not in accordance with law, as complainant himself admitted in the complaint that on the day of

obtaining policy, he was not feeling well and contacted Dr.Chopada who advised him to undergo

Angiography and Angioplasty and on the next day the Angiography and Angioplasty was

performed. Learned State Commission ought to have discussed documents filed by the parties

before the District forum and should have passed reasoned order.   

6.      Apparently, the aforesaid order is not a speaking order whereas it has been observed by

the Hon’ble Apex Court in in (2001) 10 SCC 659 – HVPNL Vs. Mahavir as under:“1.In a number of cases coming up in appeal in this Court, we find that

the State Consumer Disputes Redressal Commission, Haryana at

Chandigarh is passing a standard order in the following terms:

 

‘We have heard the Law Officer of HVPN – appellant and have

also perused the impugned order.  We do not find any legal

infirmity in the detailed and well-reasoned order passed by District

Forum, Kaithal. Accordingly, we uphold the impugned order and

dismiss the appeal’.

 

 2. We may point out that while dealing with a first appeal, this is not the

way to dispose of the matter.  The appellate forum is bound to refer to the

pleadings of the case, the submissions of the counsel, necessary points for

consideration, discuss the evidence and dispose of the matter by giving

valid reasons.  It is very easy to dispose of any appeal in this fashion and

the higher courts would not know whether learned State Commission had

applied its mind to the case. We hope that such orders will not be passed

by the State Consumer DisputesRedressal Commission, Haryana at

Chandigarh in future. A copy of this order may be communicated to the

Commission”.

 

 

7.      In the light of aforesaid judgment, we deem it appropriate to remand the matter back to the

State Commission for disposal of appeal by a reasoned speaking order. 

8.      Consequently, revision petition filed by the petitioner is allowed and impugned order dated

11.10.2011 in Appeal No. A/11/423 – Oriental Ins. Co. Ltd. Vs. Pradip Deoram Jadhav is set

aside and matter is remanded back to the State Commission for disposal of appeal by a speaking

order by giving opportunity of being heard to both the parties.

 

9.      Parties are directed to appear before the State Commission on 27.11.2013. ………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO.   2529 OF 2008 (From the order dated 22.11.2007 in Appeal No. 1157/2006 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Circuit Bench at Tirupati)

                                                          New India Assurance Co. Ltd. Delhi Regional Office-I, Level-5, Tower-II, Jeevan Bharti, Connaught Circus New Delhi – 110001 Through Authorized Representative

                   …Petitioner/Opp. Party (OP)

VersusAnumula Venkateswarlu S/o Late A. Subbaiah, R/o D. No. 19/307, Petra, Kurnool, Andhra Pradesh

                          …Respondent/Complainant

 BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner        :    Mr. Ajit K. Singh, Advocate

For the Respondent    :    NEMO

PRONOUNCED   ON     23 rd   October,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioner against the order dated 22.11.2007

passed by the Andhra Pradesh State Consumer DisputesRedressal Commission, Circuit Bench

at Tirupati (in short, ‘the State Commission’) in Appeal No. 1157of 2006 – The New India

Assurance Co. Ltd. Vs.Anumula Venkateswarlu by which, while dismissing appeal, order of

District Forum allowing complaint was upheld.

 

2.      Brief facts of the case are that Complainant/respondent’s lorry AP 21 6756 was insured by

OP/petitioner and insurance coverage was valid upto 6.9.2004. On 6.7.2004, vehicle met with an

accident. Complainant submitted claim documents to the OP, but claim was repudiated on the

basis that the driver of the vehicle was not holding valid driving licence and vehicle was used for

carrying passengers at the time of accident; though, driver was having LMV licence. Alleging

deficiency on the part of OP, complainant filed complaint before District Forum.  OP resisted

complaint and submitted that driver of the vehicle was not holding valid and effective driving

licence to drive lorry. He was having driving licence to drive LMV, but not the transport vehicle

and claim was rightly repudiated and prayed for dismissal of complaint.  Learned District Forum

after hearing both the parties allowed complaint and directed OP to pay Rs.1,95,405/- along with

interest and further awarded Rs.25,000/- as compensation. Appeal filed by the petitioner was

dismissed by learned State Commission vide impugned order against which, this revision

petition has been filed. 

3.      None appeared for the respondent even after service. 

4.      Heard learned Counsel for the petitioner and perused record. 

5.      Learned Counsel for the petitioner submitted that as driver of the vehicle was not

possessing valid driving licence at the time of accident, petitioner rightly repudiated the claim,

but learned District Forum has committed error in allowing complaint and learned State

Commission further committed error in dismissing appeal; hence, revision petition be allowed

and impugned order be set aside. 

6.      Perusal of record clearly reveals that at the time of accident, driver of the vehicle

was possessing only LMV licence, whereas vehicle in question was transport vehicle. Learned

District Forum while allowing complaint held that when driver of the vehicle was having licence

to drive LMV then the nature of vehicle was whether; transport vehicle or non-transport vehicle

was immaterial.  Apparently, this reasoning given by District Forum while allowing complaint is

contrary to law laid down by the Apex Court.

7.      Learned District Forum has also placed reliance on judgement of Hon’ble Apex Court in

2001 (1) ALJ 312 – Ashok   Gangadhar   Maratha  Vs. Oriental Insurance Co. Ltd., but that

judgement has been distinguished by Hon’ble Apex Court in I (2008) CPJ I (SC) – New India

Assurance Co. Ltd. Vs. PrabhuLal and it was held that if driving licence does not contain

endorsement of transport vehicle in the licence, driver cannot be held to be possessing valid

driving licence to ply transport vehicle.  The driver in the case in hand was in possession of

licence for driving LMV.  Thus, it becomes clear that  for driving transport vehicle, endorsement

of  transport vehicle is required in the driving licence without which driver cannot drive transport

vehicle and it would be treated that driver of the vehicle was not possessing valid driving

licence.  If it is held that driver was not possessing valid driving licence at the time of accident,

insurance company was within its rights to repudiate the claim for damages to the vehicle and

petitioner has not committed any deficiency in repudiating the claim for damages to the

vehicle.  Learned District Forum has committed error in allowing complaint and learned State

Commission has further committed error in dismissing appeal and revision petition is to be

allowed. 

8.      Consequently, revision petition filed by the petitioner is allowed and impugned order dated

22.11.2007 passed by learned State Commission in Appeal No. 1157of 2006 – The New India

Assurance Co. Ltd. Vs. Anumula Venkateswarlu and order dated 23.3.2006 passed by District

Forum in CD No. 157/2005 –Anumula Venkateswarlu Vs. New India Assurance Co. Ltd. are set

aside and complaint stands dismissed with no order as to costs.  

 ………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   2019 OF 2008

(From the order dated 27.12.2007 in First Appeal No. 6 & 23/2006 of Assam State Consumer Disputes Redressal Commission)

 

Sri Anil Chandra Dey s/o Prasanna Kumar Dey Satsangh Ashram Road, P.O. – Silchar – 7, P.S. Silchar District – Cachar (Assam)

                         ...  Petitioner

  Versus

1.   The New India Assurance Co. Ltd. Registered Office at New India Assurance Building 87, Mahatma Gandhi Road, Mumbai – 400001 (Maharashtra) 

2.   The Divisional Manager, The New India Assurance Co. Ltd. Capital Travels Building, Club Road P.O. – Silchar – 1, P.S. Silchar District – Cachar (Assam)

                        … Respondent(s)

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 APPEARED AT THE TIME OF ARGUMENTS

 For the Petitioner(s)   Mr. Shuvodeep Roy, Advocate 

For the Respondent(s)   Mr. Mohan Babu Agarwal, Advocate

 

PRONOUNCED   ON :   23 rd   OCTOBER     2013 O R D E R 

PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 against the impugned order dated 27.12.2007 passed by the Assam State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 6/2006, “New

India Assurance Co. versus Anil Chandra Dey” and FA No. 23/2006, “Anil Chandra Dey versus

New India Assurance Co. Ltd. & Anr.” Both these appeals were directed against the order passed

by the District Forum on 12.12.2005 on the complaint filed by Anil Chandra Dey vide which a

sum of Rs.2,10,000/- was ordered to be paid by the OP insurance company to the complainant

for damage to his residence during floods along with interest @9% p.a. and Rs.7,000/- as

compensation for mental agony and Rs.2,000/- as cost of litigation.  Vide impugned order, the

appeal no. 23/2006 filed by the complainant for enhancement of compensation was dismissed,

whereas the appeal filed by the insurance company was partly allowed and it was directed to pay

a sum of Rs.97,000/- as cost of damage along with Rs.3,000/- as compensation for mental agony

along with interest @ 8% p.a. from the date of the claim till realisation.

 

2.     Brief facts of the case are that the complainant/petitioner Amit Chandra Dey got his

residential house insured with the OP, New India Assurance Co. Ltd. vide policy no.

530600/48/01/0045 for the period 29.06.2004 to 28.06.2005 against fire, flood, earthquake,

etc.  It has been mentioned in the complaint that the residential building and the household goods

like, furniture, fittings, personal effects, books etc. were got insured for a sum of Rs.12.6

lakh.  The insurance company, however, says that the said building and articles were insured for

a sum of Rs.8.6 lakh.  In the month of July, 2004, the said premises were badly affected by

floods.  It has been stated that the flood water remained stagnant at the premises from 20.07.2004

to 03.08.2004, causing lot of damage to the building as well as the household articles.  The

complainant informed the insurance company on 21.07.2004 about the flood.  The insurance

company deputed a surveyor N.R. Paul for assessing the loss and damage, who visited the

residence of the complainant on the same day.  The said surveyor assessed the loss to be

Rs.30,050/-. The insurance company sent a letter to the complainant on 07.01.2005, asking him

to accept the amount of Rs.30,050/- as full and final settlement, but the complainant refused to

accept the amount, saying that the assessed amount was much less than the loss suffered by

him.  He requested the insurance company to reconsider the assessment, but his request was

turned down by the OP, insurance company.  The complainant then filed a consumer complaint

before the District Forum Cachar, claiming an amount of Rs.2,83,500/-alongwith interest

@12.5% and compensation for mental agony etc.  The District Forum vide their order dated

12.12.2005 asked the insurance company to pay a sum of Rs.2,10,000/- along with interest @9%

p.a. from the date of complaint and also to pay Rs.7,000/- for mental agony, etc. and Rs.2,000/-

as cost of litigation.  Against this order, two appeals as stated above were filed before the State

Commission. The appeal filed by the complainant for enhancement of compensation was

dismissed and the appeal filed by the insurance company was partly allowed and the State

Commission ordered to pay a sum of Rs.97,000/- for damage and Rs.3,000/- for mental agony

along with interest @8% p.a. on all these amounts.  It is against this order that the present

petition has been filed by the complainant.

 

3.     At the time of hearing before us, learned counsel for the petitioner has drawn our attention

to the contents of the insurance policy in question, saying that the damage caused by the floods

to the building as well as to the household articles is fully covered under the policy and adequate

compensation should have been paid by the insurance company to him.  Referring to the report

of the surveyor, the learned counsel stated that the said report is not conclusive as held by

the Hon’ble Supreme Court in “New India Assurance Co. Ltd. versus Pardeep Kumar” [(2009) 7

SCC 787], in which it has been held that the approved surveyor’s report may be basis or

foundation for settlement of a claim by the insurer in respect of loss suffered by insured, but such

report is neither binding on the insurer nor insured.  Learned counsel maintained that the factual

position about the floods and the consequential damage had not been disputed by the other party

and the order of the State Commission also shows that the factum of damage was an admitted

fact.  Learned counsel further stated that the claim made by the petitioner was supported by

documentary evidence and photographs taken during the days of the floods.  He had also

produced concerned contractor before the District Forum who made a statement that he had done

the repair works in the premises for which bill for Rs.1,43,000/- was raised and the money had

also been received by the contractor.

 

4.     Learned counsel for the respondent insurance company stated that the District Forum had

not given any reasons for coming to the conclusion that the complainant was entitled to get a

sum of Rs.2.5 lakh for compensation for damage.  They made an appeal against the order of the

District Forum but they had not challenged the impugned order passed by the State Commission

and payment had also been made as per the order passed by the State Commission.  The learned

counsel further stated that the State Commission had come to the right conclusion that boundary

wall was not part of the residential building and hence, compensation could not be given for

damage to the boundary wall.  Learned counsel pleaded that the revision petition should be

dismissed.

 

5.     We have examined the material on record and given a thoughtful consideration to the

arguments advanced before us. 

6.     A careful perusal of the order passed by the State Commission has revealed that the State

Commission has discussed the amounts claimed by the petitioner under various items, the

corresponding amount indicated by the surveyor against each item and then arrived at a figure

for award of damage against each item.  The State Commission have indicated that while

arriving at the awarded amount, they have taken into account the surveyors’ report, the

photographs, the contractors bill, money receipts, etc.  The State Commission reached the

conclusion that a sum of Rs.97,000/- should be given to the petitioner against the claim for

Rs.2,83,500/- filed by him.  Although, no scientific explanation has been given for arriving at a

figure against each item, but on the other hand, the petitioner has also failed to provide any

documentary proof which may lead to the conclusion that he is entitled to get compensation to

the tune of Rs.2,83,500/-. Even at the time of arguments, learned counsel for the petitioner could

only say that they had some supporting documents for the repair work amounting to

Rs.1,43,500/- only.

 

7.     On the item regarding repairing, flooring and plastering of the house, the State Commission

has awarded an amount of Rs.32,000/-, against the claimed amount of Rs.73,500/- whereas the

amount assessed by the surveyor is only Rs.14,250/-.  It is felt that since the water remained

stagnant in the house in question for a number of days, the petitioner may have spent

more amount on repairing, flooring and plastering etc.  It is felt that a further amount of

Rs.20,000/- more may be awarded to the petitioner against this item, making the total amount of

compensation to be Rs.1,17,000/- in addition to Rs.3,000/- already awarded as compensation for

mental agony.  This petition is, therefore, partly allowed and it is ordered that a sum of

Rs.20,000/- more shall be payable to the petitioner on account of repair, flooring and plastering

of the house.  There shall be no order as to costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER  

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   1933 OF 2013  (From the order dated 17.01.2013 in Appeal No. 2312 of 2010 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

WITH IA/3169/2013 (CONDONATION OF DELAY)

Duli Chand S/o Sh. Ami Lal R/o- 55-56, Sector-12 L Hanumangarh Junction Hanumangarh

                    …  Petitioner

VersusThe New India Assurance Co. Ltd. Through Jaipur Regional Office, 2nd Floor, Nehru Place, Tonk Road, Jaipur

…  Respondent

 BEFORE:

HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBERHON’BLE DR. B. C. GUPTA, MEMBER    

For the Petitioner                   : Mr. Amit Singh, Advocate

 PRONOUNCED   ON :       25 th     OCTOBER, 2013 O R D E R 

PER HON’BLE MR. JUSTICE K. S.   CHAUDHARI,   PRESIDING     MEMBER  

This Revision Petition has been filed by the petitioner against impugned order dated17/01/2013, passed by the State Commission Rajasthan in Appeal No. 2312/2010, The New India Assurance Co. Ltd. vs. Duli Chand, by which while allowing the appeal, order of the District Forum allowing complaint was set aside.

2.      Brief facts of the case are that complainant/petitioner had taken a Carrier’s Legal Liability Policy for his tanker no.  RJ13G6715 and he attached his tanker with M/s. S. D. Ganesh Gadia Filling Station, who was the contract carrier of Indian Oil Corporation.  On 27.12.2008, complainant’s tanker was carrying 20,000 lt. of diesel, met with an accident and diesel barring 242 lt. was destroyed.  Complainant lodged claim with the Opposite Party, which was repudiated on the ground that at the time of accident, complainant was not acting as a carrier.  Alleging deficiency on the part of the Opposite Party, complainant filed complaint before the District Forum.  Opposite Party resisted complaint and submitted that as complainant was not acting as a carrier at the time of accident, Opposite Party rightly repudiated the claim and prayed for dismissal of complaint.  Learned District Forum after hearing both the parties allowed the complaint and directed the Opposite Party to payRs. 6,55,098/- alongwith 8% p.a. interest and further awarded Rs. 5,000/- for mental agony and Rs. 1,000/- as litigation expenses.  Appeal filed by the Opposite Party was allowed by the State Commission vide impugned order against which this Revision Petition has been filed alongwith application for condonation of delay.

3.      Heard learned counsel for the petitioner at admission stage and perused record.

4.      Petitioner has filed application for condonation of delay for 18 days.  As there is delay of only 18 days, we allow application for condonation of delay and delay stands condoned.

5.      Learned counsel for the petitioner submitted that as petitioner was insured with the respondent and was carrying diesel and met with an accident, petitioner was entitled to get indemnified and the District Forum rightly allowed the claim but the State Commission has committed error in allowing the appeal, hence Revision Petition be admitted.

6.      Learned counsel for the petitioner admitted that petitioner had no contract with the Indian Oil Corporation but petitioner’s tanker was attached with M/s. S. D. Ganesh Gadia Filling Station, who had contract of carrying oil of Indian Oil Corporation.  Thus it becomes clear that the petitioner had no carriage contract with Indian Oil Corporation and in such circumstances, petitioner was not entitled to get any compensation for loss of diesel due to accident.  The State Commission rightly placed reliance on I (2012) CPJ 267 (NC) National Insurance Company Ltd. vs. Mehboob Khan while allowing appeal. 

7.      We do not find any irregularity, illegality or jurisdictional error in the impugned order and Revision Petition is liable to be dismissed at admission stage.

8.      Consequently, Revision Petition filed by the petitioner is dismissed at admission stage, with no order as to costs.

  ..……………………………

(K. S. CHAUDHARI)

PRESIDING MEMBER..……………………………

(DR. B.C. GUPTA)

  MEMBERPSM

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   1327 OF 2007 (From the order dated 19-01-2007 in First Appeal No. 646 of 2003 of the State Consumer Disputes Redressal Commission, Tamil Nadu)

 

V. Perumalsamy S/o Veerasamy, 35, East Street, Theni – 626531, Tamil Nadu

                                               … Petitioner/Complainant

         Versus

1.  The Branch Manager, Life Insurance Corporation of India, Periyakulam Branch, Vaigaidam Road, Periyakulam – 625601. Tamil Nadu 2.  The Divisional Manager, Divisional Office, Life Insurance Corporation of India, “Jeevan Prakash” Bridge Station Road, P.O. Box No. 16, Sellur, Madurai – 625002 Tamil Nadu

                               … Respondents /Opposite Parties

BEFORE: 

HON’BLE MR. JUSTICE K.S. CHAUDHARI,  PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 For the Petitioner                             : Mr. G.S. Mani, Advocate

 For the Respondent              : Ms. Pankaj Bala Verma, Advocate

 PRONOUNCED ON       25 th       OCTOBER, 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

This revision petition has been filed by the petitioner against impugned order dated 19-

01-2007 passed by the learned State Consumer Disputes Redressal Commission, Tamil Nadu (in

short, ‘the State Commission’) in Appeal No. 646 of 2003 – The Branch Manager, Life

Insurance Corporation of India &Anr. Vs Perumalsamy, by which while allowing the appeal,

order of the District Forum allowing the complaint was set aside.

2.      Brief facts of the case are that complainant/petitioner obtained two policies from opposite

party/respondent on 28-11-1995 and 28-09-1998 respectively each for a sum of Rs. One

lakh.  As per policies, complainant was eligible to receive medical expenses up to 50% of the

amount of  policy with bonus. Complainant was admitted   at  Apollo   Hospital,  Chennai   and

he underwent  bypass  surgery  on  11-12-2000  and   discharged  on 18-12-2000.  Complainant

requested opposite party to pay medical claim of the aforesaid two policies and the bonus but as

payment was not made, alleging deficiency on the part of the opposite party, complainant filed

complaint before District Forum.  Opposite parties resisted complaint and submitted that

complainant failed to disclose vital information about his health condition and complainant was

diabetic for the last eight years, hence complainant was not entitled to receive any claim and

prayed for dismissal of complaint.  Learned District Forum after hearing both the parties allowed

complaint and directed opposite party to pay Rs. One lakh under the two policies and Rs.20,000/-

as bonus amount along with 9% p.a. interest and further awarded cost of Rs.1,000/-.  Appeal

filed by the opposite party was allowed by learned State Commission vide impugned order

against which this revision petition has been filed.

3.      Heard learned Counsel for the parties and perused record.

4.      Learned Counsel for the petitioner submitted that as petitioner was not diabetic and has not

suppressed any disease in the Proposal Form, learned District Forum rightly allowed complaint

but learned State Commission has committed error in dismissing the complaint, hence revision

petition be allowed and impugned order be set aside.  On the other hand, learned counsel for the

Respondent submitted that order passed by learned State Commission is in accordance with law,

hence revision petition be dismissed.

5.      It is not disputed that complainant obtained two policies from respondent with bonus and as

per Benefit (B), 50% of the sum assured was payable on open heart bypass surgery along with

bonus of 10% of the sum assured.  It is also not disputed that in his personal history complainant

submitted that his state of health was good and he was not suffering from any disease.

6.      The basis of diabetes is only discharge summary given by Apollo Hospital, which reads as

under:--

          “This 46 years old gentleman, hormotensive, diabetic for 8 years, was

admitted with history of class II angina since 2 years for further cardiac

evaluation.  He was evaluated by cardiac cath and coronary angio which revealed

single vessel disease with normal LV function.  He was advised CABG surgery.”

7.      Respondent has not placed any documents on record for earlier treatment of diabetes taken

by the petitioner.  Learned counsel for the petitioner submitted that petitioner never revealed this

fact that he was diabetic for 8 years as he was not suffering from diabetes.  Merely on the basis

of earlier history recorded in the discharge certificate, it cannot be presumed that petitioner was

suffering from diabetes since last 8 years.

8.      Even if discharge summary is taken to be correct, first policy cannot be called in question

on the ground of mis-statement after 2 years as per Section 45 of the Insurance Act.  Admittedly,

first policy was issued in the year 1995 and petitioner has undergone surgery in December, 2000

meaning thereby after a period of 5 years and respondent has neither pleaded nor proved that

inaccurate or false statement about his health was made by the petitioner fraudently at the time of

obtaining policy. In such circumstances, petitioner is certainly entitled to get 50% of the sum

assured under the first policy, which was issued almost before 5 years.  As second policy was

issued on 19-01-1999 and petitioner has undergone surgery in December, 2000, he may not be

allowed to get 50% of the sum assured under the second policy.  Learned State Commission has

committed error in allowing appeal in toto and dismissing the complaint in toto though petitioner

was entitled to receive benefits under the first policy which was issued before 5 years. 

9.      Consequently, revision petition filed by the petitioner is partly allowed and impugned order

dated 19-01-2007 passed by learned State Commission in Appeal No. 646 of 2003 – The Branch

Manager, Life Insurance Corporation of India & Anr. Vs Perumalsamy is modified and order of

the District Forum dated 26-03-2003 is also modified and petitioner is held entitled to get

Rs.50,000/- along with Rs.10,000/- as bonus under the first policy with interest @ 9% p.a. from

18-12-2000 till the date of payment.  There shall be no order as to costs.

      .……………….………………

( K.S. CHAUDHARI, J)

PRESIDING MEMBER                                                                                                                                  

.……………….………………

( DR. B.C. GUPTA)

MEMBER aj

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO. 2786 OF 2008

(From the order dated 11.04.2008 in First Appeal No. 603/2005 of Tamil Nadu State Consumer Disputes Redressal Commission)

 

M/s. Sri Sarbati Steel Tubes Limited, No. 163/1, Broadway IInd Floor, Chennai – 600108.

                                               ...  Petitioner

  Versus

The Oriental Insurance Co. Ltd., Divisional Office VI Bali Tower, 1st Floor, No. 1, Abdul Razack Street, Saidapet, Chennai – 600015.

                                               … Respondent

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 APPEARED AT THE TIME OF ARGUMENTS

 For the Petitioner   Mr. Sandeep Bisht, Advocate 

For the Respondent   Ms. R.B. Shami, Advocate

 PRONOUNCED ON : 28 th   OCTOBER     2013 O R D E R 

PER DR. B.C. GUPTA, MEMBER

          This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 against the impugned order dated 11.04.2008 passed by the Tamil Nadu State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 603 / 2005,

“Oriental Insurance Co. Ltd. versus Sri Sarbati Steel Tubes Ltd.” vide which appeal against the

order dated 12.09.2005 passed by District Consumer Disputes Redressal Forum, Chennai (South)

was allowed, the order of the District Forum was set aside and the consumer complaint no.

295/2003, in question was ordered to be dismissed.

 

2.      Brief facts of the case are that the M/s. Sri Sarbati Steel Tubes Limited is a manufacturer of

Steel Tubes having its registered office at Chennai and its two factories at Pondicherry.  The

complainant / petitioner obtained a fire insurance policy bearing no. 411600/0/0/F/11010/2002

from the respondent / OP, Oriental Insurance Co. Ltd. (hereinafter referred to as ‘Insurance

Company’) covering the risk of building, plant and machinery against the loss / damage caused

by fire, storm, tempest, flood and inundation for its two factories at Pondicherry containing the

product division and tube division respectively for a period of one year from 28.05.2001 to

27.05.2002 and the total sum insured was `7,43,00,000/- at an annual premium of `1,00,055/-. On

10.05.2002, at around 4:00 PM, due to strong winds, coupled with storm and heavy rain in the

factory area, more than 100 asbestos sheets were blown off from the roof and the truss of the mill

section was badly damaged. The Insurance Company was duly intimated and the complainant

filed two claims with the Insurance Company for the loss / damage for ` 50,000/- and `

2,50,000/- respectively.  The OP appointed M/s. Crystal Surveyor, Pondicherry, who visited the

factory and submitted his preliminary report to the OP.  Subsequently, the OP appointed a

second surveyor, Mr. S. Jagadeeswaran.  The said surveyor asked the complainant to furnish

estimated cost of repair to the building, shed etc.  The complainant stated that a sum of

`1,81,888/- towards cost of material and `66,746/- towards cost of labour, the total being

`2,48,634/- had been spent on repairs.  The bills were furnished to the surveyor.  The said

surveyor, in his report estimated the total loss to be `1,10,077/- for the two divisions,

`88,912.50ps. was the estimate for the tube division and `2,11,64.38ps. was the estimate for the

flat division, including the labour charges.  The surveyor also estimated that there was under-

insurance to the extent of 51.9% in tube division and 76.8% in the flat division.  After accounting

for said percentage of under-insurance from the estimated value of loss / damage and after

deducting `10,000/- for excess, the surveyor reported that the net liability for the Insurance

Company was `37,677/- only.  The insurance company sent a loss discharge voucher for

`37,624/- by their letter dated 21.03.2003.  It is the case of the complainant that the said amount

was accepted under protest, whereas OP/ Insurance Company maintains that the amount was

accepted by the complainant in full and final settlement.  The petitioner/complainant filed the

consumer complaint in question before the District Forum, claiming an amount of `2,11,014/-

along with a sum of `25,000/- as compensation for mental agony and harassment and `5,000/- as

cost of litigation.  The District Forum after hearing the parties, passed their order on 12.09.2005,

allowing the complaint and directing the OP to pay a sum of `2,11,014/- alongwith interest @

9% p.a. from 24.03.2003 till realisation with cost of `2,000/-  Against this order, an appeal was

filed before the State Commission and vide impugned order dated 11.04.2008, the State

Commission set aside the order passed by the District Forum and dismissed the complaint.  It is

against this order that the present revision petition has been made.

 

3.      The line of argument taken by the learned counsel for petitioner says that the complainant

had received the amount sent to them by the Insurance Company under protest and not as full

and final settlement as stated by the OP.  Learned counsel stated that deduction could not be

made for under- insurance and the depreciation could also not be allowed as per the terms and

conditions of the Policy.  Moreover, the insurance company should not have appointed the

second surveyor to make report about the loss / damage.  The learned counsel stated that the

order passed by the District Forum was passed on sound reasoning and should be upheld,

whereas the State Commission had committed error in passing their judgement on the report of

the surveyor alone. 

 

4.      On the other hand, the learned counsel for the respondent / OP stated that the report of the

surveyor was based on sound reasoning and hence, it could not be brushed aside.  The said report

was prepared after checking the quantity of material replaced in the presence of an Assistant

General Manager of the complainant company.  The learned counsel has also drawn our attention

to a document issued by Insurance Institute of India, Mumbai entitled, “IC 56 Fire Insurance

Claim”.

 

5.      We have examined the material on record and given a thoughtful consideration to the

arguments advanced before us.  A perusal of the impugned order passed by the State

Commission reveals that they first dealt with the issue, whether the amounts sent by the OP to

the complainant had been accepted as full and final settlement or under protest.  The State

Commission reached the conclusion that in the absence of any document saying that the said

amount was accepted as full and final settlement, the version of the OP could not be believed and

the District Forum was right in upholding that the claim amount was not accepted as full and

final settlement.

 

6.      In so far as the quantum of compensation is concerned, the complainant had themselves

given an estimate of `2,48,634/- including `66,746/- as labour charges.  It is born out from the

report of the surveyor however, that he made 5 visits to the premises in question before making

his report, and the physical quantity of ACC sheets etc. replaced was checked in the presence of

Mr. Seshadri, AGM of the company.  After taking into account the cost of the material, the

labour charges, etc. the surveyor reached the conclusion that the loss assessed in the tube

division was `88,912.50 and that for the flat division was `21,164.38ps. and hence the total loss

was calculated to be `1,10,077/- against an estimate of `2,48,634/- provided by the

complainant.  The surveyor has also brought out the factum of under-insurance in this case and

came out with a figure of 51.9.% under-insurance for tube division and 76.8% of under-

insurance for flat division.  After accounting for these factors and deducting `10,000/- for excess,

the final amount of `37,677/- was calculated.  It is very clear from this report that the same is

based on sound reasoning and the complainant/petitioner has not been able to bring out any

deficiency or inconsistency in the said report.  In the document issued by the Insurance Institute

of India, it has been provided that while allowing claims in Fire Insurance Claim, the factum of

under-insurance has to be accounted for on pro-rata average basis. 

7.      Based on the discussion above, it is held that the order passed by the State Commission

does not suffer from any illegality, infirmity, irregularity or jurisdictional error and does not call

for any interference.  The order passed by the State Commission is, therefore, upheld.  The

revision petition is ordered to be dismissed with no order as to costs. 

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER 

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO.   1947 OF 2008 (From the order dated 30.7.2007 in Appeal No. 863/2006 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

                                                                                1. National Insurance Co. Ltd. Through M.D./Chairman, Regd. Office 3, Middleton Street Calcutta.2. National Insurance Co. Ltd. Through the Branch Manager Nagaur (Rajasthan) Through     Manager (Legal),3.National Insurance Co. Ltd. Regional Office “Jeevan Nidhi”, Bhawani Singh Road, Jaipur (Rajasthan) Through its Manager National Insurance Co. Ltd. 4th Floor, Jeevan Bharati Building, 124, Connaught Circus, New Delhi – 110001

                                   …Petitioners/Opp. Parties    

  Versus

Akhtar Bano W/o Mehboob Khan R/o Sipahiyon-Ka-Mohalla, Merta-City Rajasthan

                                                  …Respondent/Complainant BEFORE

 HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

 HON’BLE DR. B.C. GUPTA, MEMBER

 

For the Petitioner        :          Mr. R.C.S. Bhadoria, Advocate

                                      For Ms. Sonia Sharma, Advocate

For the Respondent    :Mr. Arvind Garg, Advocate with Mehboob Khan, husband of Respondent.

PRONOUNCED ON       28 th   October ,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

          This revision petition has been filed by the petitioners against the order dated 30.7.2007

passed by the Rajasthan State Consumer Disputes RedressalCommission, Jaipur (in short, ‘the

State Commission’) in Appeal No. 863/2006 – National Insurance Co.  Ltd. Vs. Akhtar Bano by

which, while allowing appeal partly, order of District Forum allowing complaint was modified.

 

2.      Brief facts of the case are that Complainant/Respondent’s Jeep No. RJ-21/T-0884 was

insured with OP/Petitioners for a period commencing from 28.12.2003 to 27.12.2004 for

Rs.4,29,400/-.  Vehicle met with an accident on 24.12.2004 and the vehicle was totally

damaged.  Claim was submitted by the complainant to the OP which was repudiated. Alleging

deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted

complaint and submitted that driver of the vehicle was not having a valid driving licence at the

time of accident and prayed for dismissal of complaint.  Learned District Forum after hearing

both the parties, allowed complaint and directed OP to pay a sum of Rs.4,07,930/- with interest

@ 9% p.a. and further allowed  cost of Rs.1,000/- as litigation expenses. Both the parties

preferred appeal before learned State Commission and learned State Commission dismissed

appeal filed by the complainant, but partly allowed appeal filed by the OP/petitioner and amount

of compensation was reduced to Rs.3,67,137/- from Rs.4,07,930/- against which, this revision

petition has been filed along with application for condonation of delay. 

3.      Heard learned Counsel for the parties and perused record. 

4.      This revision petition has been filed along with application for condonation of

delay.  Number of days has not been mentioned in the application, but as per office report, there

was delay of 171 days in filing revision petition.

5.      In the application for condonation of delay, petitioner submitted that copy of impugned

order was received by the petitioner on 8.8.2007 and the matter was referred to the Regional

Office of the Insurance Company at Jaipur, who further referred it to Head Office at Calcutta and

it was decided to file revision petition. Later on, file was sent to the Regional Office at New

Delhi, who marked the case to Counsel for preparation of the revision petition.  During

preparation of revision petition, it was observed that certain documents were in Hindi,

which were needed to be translated in English.  After receiving documents, revision petition was

prepared and sent for approval.  Insurance Company inserted certain changes in the draft and

modified revision petition was sent to Insurance Company for signatures and then this revision

petition was filed. It was further submitted that there had been some delay on the part of

Insurance Company even after exercising due diligence and pursuing the matter with all

seriousness and commitment so, delay may be condoned. 

6.      Perusal of application for condontion of delay reveals that no date has been given in the

application that when the file was sent to the Regional Office, then to Head Office, then back to

Regional Office and then to the Counsel for preparation of revision petition and then to

Insurance Company for signing revision petition. In the absence of any date for aforesaid

purposes in the application for condonation of delay, it cannot be ascertained at what level

inordinate delay was caused, but admittedly there is delay of 171 days in filing revision

petition.  No reasonable explanation has been given for condonation of inordinate delay of 171

days.  Merely by mentioning that file was moved from one office to another office, inordinate

delay of 171 days cannot be condoned. 

7.      As there is inordinate delay of 171 days, this delay cannot be condoned in the light of the

following judgment passed by the Hon’ble Apex Court. 

8.      In R.B.   Ramlingam  Vs. R.B.   Bhavaneshwari  2009 (2) Scale 108, it has   been observed:          “We hold that in each and every case the Court has to examine whether

delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

 

 

9.        In Ram   Lal   and   Ors .  Vs.  Rewa   Coalfields     Ltd ., AIR  1962 Supreme Court 361, it

has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

          

10.    Hon’ble Supreme Court after exhaustively considering the case law on the

aspect  of condonation of delay observed in Oriental Aroma Chemical Industries Ltd.

Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under;“We have considered   the respective    submissions.  The law of

limitation is founded on public policy. The   legislature does not

prescribe limitation with the object of destroying the rights of the

parties but to ensure that   they    do not resort to dilatory tactics

and seek remedy without delay. The idea is that every legal remedy

must be kept alive for a period fixed by the legislature. To put it

differently, the law of limitation prescribes a period within which

legal remedy can be availed for redress of the legal injury. At the

same   time, the courts are bestowed with the power to condone the

delay, if sufficient cause is shown for not availing the remedy

within the stipulated time.”       

 

 

11.    Hon’ble Apex Court in (2012) 3 SCC 563 – Post Master General &   Ors .   Vs. Living Media

India Ltd. and   Anr . has not condoned delay in filing appeal even by Government department and

further observed that condonation of delay is an exception and should not be used as an

anticipated benefit for the Government Departments. 

12.    Hon’ble Apex Court in 2012 (2) CPC 3 (SC) – Anshul   Aggarwal  Vs. New   Okhla   Industrial

Development Authority observed as under:“It is also apposite to observe that while deciding an application

filed in such cases for condonation of delay, the Court has to keep in

mind that the special period of limitation has been prescribed under

the Consumer Protection Act, 1986, for filing appeals and revisions

in Consumer matters and the object of expeditious adjudication of

the Consumer disputes will get defeated, if this Court was to

entertain highly belated petitions filed against the orders of the

Consumer Foras”.

 

13.    As there is no justification for condonation of inordinate delay of 171 days, application

for condonation of delay is liable to be dismissed.

 

14.    As application for condonation of delay has been dismissed and revision petition is barred

by limitation, revision petition is liable to be dismissed on the count of delay alone and we need

not to decide the matter on merits.

 

15.    Consequently, revision petition filed by the petitioner is dismissed as barred by limitation

with no order to costs.

 

 ……………Sd/-………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..…………Sd/-…………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 REVISION PETITION No. 2958 of 2013

(From the order dated 28.05.2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in Appeal no. 298 of 2011)

Smt Bala Devi Widow of Late Hawa Singh Resident of H No. 73 Village Dhandhlan Post Office Dighal Teshil Beri District Jhajjar, Haryana

Petitioner  VersusMetlife India Insurance Company Ltd. 1st India Palace, Near Sahara Mall Mehrauli Road, Gurgaon, India Through its Regional Manager Ajit son of Shri Rati Ram Resident of Panna Mulyan, Dighal District Jhajjar, Haryana

Respondents BEFORE:

          HON’BLE MR JUSTICE V B GUPTA             PRESIDING MEMBER

          HON’BLE MRS REKHA GUPTA                     MEMBER

 

For the Petitioner                 Mr Rajiv Mangla, Advocate Pronounced on                   October     2013

ORDERREKHA GUPTA

                Revision petition no. 2958 of 2013 has been filed under section 21 (b) of the Consumer

Protection Act, 1986 against the order dated 28.05.2012 of the Haryana State Consumer Disputes

Redressal Commission, Panchkula (‘the State Commission’) in First Appeal no. 298 of 2011.

        The facts of the case as gleaned from the order of the District Consumer Disputes Redressal

Forum, Jhajjar (‘the District Forum’) are that the complaint has been filed by the petitioner with

the averments that the husband of the petitioner Hawa Singh has purchased a life insurance

policy from the respondent no. 1 – Met Life Insurance Company (in short, ‘the insurance

company’) through respondent no. 2 – Ajit Singh under plan MET GROWTH for a sum of

Rs.1,20,000/- on 29.12.2008 and the petitioner being the nominee is legally entitled for the

benefits qua the policy after death of her husband on 26.03.2009 who had expired due to sudden

cardiac arrest (heart attack). It was averred that the petitioner as per the assurance submitted all

the necessary documents to the insurance company for settlement of her claim but the claim was

repudiated by the insurance company without any legal justification vide letter dated 24.11.2009.

It was averred that the claim was rejected on false grounds of concealment of true state of health

by the assured at the time of agreement and signing the proposal form and also that the insured

was suffering from ‘Pleural Effusion’ since 2007. It is averred that the repudiation is not legally

justified and the petitioner has sought payment of Rs.1,20,000/- along with interest,

compensation and litigation expenses.

        The District Forum while allowing the complaint, “ordered the respondent no.1 – insurance

company to pay a sum of Rs.1,20,000/- to the petitioner along with interest @ 9% per annum

from the date of death of life assured i.e., 26.03.2009 till its actual realisation along with

Rs.2,000/- as cost of litigation which the petitioner has to bear for the present unwanted and

unwarranted litigation only due to the deficiency in service on the part of the respondent.

Accordingly, the complaint is allowed”.

        Aggrieved by the order of the District Forum, the insurance company filed an appeal before

the State Commission. The State Commission came to the conclusion that “the life assured had

concealed material particular about his health. The life assured was suffering from ‘Pleural

Effusion’ disease before taking the policy. Thus life assured had certainly concealed material

particular with respect to his health. Therefore, the life assured was stated to have given in

correct history by concealing material particulars about this health and consequently secured

the policy.

        The District Forum passed the impugned order by ignoring all these aspects and as such

the impugned order being an illegal one cannot be sustained.

        For the reasons recorded above, this appeal is accepted, the impugned order is set aside

and the complaint is dismissed”.

        Hence, the present revision petition. Along with the present revision petition an application

for condonation of delay has been filed. In the application for condonation of delay the number

of days of delay have not been mentioned. However, as per the office report, there is a delay of

352 days. The reasons given for the delay in the application for condonation of delay are as

under:

         The petitioner is an illiterate and very poor lady. She was not aware that the

unfounded impugned order can still be challenged through the revision petition before the

National Commission.

         During summer vacations on 25.06.2013, the counsel noticed crying of the petitioner

widow, outside the gate of the Supreme Court. When asked, she told about this case.

Ultimately, she was told to meet with the case file next month after summer vacations.

         On 04.07.2013, the petitioner widow showed the concerned file records to the

counsel, who after perusing the case file and seeing the merits, assured her to conduct her

case, for no advocate fee, before this Commission against the erred judgment of the State

Commission. So this is the day when it came to knowledge in reality to the petitioner that

a revision could be filed before the Commission.

We have heard the learned counsel for the petitioner and have gone through the records.

The only reasons given in the application for condonation of delay and also argued by the

counsel for the petitioner is that the petitioner is an illiterate and poor lady and was ignorant of

the fact that she could file the revision petition before the National Commission till the counsel

so advised her on 04.07.2013. He argued that the limitation should be counted from 04.07.2013

and not from the date of the impugned order, i.e., 28.05.2012.

The petitioner have failed to give reasons for the day-to-day delay. The petitioner has

failed to provide ‘sufficient cause’ to condone the delay of 352 days. This view is further

supported by the following authorities:

The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that:

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”. 

In Balwant Singh Vs.  Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:                    

“The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”.

            In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;

 “It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.” Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;

         “There is no denying the fact that the expression sufficient cause should

normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is

to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

         In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed: 

“We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.” 

Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 352 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with no order as to cost.

..………………………………[ V B Gupta, J.]  ………………………………..[Rekha Gupta] Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 REVISION PETITION No. 2717 of 2013(From the order dated 09.09.2011 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in Appeal no. 1763 of 2010)  

Krishan Singh Son of Shri Inder Singh Resident of House no. 272/ 26 8 Marla Colony Tehsil and District Panipat Haryana

Petitioner  Versus Future General Insurance Co. Ltd., Shop No. 15, Jai Mata Market Gohana Road Panipat Through its Manager Divisional Manager MD, Future General Insurance Co. Ltd.,

Dr Gopal Dass Bhavan 8th Floor, Barakhamba Road Connaught Place New DelhiRespondents

  BEFORE:

          HON’BLE MR JUSTICE V B GUPTA             PRESIDING MEMBER

          HON’BLE MRS REKHA GUPTA                     MEMBER

 

For the Petitioner                 Mr Gautam Godara, Advocate along with                                        Petitioner – IN PERSON  Pronounced on 30 th   October     2013  

ORDER REKHA GUPTA 

        Revision petition no. 2717 of 2013 has been filed under section 21 of the Consumer

Protection Act, 1986 against the impugned order dated 09.09.2011 in First Appeal no. 1763 of

2010 passed by the Haryana State Consumer

Disputes Redressal Commission, Panchkula (additional bench) (‘the State Commission’).

        The brief facts of the case are that the petitioner/complainant purchased

a Splendor Plus Motorcycle bearing registration no. HR 06 S 6031 from oneParamjeet and got

the same insured with OPs for Rs.38,000/- for the period from 09.09.2009 to 08.09.2009, vide

policy & certificate no. 2008-V 2006 1933 – FTW and cover note no. A 0846506. When the

petitioner parked the above said motorcycle under the flyover, Assandh Road, Panipat after

locking it on 28.11.2008, the same was stolen by some unknown person. The petitioner informed

the policy of PS City Panipat in this regard immediately but the police registered the case on

03.12.2008. The petitioner also informed the respondents/ opposite parties regarding the theft of

the motorcycle on the same day and complete the requisite formalities including submission of

untraceable report dated 10.04.2009 but the respondents have not settled his claim so far despite

repeated requests.

        Respondent no. 2 / OP 2 repudiated the claim on the ground of non-insurable interest

of Paramjeet Singh who was insured of OP 2 and had already sold the vehicle to the

petitioner/complainant on 05.09.2008 but the policy still existed in the name of

insured Paramjeet Singh. Thus the insured had violated the terms and conditions of the policy.

Hence, the petitioner was not entitled to any claim. Respondent no. 2/ OP 2 denied any

deficiency in service on their part.

        The District Consumer Disputes Redressal Forum, Panipat (‘the District Forum’) while

allowing the complaint ordered as under:

“We hereby allow the present complaint with the direction to the OPs to pay Rs.34,000/-

to the complainant with interest at the rate of 9% per annum from the date of filing of this

complaint till its realization. Cost of litigation to the sum of Rs.2,200/- is also allowed to

be paid by OPs to the complainant. The order shall be complied with within a period of

30 days from the date of announcement of this order”.

        Aggrieved by the order of the District Forum, the respondents / OP 1 and 2 filed an appeal

before the State Commission. The State Commission vide its order dated 09.09.2011 came to the

conclusion that:

“It is an admitted case between the parties that motorcycle bearing registration no. HR

06 S 6031 stolen by some unknown persons on 28.11.2008 when it was parked under the

Flyover, Assandh Road Panipat, Learned counsel for the appellants/ opposite parties has

assailed the validity of the impugned order on the ground that on the date of alleged theft

the registration certificate as well as insurance policy stands in the name of its previous

owner ParamjeetSingh and appellants/ opposite parties are not liable to pay any

insurable benefits to the complainant.

Having considered the facts and circumstances of the case we feel that the learned

District Forum has committed great error while accepting the complaint by ignoring the

actual and factual position on record because on the date of alleged that of motorcycle in

question the complaint was not the owner of the motorcycle and insurance policy also

stands in the name of Paramjeet Singh from whom the said motorcycle was purchased by

the complainant. As such impugned order under challenge is not sustainable in the eyes

of law.

Accordingly, the appeal is accepted, impugned order is set aside and complaint is

dismissed”.

        Hence, the present revision petition.

        Along with the present revision petition an application for condonation of delay of 26 days

has been filed. However, as per the office report, there is a delay of 531 days. The impugned

order was passed on 09.09.2011 and the revision petition has been filed on 22.07.2013. The

reasons given in the application for condonation of delay are as under:

         The impugned order was passed by Hon’ble State Commission on 09.09.2011 and

certified copy was supplied to the counsel on 09.11.2011. It is submitted that counsel for

the petitioner at Chandigarh failed to communicate about the impugned order to the

petitioner and later on when petitioner contacted him to know about the status of appeal,

petitioner was informed of the impugned order. Thereafter, he immediately applied for a

certified copy of the impugned order on 26.03.2013 and was delivered on the same day.

Since First Appeal was allowed 2 years back the counsel for the petitioner failed to

deliver the record of the appeal to the petitioner and accordingly petitioner procured the

record from his District Court Counsel and accordingly, came down to Delhi on

15.07.2013 and met his counsel. After perusing the papers present revision petition was

drafted and filed on today. It is submitted that there is some delay in filing the present

petition which is not intentional and deliberate one on the part of the petitioner and same

is liable to be condoned in the interest of justice otherwise petitioner will suffer

irreparable loss and hardships.

We have heard the learned counsel for the petitioner as well as the petitioner in person

and have also gone through the records of the case.

The petitioner has failed to give reasons for the day-to-day delay. The petitioner has

failed to provide ‘sufficient cause’ to condone the delay of 531 days. This view is further

supported by the following authorities:

The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that:

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”. 

In Banshi vs Lakshmi Narain – 1993 (I) RLR 68 it was held that reasons for delay was sought to be explained on the ground that the counsel did not inform the appellant in time, was not accepted since it was primarily the duty of the party himself to have gone to lawyer’s office and enquired about the case, especially when the case was regarding deposit of arrears of rent.

In Bhandari Dass vs Sushila, 1997 (2) Raj LW 845, it was held that accusing the lawyer that he did not inform the client about the progress of the case nor he did send any letter, was disbelieved while rejecting an application to condone the delay.

In Balwant Singh Vs.  Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:                    

“The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”.

            In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;

 “It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.” Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;

         “There is no denying the fact that the expression sufficient cause should

normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

         In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed: 

“We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.” 

Accordingly, we find that there is no ‘sufficient cause’ to condone the long delay of 531 days in filing the present revision petition. The application forcondonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with a cost of Rs.5,000/- (rupees five thousand only).

Petitioner is directed to deposit the cost of Rs.5,000/- by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission within four weeks from today. In case the

petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

        List on 6th December, 2013 for compliance.

Sd/-..………………………………[ V B Gupta, J.] Sd/-………………………………..[Rekha Gupta]Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO. 125 OF 2013

(From the order dated 24.09.2012 in First Appeal No. 420/2011 of Haryana State Consumer Disputes Redressal Commission)

 

M/s. Vikas Sanitary and Hardware Store, Bhai Kanhaiya Sahib Chowk, Gobindpuri, Yamuna Nagar, through its Proprietor Shri Vikas Sharma

...  Petitioner

                                     Versus

1.     The New India Assurance Co. Ltd. Opposite Madhu Cinema Yamuna Nagar through its Branch Manager 

2.     The Punjab National Bank, New Grain Market, Jagadhari, Haryana

                                                               … Respondent(s)

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

  

For the Petitioner(s)   Mr. D.P. Sharma, Advocate 

For the Respondent–1   Mr. R.B. Shami, Advocate 

For the Respondent–2   Mr. Pardeep Walia, Advocate

 PRONOUNCED ON :     31 st   OCTOBER     2013 O R D E R 

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER 

          This revision petition has been filed by the petitioner against the impugned order dated

24.09.2012 passed by the Haryana State Consumer Disputes Redressal Commission (for short

‘the State Commission’) in FA No. 420/2011, “The New India Assurance Co. Ltd. versus M/s.

Vikas Sanitary & Hardware Store & Anr.” by which while allowing the appeal, order of District

Forum allowing the complaint was modified and compensation was reduced.

 

2.       Brief facts of the case are that complainant – petitioner got his shop insured from opposite

party No. 1 / respondent no. 1 from 24.03.2006 to 23.03.2007 for coverage of risk of fire, theft

etc.  Complainant had obtained cc limit from opposite party no. 2 / respondent no. 2 for running

his business.  In the intervening night of 29/30.09.2006 fire broke-out in the shop.  A report was

lodged with the Police and intimation was given to opposite party no. 1.  Opposite Party No. 1

was given legal notice, thereafter, opposite party No. 1 sent a cheque of `1,36,547/- to opposite

party No. 2 which was credited in the account of complainant.  As amount sent was too less in

comparison to loss of `5,22,000/-, alleging deficiency in service on the part of the opposite

parties, the complainant filed complaint before the District Forum.  Opposite parties resisted

claim and submitted that as per assessment made by surveyor, cheque was sent and prayed for

dismissal of complaint.  Learned District Forum after hearing both the parties allowed the

complaint and directed opposite party No. 1 to pay `2,84,932.19ps. along with interest @12%

p.a. and further ordered to pay `5,000/- as litigation expenses.  Appeal filed by opposite party no.

1 was partly allowed by learned State Commission.  It was held that complainant is not entitled

to any relief except `1,36,547/-, against which this revision petition has been filed.

3.       Heard learned counsel for the parties finally at admission stage and perused the record.

4.       Learned counsel for petitioner submitted that impugned order is a non-speaking order,

hence revision petition be allowed and matter may be remanded back to learned State

Commission.  Learned counsel for respondent also agreed to this extent that the impugned order

is a non-speaking order.

5.       Learned State Commission after narrating facts in detail in the impugned order observed as

under:-

“After gone through the case file, I feel that the grant of compensation is not justified.  As per the facts and circumstances of the case and findings recoded by the District Forum as well as the order passed by District Consumer Forum needs to be modified to the extent that compensation of `1,36,547/- instead of `4,21,479.19 - `1,36,547/- will be justified.  The appellant / OP No. 1 is not entitled to any other benefit.”

 

6.       Perusal of order carefully reveals that no reason has been given by learned State

Commission while reducing compensation awarded by District Forum.  Hon’ble Apex Court in

(2001) 10 SCC 659 – HVPNL Vs. Mahavir observed as under:

“2. We may point out that while dealing with a first appeal, this is not the way to dispose of the matter.  The appellate forum is bound to refer to the pleadings of the case, the submissions of the counsel, necessary points for consideration, discuss the evidence and dispose of the matter by giving valid reasons.  It is very easy to dispose of any appeal in this fashion and the higher courts would not know whether learned State Commission had applied its mind to the case. We hope that such orders will not be passed by the State Consumer Disputes Redressal Commission, Haryana at Chandigarh in future. A copy of this order may be communicated to the Commission”.

 7.       Hon’ble Apex Court in (2005) 10 SCC 243 H.K.N. Swami versus Irshad Basith (Dead) by LRs. observed as under:-

“The First appeal has to be decided on facts as well as on law.  In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to

all issues and decide the case by giving reasons.  Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law.  Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.  The order of the High Court is cryptic and the same is without assigning any reason.”

 

8.       In the light of aforesaid judgements it becomes clear that it is obligatory on the part of the

first appellate court to pass detailed, speaking order with reasons.  In the present case, learned

State Commission has not applied its mind at all and has modified the order of District Forum

without any reason in such circumstances, matter deserves remand.

 9.       Consequently, revision petition filed by the petitioner is allowed and the impugned order dated 24.09.2012 passed by State Commission in FA No. 420/2011, “The New India Assurance Co. Ltd. versus M/s. Vikas Sanitary & Hardware Store & Anr.” is set aside and matter is remanded back to the State Commission to pass detailed speaking order after giving an opportunity of being heard to both the parties. 

 10.     Parties are directed to appear before the State Commission on 17.02.2014.Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER  

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

 CONSUMER COMPLAINT NO. 216 OF 2012

 

Tainwala  Personal  Care  Product  Pvt.  Ltd. Tainwala House, Road No.18 MIDC, Andheri (East), Mumbai – 400093

…  Complainant 

 Versus

  Royal  Sundaram  Alliance  Insurance Co. Ltd. 21, Patullos Road, Chennai – 600 002 Also at Western Regional Office, Delphi, ‘C’ Wing 201-204, 2nd Floor, Hiranandani Business Park Powai, Mumbai – 400076

                                                …  Opposite Party

 BEFORE:

HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER        HON’BLE DR. S. M. KANTIKAR, MEMBER

  

For the Complainant   : Ms. Anuradha Dutt, Mr. Kuber Dewan

  & Ms.Azal Khan, Advocates

 For the Opposite Party         : Mr. P. K. Seth, Advocate

 PRONOUNCED ON     1 st   NOVEMBER,     2013   

                                                O R D E R

JUSTICE J.M. MALIK

1.      The main question which falls for consideration is, “Whether, this complaint  is  barred  by

time?”.  The  facts of  the complaint case are these.  Tainwala Personal Care Product Pvt. Ltd.,

the  complainant, obtained a  Standard Fire and  Special  Perils Policy  in relation to its factory

premises, situated at Plot No.4, Government Industrial Estate, Village Khadoli, Silvassa, Dadra

& Nagar Haveli,  in the sum of Rs.2,70,00,000/-  on  or about  12.02.2008,  from  Royal

Sundaram Alliance  Insurance Co.Ltd., the opposite party,  in this

case,  for the  period  commencing  from 14.02.2008 to 13.02.2009.  The complainant  paid a

sum of Rs.23,891/-, vide cheque, dated 13.02.2008  to the Insurance Brokers.

The  insurance Brokers,  in  turn  forwarded   the proposal form in respect of the

complainant’s  said factory unit for an insurance cover, to the Insurance Company,

vide  covering letter  dated 14.02.2008.  The  Opposite Party, vide  its letter dated 14.02.2008,

issued a Risk Confirmation to the complainant in respect  of  the  Standard  Fire and  Allied

Special  Perils Insurance  Policy, for the above said period.  The

complainant  was  also  informed  that  the policy documentation was under preparation and  it

would  be  forwarded  to the complainant, in due course. 

 

2.      Unfortunately,  a  major fire occurred, on 17.02.2008, which gutted the

complainant’s  insured  factory  premises.  Information  was  given to

the  insurance  company.  The premises  were visited by the Surveyor and he submitted his

report.  The claim  of  the complainant was repudiated vide  letter  dated

18.02.2008,   the  relevant  portion of  which,  runs   as

follows:

“Sub: Proposal for fire and allied perils SI – Rs.270

        lakhs

Dear Sir,

We  are in receipt of your fax dated 14th February, 2008, requesting for insurance cover for your factory at Plot No.4, Govt.Industrial Estate, Khadoli Village Silvasa, Dadra & Nagar Haveli.  The premium cheque for Rs.23,891/-  (as against our quot e of Rs.30,716/) was received by us, only on 15th February, 2008.

You may kindly  note that the consideration received for  covering this risk  is less than the offer given by us. Hence  we are not in a position to cover the risk as requested by you.

Hence, you may kindly note that we are not on cover for the above mentioned risk.

Thanking you,

Yours faithfully,

           Sd/-

           Authorised  Signatory

For Royal Sundaram Allied Insurance Co.Ltd.         Dt. 18.02.2008”.                                                 

At this  stage, we are not concerned with the merits of this case.  Themain question is whether the case is barred by time or not. 

3.      Instead of approaching the consumer  fora,  the complainant

approached  the  Arbitrator.  The complainant  believed that it was entitled to invoke arbitration.

The relevant  clause No.13 of  the General Conditions, stipulates :-

“If any dispute or difference shall arise as to the quantum to be paid under this Policy (liability being otherwise admitted) such

difference shall independently of all other questions be referred to the decision of a sole arbitrator to be appointed in writing by the parties to or if they cannot agree upon a single arbitrator within 30 days of any party invoking arbitration, the same shall be referred to a panel of three arbitrators, comprising of two arbitrators one to be appointed by each of the parties to the dispute/difference and the third arbitrator to be appointed by such two arbitrators and arbitration shall be conducted under and in accordance  with the provisions of the Arbitration and Conciliation Act, 1996.  It is clearly agreed and understood that no difference or dispute shall be referable to arbitration as hereinbefore provided, if the Company has disputed or not accepted liability under or in respect of this Policy.  It is hereby expressly stipulated and declared that it shall be a condition precedent to any right of action or suit upon this Policy that the award by such arbitrator/ arbitrators of the amount of the loss or damage shall be first obtained.”

 

4.      The insurance  company  declined  to  appoint  an Arbitrator, inter alia, contending  that

there was no concluded contract of insurance between the parties.  The complainant approached

the Hon’ble High Court of Bombay, which, vide its order dated 07.05.2012, disposed of the

application.  The Hon’ble  High  Court of Bombay, held that “it is evident that there is no

arbitration  agreement  between  the parties for the reasons which have been indicated above”.

 

5.      The complainant  submits  that the aforesaid order of the Hon’ble High Court  of  Bombay

is ultra vires on the following grounds.  The relevant para is S1, which is reproduced as under :-

(i) The Risk  Cover  Note dated 14 February 2008 per se constitutes a valid and binding insurance agreement between the Complainant and the Insurer, particularly when the said Risk Cover Note categorically stated that the policy document is under preparation and will be submitted in due course”.

 

6.      However, it  is interesting  to note that,  although, the order of  the

Hon’ble High Court  was called into question in these Proceedings, yet, no appeal  or SLP was

preferred before the Hon’ble Supreme Court of India.  Counsel  for  the  complainant has invited

our attention towards an authority of the Supreme Court, reported in  Consolidated Engineering

Enterprises Vs. Principal Secretary, Irrigation Department & Ors., (2008)  7 SCC 169, wherein

in para Nos. 22 and 31, it has been held,  as under :-

“22.  The  policy of  the section is to afford protection to a litigant against the bar of limitation when  he institutes  a proceeding which by reason of some technical  defect  cannot be decided on merits and is dismissed. While considering the provisions of  Section 14 of the Limitation Act, proper approach will have  to be adopted  and the provisions will have to be interpreted so as to advance the cause of  justice rather than abort  the proceedings.  It will be well  to bear in mind that an element of  mistake  is inherent  in  the invocation  of  Section 14.  In fact, the section is  intended to provide relief against the bar of limitation  in cases  of  mistaken remedy or selection of a wrong forum.  On reading  Section 14 of  Act,  it becomes clear  that the  legislature enacted the said section to exempt a certain period covered by a bonafide litigious activity. Upon the words used in the section, it is not possible  to sustain the interpretation that the principle underlying the said section, namely, that the bar of  limitation should  not affect  a person  honestly  doing  his best to get his case tried on merits but  failing because the court is unable to give him such a trial, would not be applicable to an  application filed under Section 34 of the Act of 1996.  The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no  jurisdiction to  entertain  it but also where he brings the suit or the application in the wrong court in consequence of  bona fide mistake or (sic of ) law or defect of procedure.  Having regard to the intention of the legislature, this Court is of the firm opinion that the equity underlying Section 14 should  be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded.

 

31.  To attract the provisions of Section 14 of the Limitation Act, five conditions enumerated in the earlier part of  this  judgment have to co-exist.  There is no manner of doubt that the section pre-requisites for attracting Section 14.  Due diligence cannot be measured by any absolute standards.  Due diligence is a measure of prudence or activity  expected from and ordinarily exercised by a reasonable and prudent  person under the particular circumstances.  The time during which a court holds up a case while it is discovering that it ought to have been presented in another court, must be excluded, as the delay  of  the court cannot affect  the due diligence of the party.  Section 14 requires  that the prior proceeding should have been prosecuted  in  good faith and with due diligence.  The definition of good faith as found in Section 2(h) of the Limitation Act would indicate that nothing  shall  be deemed to be in good faith which is not done with due care and attention.  It is true that Section 14 will not help a party who is guilty of negligence, lapse or inaction.  However, there can be no hard-and-fast rule as  to what amounts to good faith. It is a matter to be decided on the facts of each case.  It will, in almost every

case, be more or less, a question of degree.  The mere filing of an application in wrong court would not prima facie show want of good faith.  There must be no pretended mistake intentionally made with a view to delaying the proceedings or harassing the opposite party.  In the light of these principles,  the question will have to be considered whether  the  appellant  had  prosecuted the matter in other  courts  with due diligence and in good faith”.

7.      On the other hand,  counsel for the Opposite Party vehemently argued  that  the case filed

by the complainant before  the Hon’ble  High Court is lame of strength.  He submitted

that,  instead of  contesting the judgment before  this  Commission,  which  has  no

power  to  upset  the  judgment  of the Hon’ble  High Court in this context, the  complainant

should have challenged  the same  before the Hon’ble Supreme Court of India.  Although  this

point carries  value in a measure, yet,  it  will not assist us in deciding  the question of

limitation. It is  explained  that  after dismissal of the petition on 07.05.2012,  by the Hon’ble

High Court, Bombay, the petition was filed immediately  in this Commission, on

13.08.2012.  Counsel for  the Opposite party  further  argued  that  there  was

no  concluded  contract.  Section  14  of the Limitation Act requires  that  the

request  made  by  the  complainant  should  be bonafide.  He  contended  that  after  having lost

the  battle  in  one  forum,  the complainant  is  attempting  to  try  his luck, somewhere else.

 

8.      We find force in the arguments submitted by the counsel  for  the   Opposite

Party.  Moreover, the Hon’ble Supreme Court in Laxmi Engginering Works Vs. P.S.G. Industrial

Institute, (1995) 3 SCC 583, held :-

 

“23. The  appeal accordingly  fails and is dismissed, but without costs.  If the appellant chooses to  file a suit for the relief claimed in these proceedings, he can do so according to law and in such a case he can claim the benefit of Section 14 of the Limitation Act, to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act, while computing the period of limitation, prescribed for such a suit”.

 

9.      It is clear that  the  complainant  had  initiated the proceedings in good faith.  The

Arbitrator has no jurisdiction  to try  this case  and  there  lies  no  rub in filing this case

before this Commission, by virtue of Section 3 of the Consumer Protection Act,

1986.  Consequently, the  said delay is hereby condoned. However, it is made

clear  that  nothing  in this order shall  tantamount  to the merits of this case.  All the points are

being kept open.

 

10.    The case is  now  fixed for  complainant’s evidence by way of affidavit, on  08.09.2014.

.…..…………………………(J. M. MALIK, J)

                                PRESIDING MEMBER    

.…..…………………………(DR. S. M. KANTIKAR)

                     MEMBER

dd/25

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI          REVISION PETITION NO. 1616 OF  2011                        With        (Application for condonation of Delay) (Against the order dated  14.9.2010 in First Appeal No.983/2004  of the State Commission, Kerala) National Insurance Company Ltd. 3rd Floor, East Fort Complex Palakkad Also at DRO-I,Jeevan Bharti, Connaught Circus New Delhi 

                              …….Petitioner 

Versus 1.   Shri P. Rangaswamy Proprietor Kolayakkad, Pudusery P.O., Palakkad 2.   The Branch Manager State Bank of Travencore, Pudussery, Palakkad                   …Respondents BEFORE:       HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER       HON'BLE MRS. REKHA GUPTA, MEMBER        For the Petitioner           :    Mr. P.K Seth, Advocate For the Respondent no.1      :    Mr. K. Ramesh, Advocate For the Respondent no.2      :    Nemo Pronounced on: 11 th   November, 2013  ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER 

     Being  aggrieved by  order  dated 14.9.2010  passed by Kerala  State Consumer Disputes

Redressal Commission, Vazhuthacadu, Thiruvananthapuram (for short, ‘State Commission’) in

First Appeal No.983 of 2004, Petitioner/O.P. No.1 has filed the present revision petition under

Section 21(b) of Consumer Protection Act, 1986 (for short, ‘Act’).

2.   Alongwith it, an application seeking of delay of 120 days has been filed though as per office

report there is delay of 133 days.

3.   We have heard the learned counsel for the parties on the application for condonation of delay

and have also gone through the record.4.   Grounds on which condonation of delay has been sought are reproduced are as under;

“3.  That the certified copy of the judgment was received in the concerned branch office of the petitioner on 13.10.2010 and thereafter the said branch office sought legal opinion of the attending advocate on the judgment and after receiving the same, all the relevant papers were forwarded to the competent authority at Regional Office, Ernakulam for the advice. 4. That the Regional Office of the petitioner Insurance Company forwarded the papers to their one of the panel advocates for seeking his opinion on the impugned order. The legal opinion of the said advocate was

received at the Regional Office on 27.12.2010 advising for filing the Appeal against the order of the State Commission. 5. That however in view of the contradictory legal opinion about filing of the Revision Petition against the order of the Hon'ble State Commission and particularly in view that the issue of liability under the policy was involved, the papers were forwarded to Head Office, Technical (Legal), Consumer Forum Department, for seeking their advice and approval based on the opinion of  their panel advocate advising to file Revision Petition against the order of the State Commission.

                   6.  That the competent authority at Head Office gave approval for filing the

Revision Petition against the order of the Hon'ble State Commission and accordingly all the set of papers were forwarded to the concerned office for forwarding the same to Delhi Regional Office which is authorized to file the Revision Petition before the Hon'ble National Commission.

                   7. That the Delhi Regional Office thereafter forwarded the entire set of papers to

one of its panel advocates vide letter dated 07.04.2011 and thereafter the advocate prepared the Revision Petition and forwarded the same for the approval and signatures of the competent authority on the Petition vide its letter dated 28.04.2011 and immediately thereafter the Revision Petition after the signatures were returned to the advocate to the advocate for filing  the same and the advocate accordingly filed the Revision Petition in the Registry of Hon'ble Commission.8. That the delay of 120 days in filing the Revision Petition occurred because of the aforesaid administrative procedure and was neither intentional nor willful.  It is in the interest of justice that the delay of 120 days in filing the Revision Petition may please  be condoned.”

 

5.   Thus, as per above grounds, the certified copy of the judgment was received in the office of

the petitioner on 13.10.2010 and legal opinion of the panel advocate was received on 27.12.2010

advising for filing the appeal against the order of the State Commission. Further, the plea of the

petitioner is that in view of the contradictory legal opinion about filing of the revision petition,

the papers were forwarded to Head Office for seeking their advice. The Head Office gave the

approval and accordingly all set of papers were forwarded to the concerned office at Delhi

Regional Office, which forwarded the papers to its panel advocate on 7.4.2011. Thereafter, the

revision petition was filed on 12.5.2011.

6.   No name of any official has been mentioned as to who has dealt with the case file from

27.12.2010 till 7.4.2011. Moreover, it is not stated as to who had given the contradictory

opinions and what are the dates of those two opinions. The grounds on which condonation of

delay has been sought are the usual grounds  taken up by the Public Sector Undertakings,

without giving any reasonable and justifiable explanation for long delay of about four months.

7.   It is well settled that “sufficient cause” for condoning the delay in each case is a question of

fact.  

       8.  In  Ram Lal  and  others  Vs.  Rewa  Coalfields  Ltd., AIR  1962 Supreme Court 361, it

has been observed;“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

 

  9.    In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2)   Scale 108, it has been observed;    “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal /petition”.

 

10. Hon’ble Supreme Court after exhaustively   considering the case law on the aspect  of

condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat

Industrial Development Corporation reported in (2010) 5 SCC 459 as under;

     “We  have  considered the respective submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the  legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”      

 

11. Now, Apex Court in Anshul Aggarwal  Vs. New Okhla  Industrial Development

Authority, IV (2011) CPJ 63 (SC) has observed ;

    “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras”.

 

12. The observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case. Thus, as per the application for condonation of delay no sufficient grounds are made out to condone the long  delay of 120 days. It would be pertinent to mention here that consumer complaint was filed by respondent no.1, as far back as in the year 2001. Now, even after 12 years, respondent  no.1, having decision of  two consumer fora below in its favour, is being deprived of the fruits of the award.

13.  Under these circumstances, it is a fit case where petitioner should be burdened with the  cost for causing undue harassment as well as delay to the complainant. Consequently, the present revision petition being barred by limitation stand dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only) to be paid to respondent no.1/complainant.

14.  Petitioner is directed to deposit the cost by way of demand draft  in the name of respondent no.1 in this Commission within four weeks from today.

15.  In case, petitioner fails to deposit the cost within the prescribed period, it shall be liable to

pay interest @ 9% p.a., till realization.

\16.  However, the cost shall be paid to respondent no.1, only after expiry of the period of appeal

or revision preferred, if any.[

17.  List for compliance on 13.12.2013.   

……………………………………….J     (V.B. GUPTA)      PRESIDING MEMBER

 …………………………………………     (REKHA GUPTA)

      MEMBERSg

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

FIRST APPEAL NO. 141 OF 2009  

(Against the order dated 27.11.2008 in Complaint No. 170/2001 of the Delhi State Consumer

Disputes Redressal Commission)

 

New India Assurance Co. Ltd. Registered & Head Office New India Assurance Building 87, Mahatma Gandhi Road Fort, Mumbai-400001 Also at J-129, Kirti Nagar New Delhi-110075 Also at Delhi Regional Office-I Jeevan Bharti Building Connaught Circus New Delhi

                                                                         …    Appellant

Versus

Ram Avtar S/o Shri Khachauri Mal R/o 4/420, Bhola Nath Nagar Shahdara, Delhi-110032

                                                    …    Respondent

 BEFORE:

          HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER  

 For Appellant                        :             Mr. P.K. Seth, Advocate

For Respondent                    :             Mr. A.K. Verma, Advocate    

 Pronounced on 11 th   November, 2013  

ORDER

PER VINEETA RAI 

        This First Appeal has been filed by New India Assurance Co. Ltd., Appellant herein and

Opposite Party before the Delhi State Consumer Disputes Redressal Commission (hereinafter

referred to as the State Commission) against the order of that Commission which had allowed the

complaint filed against it on grounds of deficiency in service by Ram Avtar, Respondent herein

and Complainant before the State Commission.

2.       In his complaint before the State Commission, Respondent/Complainant had contended

that his Tata Sumo vehicle which was financed by M.G.F. India Ltd. and insured by

Appellant/Insurance Company for a period of one year i.e. from 19.08.1997 to 18.08.1998, was

stolen on 24.02.1998 when it was parked near Guru Teg Bahadur Hospital, Shahdara, Delhi.

Respondent/Complainant on the same date lodged an FIR under Section 379 IPC at Police

Station Seemapuri, Delhi. On 20.03.1998 Respondent/Complainant also submitted a claim form

to the Appellant/Insurance Company and requested that an Investigator be appointed to look into

the case of theft of the insured vehicle.  On receipt of this information, Appellant/Insurance

Company appointed one Sanjeev Nijhawan as Investigator, who sought certain clarifications of

the theft of the insured vehicle which were replied to by the Respondent/Complainant.  However,

despite this, vide letter dated 19.03.1999 Appellant/Insurance Company unjustifiably repudiated

the claim, after which Respondent/Complainant made a complaint to the Grievance Cell of the

Appellant/Insurance Company, which was also rejected.  It was further contended that the Police

also could not recover the stolen vehicle and sent an untraced report on 25.05.1998.  Being

aggrieved by the deficiency in service on the part of Appellant/Insurance Company,

Respondent/Complainant filed a complaint before the State Commission seeking a total

compensation of Rs.5,35,000/- from the Appellant/Insurance Company, which included

Rs.4,65,000/- being the insured value of the vehicle, Rs.50,000/- on account of tension and

mental agony and Rs.20,000/- as litigation costs.

3.       Appellant/Insurance Company, on being served, filed a written rejoinder denying the

allegation that the claim was wrongly rejected.  It was stated that the Respondent/Complainant

informed the Appellant/Insurance Company about the theft of the vehicle only on 30.03.1998 i.e.

approximately one month after the vehicle was allegedly stolen which was against the terms and

conditions of the insurance policy which required the Insuree to give immediate intimation about

the theft.  The Investigator appointed by the Appellant/Insurance Company to enquire into the

nature, cause, circumstances and genuineness of the claim after conducting the necessary

enquiries concluded that there were serious reasons to doubt the genuineness of the claim.  It

appeared that the Respondent/Complainant took almost one month to give intimation about the

alleged theft with a view to hide various facts and avoid detection of the fraud played by him on

the Appellant/Insurance Company.  Specifically it was contended that the

Respondent/Complainant’s contention that the vehicle was stolen outside

Guru Teg Bahadur Hospital, where his brother was admitted for treatment, was not correct

because the brother had actually expired 9 months prior to the theft.  Further, it came to light

during enquiries made by the Investigator that the vehicle which was hypothecated by the

Respondent/Complainant in favour of M.G.F. India Ltd. had a specific clause that it could not be

used for hire or reward whereas enquiries revealed that it was being used for hire and reward i.e.

for commercial purpose and not for his personal use.  In fact, the enquiries also revealed that the

Respondent/Complainant was not running a soap factory and had a very modest financial

status.  The above facts were communicated to the Respondent/Complainant by the

Appellant/Insurance Company vide letter dated 12.02.1999 specifically bringing to his notice the

various anomalies and contradictions found in the statements made by him from time to time.  It

was also pointed out that the inordinate delay in informing the Appellant/Insurance Company

about the theft of the vehicle was clearly against the terms and conditions of the insurance

policy, according to which information about the theft should have been immediately conveyed

to the Appellant/Insurance Company.  Respondent/Complainant, however, did not reply to this

letter and, therefore, the claim was rightly repudiated by the Appellant/Insurance Company.   

4.       The State Commission, after hearing the parties, allowed the complaint and held the

Appellant/Insurance Company guilty of deficiency in service.  In its detailed order, the State

Commission inter alia concluded that the delay in informing the Insurance Company was not a

ground for rejecting the claim since this provision in the insurance policy was of a “directory

nature” and not a mandatory requirement.  The relevant part of the order of the State

Commission is reproduced:“20.    The provision of informing the insurance company or lodging the report with the police immediately after the occurrence is of directory nature and not of mandatory nature. What is relevant and material for adjudicating the claim whether the theft had taken place or not and whether the occurrence took place within the subsistence of the insurance policy or not. The grounds raised are confused and immaterial and not to be taken into consideration as the insurance cover is against the theft of the vehicle.

 

21.     Once a criminal offence takes place and a report is lodged with the police, the police is the only statutory authority to investigate the case and no other authority and the final report of the police has to be acted upon. Some delay of few days in intimating about the information and lodging the claim by the insured to the appellant-company cannot form a ground for doubting the theft or burglary. If the insurance company finds that the report lodged by the insured was false it can always approach the police u/s 182 of the Cr.P.C.

 

22.     As regards the objection that the vehicle was being used as a commercial vehicle and not a private vehicle, the facts of each and every case have to be scrutinized and scanned on its own. It was a simple case of theft of vehicle and not a case where the breach of some provisions of Motor Vehicle Act were committed and if at all this was a case, the complainant could have been prosecuted under the Motor Vehicle Act but cannot deny the insurance claim covering the risk of theft.”

 

The State Commission, therefore, directed the Appellant/Insurance Company to pay to

the Respondent/Complainant (i) the insured value of the vehicle less 5% as depreciation value;

(ii) Rs.50,000/- as compensation towards mental agony and trauma and (iii) Rs.10,000/- as

litigation costs.  The State Commission also directed the Respondent/Complainant to take

necessary steps to transfer the ownership of the vehicle in the name of the Appellant/Insurance

Company.  

5.       Hence, the present First Appeal by the Appellant/Insurance Company.

6.       Counsel for the parties made oral submissions.

7.       Counsel for the Appellant/Insurance Company contended that the State Commission erred

in allowing the Respondent/Complainant’s complaint despite accepting the fact that the

Respondent/Complainant had taken almost a month to inform the Insurance Company about the

theft of the vehicle by observing that the provision in the insurance policy requiring

the Insuree to immediately inform the Insurance Company was of a directory nature and not of

mandatory nature.  On the other hand, it is well settled through a catena of judgments (including

of the Hon’bleSupreme Court in Oriental Insurance Co. Ltd.

V. Parvesh Chander Chadha rendered in Civil Appeal No. 6739 of 2010) that an insurance policy

being a contract between the two parties, its terms and conditions are binding on both

parties.  Therefore, in accordance with the terms and conditions of the insurance policy,

Respondent/Complainant was required to immediately inform the Appellant/Insurance Company

about the theft of the insured vehicle, which he failed to do.  Respondent/Complainant also had

not been able to successfully refute various contradictions and anomalies regarding the facts of

the theft as also his financial status, which further lent credence to the fact that the claim was not

genuine.

8.       Counsel for the Respondent/Complainant on the other hand stated that the

Respondent/Complainant had orally informed an officer of the Appellant/Insurance Company

about the theft of the vehicle on the same date and denied that he had filed a bogus and

fabricated claim.  It was further reiterated that the vehicle was purchased by the

Respondent/Complainant for his personal use. The State Commission on the basis of credible

evidence produced before it had rightly allowed his complaint.  The present First Appeal may,

therefore, be dismissed.

9.       We have heard the submissions made by the Counsel for the parties and also considered

the evidence on record.  The fact regarding the vehicle being insured by the Appellant/Insurance

Company for a period from 19.08.1997 to 18.08.1998 is not in dispute.  It is also an admitted fact

that although an FIR was lodged with the Police on the same date, information in writing was

conveyed to the Appellant/Insurance Company 35 days after the theft of the vehicle. When we

specifically asked the Counsel for the Respondent/Complainant whether there was any plausible

explanation for this delay, he stated that the information about the theft was conveyed to the

Appellant/Insurance Company orally on the same date.  However, we note that this fact was not

mentioned in the complaint and no evidence to support this contention was produced either

before the State Commission or before this Commission; not even the name of the official to

whom the complaint was purportedly made was stated.  We have perused the terms and

conditions of the insurance policy and we note that the relevant provision inter alia reads

as follows :“CONDITIONS1.       Notice shall be given in writing to the Company immediately upon the occurrence of any accident or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require.” 

Thus, as per the terms and conditions of the insurance policy, the Insuree was required to

immediately inform the Appellant/Insurance Company about the theft of the vehicle which he

admittedly failed to do.  We are unable to accept the finding of the State Commission that this

provision in the insurance policy is not mandatory but directory in nature since this issue is

squarely covered and decided by the Hon’ble Supreme Court

in Parvesh Chander Chadha (supra), in which case also pursuant to a vehicle having been stolen

between 18.01.1995 and 20.01.1995 an FIR was lodged with the Police on 20.01.1995 but

the Insuree did not inform the Insurance Company immediately about the incident as required

under the terms and conditions of the insurance policy.  The relevant part of the judgment of

the Hon’ble Apex Court is as follows : “Admittedly, the respondent had not informed the appellant about the

alleged theft of the insured vehicle till he sent letter dated 22.5.1995 to the Branch Manager.  In the complaint filed by him, the respondent did not give any explanation for this unusual delay in informing the appellant about the incident which gave rise to cause for claiming compensation.  Before the District Forum,

the respondent did state that he had given copy of the first information report to Rajender Singh Pawar through whom he had insured the car and untraced report prepared by police on 19.9.1995 was given to the said Shri Rajender Singh Pawar, but his explanation was worthless because in terms of the policy, the respondent was required to inform the appellant about the theft of the insured vehicle.  It is difficult, if not impossible, to fathom any reason why the respondent, who is said to have lodged First Information Report on 20.1.1995 about the theft of car did not inform the insurance company about the incident.  In terms of the policy issued by the appellant, the respondent was duty bound to inform it about the theft of the vehicle immediately after the incident.  On account of delayed intimation, the appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of vehicle and make an endeavor to recover the same.  Unfortunately, all the consumer foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle his claim on non-standard basis.  In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy.” 

10.     Respectfully following the above judgment of the Hon’ble Supreme Court, we are unable

to accept the order of the State Commission that the claim was wrongly repudiated and,

therefore, set aside the same in toto.  The present First Appeal is, accordingly, allowed.  No order

as to costs.      

  Sd/-

(D.K. JAIN, J.)

PRESIDENT

 

Sd/-

(VINEETA RAI)

MEMBERMukesh                      

NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION NEW DELHICONSUMER COMPLAINT NO. 200 OF 2012

 

M/s. Rajankumar & Bros (IMPEX) 1st Floor, Sugar House 93/95, Kazi Sayed Street, Masjid Bunder Mumbai – 400003

                                                      …  Complainant

Versus The Oriental  Insurance  Co. Ltd. Oriental House, A-25/27, Asif Ali Road New Delhi Through Its Divisional Office No.7 Magnet House, 3rd Floor N.M. Marg, Ballard Estate, Mumbai – 400 038

             … Opposite Party

 

BEFORE:

      HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER

      HON’BLE DR. S.M. KANTIKAR,  MEMBER

 

For the Complainant  : Mr.Syed Naqui, Advocate

                                     With Mr. Prem Prakash & Mr.Deepesh, Advocates

 For  the Opposite Party :   Mr. Arvind Gupta, Advocate

 

Pronounced     on     12 th     November, 2013

ORDER 

JUSTICE J.M. MALIK

1.    The  emphatic  view  taken by the Hon’ble Apex Court is  that  in a contract  of

insurance,  the rights and obligations are governed by the said terms of  the contract. Therefore,

the terms of a contract  of  insurance  have to be strictly construed  and no exception can be made

on the ground of equity.  In interpreting the documents  relating  to  a contract of  insurance,  the

duty of the Court is  to  interpret  the ‘words’, in  which  the  contract  is expressed by the parties

because, it is not for the court to make a new  contract, however  reasonable,  if the

parties  have  not  made  it themselves.  It  needs  little  emphasis  that  in  construing the terms of

the  contract  of  insurance,  the ‘words’  used therein, must be given

paramount  importance  and  it is not open for the Court  to add, delete or

substitute  any  words.  It is also well settled  that since upon issuance  of  an insurance

policy, the insurer undertakes to indemnify the loss  suffered  by  the  insured  on account of

risks covered by the policy, its terms have to be strictly construed to determine the extent of

liability of the insurer. Therefore, the endeavor of the court should always be to interpret the

words in which the contract  is  expressed  by the parties.  This  view was taken in a catena of

judgments by the Hon’ble Supreme Court in Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United

India Insurance Co. Ltd. & Anr., (2010) 10 SCC 567, General Assurance Society Ltd.

Vs.  Chandmull Jain, 1966 ACJ 267  (SC) 23, Harchand

Rai Chandan Lal’s case, 2005 ACJ 570 (SC), etc.

 

2.     The  main  question  in  this case swirls  around the question  whether  the consumer

complainant  has stated the truth in this case.  It must be borne in mind that insurance  policy is a

contract of insurance falling under the category of contract of uberrimae fidei, meaning thereby,

a contract of utmost good faith, by the assured.  [Satwant Kaur Sandhu Vs. New India Assurance

Co. Ltd., IV (2009) CPJ 8 (SC)].

 

3.      The facts of this case are these. M/s. Rajankumar & Bros., (IMPEX) is

a  partnership  firm  which transacts  the  business as Importers and Exporters of various

commodities, including  steel coils.  The Oriental  Insurance  Co. Ltd.,

issued  a  Marine  Cargo  Cover  dated 14.05.2010 for an insured  sum  of  Rs.6,25,62,500/-

only  covering  the voyage from any port  in China to  Taloja, Navi Mumbai, via

Mumbai  Port,  India, in  respect  of  the  said  cargo covered  under B/L No.K4, both dated

11.06.2010.  The  perils covered  were as per the Institute Cargo  Clauses

‘A’  War  and  SRCC  terms against  the payment of premium  amount  of   Rs.34,504/-  vide

premium  receipt  Ex.A.  The  complainant  vide  its  letter dated  26.05.2010  forwarded  to  the  

OP the particulars of  the   ship, Vessel,  namely, Khalijia -III, was  built  in  March,

1985,  Class  of   Vessel  as  IRS and other particulars  vide Ex.’B’ and

‘C’.  The   complainant  also  informed  Kirtanlal  & Sons,  intending agents of  the  Overseas

Sellers vide Ex.’C1’. 

 

4.      Hangzhou  Cogeneration (Hong Kong) Co.  Ltd.  through M/s. Kirtanlal & Sons,

shipped  80-prime hot rolled steel coils weighing 2000 MT on Board the Vessel Khalijia-III from

the Caofeidian Port, China to  the  complainant  for discharge  at Mumbai Port cargo totally

valued  at  USD 1263712.50 for  the said  consignment  under  Bill  of  Lading  No.K-4, dated

11.06.2010  and  issued  their  commercial  Invoice  dated 07.06.2010 to the complainant.  The

above said Sellers  negotiated  the  shipping documents, including the certificate that the said

Vessel was registered  with approved classification  Society  as  per the

Institute  Classification  Clause  and  Class Maintained  equivalent  to Lloyds 100 AI

and  that  the said Vessel  was  sea-worthy  which  was  not  more  than 30 years’

old.  The  shipping details  were furnished to M/s. Sun Insurance Brokers Ltd., of the OP,  with a

request  to issue the policy,  who, in turn, vide its letter dated

02.07.2010,  forwarded  the  same  to  the  

OP against  the cover  note Ex.’D’.  The  OP  accepted  the  above

said  particulars  and  specified  that  the  above  said  particulars  and  specified  that  the  cover  

issued  was as per the  Insurance Cargo Clause ‘A’.  No  other terms and conditions, clauses

and/or  warranties were  attached thereto.  The premium  was  accepted.

 

5.      The  said  Vessel  carried  on Board  some other consignments of Prime Hot  Rolled Steel

Coils  of  seven other importers who purchased and  imported  the  same  from the same Sellers.

The  total   of  such   coils  on  Board  of  the  said Vessel  was 1484   coils

weighing  about  30924.02 MTs.  The said Vessel completed  the

Voyage  and  reached Mumbai  Port , on or about, 06.07.2010 and was  allotted  berth on

14.07.2010,  for  discharge of  the cargo  on Board. On account of  the  failure of  Vessel’s  crane

during discharge,  further  discharge did not  take place and the Vessel was removed by  an order

of  the port  authorities from  her Berth.

 

6.      On 19.07.2010, the  complainant  came  to know  from a

Newspaper  report  that  the  Vessel  had run aground on the midnight  of 18.07.2010.

Apprehending  damage to their consignment on Board,  to aid the grounded  Vessel,  the

complainant  immediately  sent a  letter  dated 20.07.2010 to the OP informing about the  said

policy  vide  copy  Ex.F.  It also came to light  that  Owners

of  the  Vessel  had  engaged  services  of  Salvors, M/s. Smit Singapore  Private Ltd.,

for  salving  the  said Vessel and  the   cargo  on  Board.  On/or about  22.07.2010,   the

complainant  also  learnt  that  M/s.Richards Hogg Lindley (Piraeus, Greece) were appointed  as

General Average Adjustor, in short, ‘GAA’.  By an e-mail, dated

22.07.2010  sent  to  the  complainant  and  the OP  by the said GAA, it was stated, inter alia, that

the situation  had given rise to General Average and  the ship owners  had declared  General

Average Security and  had appointed  their Piraeus Office to

collect  the  General  Average  Security  prior  to  the  delivery of  the  cargo at  the destination. 

7.      The  complainant  requested  the OP to  issue  General Average Guarantee, Form ‘B’ as

required by the said General Average Adjusters  because  the cargo  could  not  be released to the

Cargo  Receivers,  until  they  furnished  the  security  documents  and  the

Salvors  had  received  satisfactory  salvage  security.  Cargo was to be released immediately in

order to avoid heavy port demurrage   charges  and  further  damage  to the  consignment.  The

OP agreed  and  undertook  to  pay  to  the ship  owners  or to the said

General  Average  Adjustors  on  behalf  of  the complainant in contribution  towards  general

average  and  which  salvage/ expenses  charges and/or special

charges  which  may  be ascertained  to be properly due in respect  of  complainant’s

consignment.   The complainant  took all those  documents  to

the  concerned  authority.  OP  also gave  the   requisite  separate salvage security.   In  addition

to the general  average security to be furnished  in  the  amount of 25% of C.I.F., value of  the

cargo  on Board  the Vessel or equivalent  to USD 256880.

8.      On the other hand,  the OP appointed M/s. W.K. Webster & Co., London

as  their   claim  settling  agents/representatives  in London

for  the  cargo  insured  by  them  on  the said  Vessel.   By  e-mail  dated  09.08.2010, Mr.

J.P.Vajpai of the OP2, Regional Office, Mumbai, informed  Stephen Fernandez  of  M/s. Richard

Hogg Lindley India Ltd.,  Mumbai, Mr. Mark  Meredith of M/s.W.K.Webster & Co., OP’s claim

settling agent/representatives  in London, the Salvors, M/s. Smith Pvt.

Ltd.,  Singapore,  Ms.Diana  Bowles  of Lloyds, London, Mr. Alex Pinto of  M/s. Richard Hogg

of Singapore and  Mr.R.K. Joshi of OP 1 & 2  that  the OP had  received  all  the  compliances as

required  under  Section 64VBA  of Insurance  Act  and  confirmed that the same were in order. 

 

9.      On 08.08.2010,  it was  reported  that  on 07.08.2010, there was

collusion   between  the  said  Vessel MV Khalijia –III  with a Navy  Vessel  MV Chitra,  in

waters on JNPT, Mumbai Port,  resulting, inter alia,  in oil spill from the  Vessel,  MSC

Chitra.  It is  alleged that the OP did not comply with their obligation to issue a  separate salvage

security as required by the said GAA  thereby  resulting

in  withholding  all  the  instructions  from  release of the complainant’s

consignment  at  Mumbai

Port,  though  the  complainant’s  said consignment  had  been  discharged  into  Mumbai  Port

Trust   premises.  On 13.08.2010, M/s. Smith Pvt. Ltd., the  Salvors,  claimed  a maritime lien

on  the  said  cargo.  As the OP did  not  issue a separate  salvage security as required, the

complainant’s  said  consignment  remained uncleared  in the Mumbai Port

Trust  premises   incurring  heavy   demurrage and   being  exposed  to likelihood of

further  damages. 

 

10.    In the meantime, Salvors had commenced Arbitration

proceedings  against   the  Owners  of  the  said Vessel and  the cargo  interests  in London and

obtained an ex-parte order dated 16.08.2010  restraining  the

cargo  owners  from  removing  the  cargo  from  the Mumbai Port Trust until a  salvage security

to the tune of USD 70.00  lakhs was furnished to the said Salvors, M/s.Smith Pvt. Ltd.,

Singapore.  The Salvors, M/s. Smith Pvt. Ltd., Singapore, filed  arbitration  petition  against the

owners of the Vessel, Mumbai Port  Trust  and the cargo owners, including the complainant

herein,  under  Section 9  of  the Arbitration and  Conciliation Act, 1996 in the Hon’ble

High  Court,  Mumbai and  obtained an  ex-parte  interim order dated 13.08.2010,  restraining

the  complainant   and  other cargo owners  from,  in any  manner,  directly  or

indirectly,  removing, taking away  and/or  releasing their respective  consignments  and  also

restraining the Mumbai Port Trust from giving  delivery or releasing the cargo to the

complainant and other cargo owners.  However,   the Hon’ble High Court  declined  to

continue  with the  order  dated  13.08.2010  vide its order dated 18.08.2010.  But the Hon’ble

High Court, Mumbai, by order dated 18.8.2010 continued the earlier interim reliefs,  till

24.08.2010.

11.    On 18-19.08.2010, the Complainant received a letter from M/s.Richard  Hogg Lindley

(Hellas) Ltd., the  General Average Adjustors revised  their demand for Salvage  from USD

256880 to USD 423864 based  on  the  said order  dated 16.08.2010, in the

arbitration  proceedings  in  London.  On 23.08.2010, the complainant  received  a letter from OP

informing them  that OP 1 were purportedly   withdrawing   the General

Average  Guarantee  Form  ‘B’  issued by  their  Divisional Office in respect of the

said   complainant’s  consignment insured  by  them  on the said Vessel MV Khalijia-III.  The

Hon’ble High Court of  Mumbai  vide  its  order  dated 24.08.2010,  directed  that  complainant

and other cargo owners would be  permitted  to  remove  their  respective  consignments from

Mumbai Port  Trust  premises on

furnishing  security  in  the  Form  of  Bank  Guarantee  in  the  aggregate  sum of Rs.14.00

crores and each of  the  cargo   owners  were to furnish separate guarantees,   proportionate to the

quantity mentioned in respect of the respective Bill of Lading.  The

Complainant  furnished  Bank  Guarantee  and took delivery  of  the said

consignment  from  Mumbai  Port  Trust  on 03.09.2010.   On 02.12.2011 the learned Arbitrator

passed the Award.

12.    The  complainant  vide  its letter  dated 02.02.2012, called  upon  the OP to clear  the loss

of  Rs.1,60,23,982/-. The  documentary  evidence was also annexed.  The complainant also

forwarded the  copy of  the  arbitration  award   dated  02.02.2011 and called upon  the OP to

clear the losses.  Legal  notice  was sent on 21.06.2012, reminder  was  also sent  on 04.07.2012,

but  which  went  unresponded.   Consequently,  this complaint  was  filed  with the following

prayers :-

“i.  A sum of Rs.1,61,32,953/- (Rupees one crore sixty one lakhs thirty two thousand nine hundred fifty three only) as compensation for the loss  suffered by the complainant together with interest @ 18% p.a. thereon from 20.08.2010 on the said claim.

ii.   A sum of Rs.1,00,00,000/- (Rupees one crore only) towards compensation for the loss caused and deficiency in services of the OP together with interest @ 18% p.a. thereon.

iii.  A sum of Rs.5,00,000/- (Rupees five lakhs only) being the legal and other incidental expenses incurred and to be incurred by the complainant.

iv.  to hold and declare  the OP to  be guilty of deficiency in service and unfair trade practice as per provisions of the C P Act, 1986.

v.  to direct the OP to rectify the defects in its service and pay the complainants a sum of Rs.1,61,32,953/-  as compensation for the loss claimed by the complainant together with interest @ 18% p.a. thereon from 20.08.2010 on the said claim.

vi.  to direct the OP to additionally pay to the complainants a sum of Rs.1,00,00,000/- towards compensation for the inconvenience suffered by the complainant due to the deficiency in services of the OP.

vii. to direct the OP to rectify the defects in its service and to further pay to the complainant a sum of Rs.5,00,000/-  being the legal and other incidental expenses incurred by the complainant for the present complaint.

viii.  For such other and further relief that this Hon’ble Commission may deem fit and proper in the nature and circumstances of the case”.

 

13.    The OP could not file the written statement within 45 days from its service.  Consequently,

the right to file the written version was forfeited,  vide order dated 14.05.2013. Thereafter, the

counsel for OP argued that the written arguments filed by him should be considered. The request

of the OP was again dismissed vide order dated 01.07.2013,  while placing  reliance on the three

Judges’ Bench of  the  Hon’ble Apex Court,  reported in  Dr.J.J.Merchant &

Ors. Vs. Shrinath Chaturvedi, III (2002) CPJ 8 (SC).

 

14.    Aggrieved by the order dated 01.07.2013, Special Leave to Appeal (Civil)

No.24705/2013  was filed by the Oriental Insurance Co., the OP, before the Hon’ble Supreme

Court . The Apex Court vide its order dated 13.08.2013, dismissed the said SLP.

 

15.    However, we have  heard  both the counsel  because the OP was permitted to raise the

arguments  on the legal questions only.    The OP tried to  make  submissions on various legal

points.  However, in  our  opinion, the key question is whether the ship in question  was  having a

‘class’?”.  The main grounds mentioned in the repudiation  letter dated 20.08.2010 which appear

to be valid, run as follows:-

“Re: Withdrawing the General Average Guarantees issued in respect of your cargo on Board M.V. Khalijia-3.       

Dear Sirs,

This  is to inform you that we are withdrawing the General Average (GA) Guarantees issued by  our  Divisional  Offices  in respect  of   your

Cargo insured by them on M.V. Khalijia-3.

After we had issued the GA Guarantees to the Average Adjusters appointed by the Ship owners, we have been advised by the Surveyors appointed by us, that the Vessel was NOT classed in accordance with the Classification Clause, attached to and forming part of the Policy of Insurance issued to you.

Since there is a breach of the terms and conditions of the Policy, we have no liability and hence our decision to withdraw the GA and Salvage Guarantees issued/arranged for by us.  This letter is issued without prejudice to our rights, privileges, liberties and immunities under law and contract, as applicable.

Sd/-

For The Oriental Insurance Co. Ltd”.

 

16.    It must be borne in mind that it is the complainant and nobody else who is to carry the ball,

in proving its case.  We have gone through  a number of documents filed by it. Counsel for the

complainant has invited our  attention towards letter written by the

complainant   dated  26.05.2010,  wherein  it was  mentioned as under :-

“With reference to the above, we would like to request you that our goods shipped from China to Mumbai by Vessel Khalijia-3, Qty: 2000 M/Tons.

We are sending herewith  shipped particulars with full details. Please kindly inform us whether this steamer is accepted by insurance company”.

 

17.    There is no inkling that the said letter was actually  sent  or  was  responded  by  the

OP.  We will assume that,  that the said  letter was not responded  by  the OP.  There is no

evidence worth  the name, which may go to show that the  second  letter,   in this

regard  or  reminder  was also sent.  The  complainant  has  produced on record, the ship

particulars which mention “Class - IRS”, which stands for  ‘Indian Registrar  of Shipping’.   Our

only finding is that this representation was falsely made.  There was no such

‘Class’.  Consequently, the value of the claim made  by the

complainant  stands  evanesces.   Mere ipse  dixit  on the part  of  the  complainant,  will not

do.  There must be some solid  and  unflappable evidence.  This is  one  of  the conditions  of  the

policy  dated 14.05.2010, wherein it was specifically mentioned :

“Term of Insurance : The risks under this policy are covered as per the following Clauses, current on  date of sailing or dispatch and/or other conditions/warranties otherwise stated herein and attached hereto:

Important Notice

Procedure in The Event  of  Loss/Damage

Institute War Atomic and Nuclear Exclusion

Institute Radioactive Contamination Exclusion Clause

Freight Brokers Warranty

Cargoism Clause

Termination Clause

Computer Millennium Cargo Clause

Institute Classification Clause

Institute Cargo Clauses (A)

Institute Tpnd Clause

Institute War Clauses (Cargo)

Institute Strike Clauses (Cargo)”.

 

18.    We  have  also  gone through the Oriental Insurance Company’s  letter which is part of Ex.

P-1, at page 59-A.  The Insurance Co. came to the following conclusion :-

“Classification  and Age

Our investigation reveals that the Khalijia-3 was classed with Lloyd’s until 10 Oct 2007, after which class was withdrawn by Lloyd’s.  We do not have a copy of your insurance certificate/policy.  However, we believe that it may incorporate the Institute Classification Clause. If it does, the relevant shipment would seem to fall outside the scope under the   Main Identity”.

 

 

19.    The moment this conclusion has been drawn by the Oriental

Insurance  Co. Ltd., it  was  the duty of  utmost importance on the part of  the

complainant  to  produce the certificate from IRS.  Why did the Lloyd not extend the ‘Class’?. 

 

20.    Both the counsel could not throw more light on this issue.  Consequently, we took the  help

of  the internet and found out  the text of  the Institute  Classification  Clause,  dated 01.07.1978,

the relevant portion of which,  runs as follows:-

“Cargoes and/or interests  carried by mechanically self-propelled vessels not falling within the classification of the above are held covered subject  to a premium and on conditions to be agreed.

Vessels over 15 years’ old, under 1000 G.R.T. and not classed by any one of the above classification societies attract additional rates provided in the tariff. 

It is possible to waive  additional premium for vessels over 15 years old but not over 25 years of age and engaged in overseas (import/export) voyages, if they are declared as ‘Liners’.  For this, it is necessary for the ship owner  on  the  steamer  agent   in India  to submit an application to the Advisory Committee, requesting  them  to declare  the vessel as a ‘Liner’.   The present rule should have completed at least one voyage to Indian Ports during the last 12 months.

Age Limitation:

2. Cargoes and/or interests carried by Qualified Vessels (as defined above) which exceed the following age limits will be insured on the policy or open cover conditions subject to an additional premium to be agreed.

Bulk or combination carriers over 10 years of age or other vessels over 15 years of age, unless they :-

 

2.1 have been used for the carriage of general cargo on establish and regular pattern of trading between a range of specified ports, and do not exceed 25 years   of age, or

2.2 were constructed  as container ship, vehicle carriers or double-skin open-hatch gantry crane vessels (OHGCS) and have been continuously used as such on an established and regular pattern of trading between a range of specified ports, and do not exceed 30 years of age”.

 

The case of complainant does not show that his case is covered under Clause 2.2.  

 

21.    It must be borne in mind that date of loss is 18.07.2010, the date of built of ship in question

is March, 1985.  The loss occurred  after a period of more than 25 years.  The

complainant  submitted that its Class is IRS.  This  is  a  stoke  and  shaky  explanation.  It

was  the  bounden duty  of  the  complainant to produce the Certificate

from  IRS,  even though  its  case is covered under Clause 2.2.  Its absence rocks the boats to a

dangerous extent.  Attempts  were made in vain to sweep  the truth under the mat.  The court is

not to be deceived by this lie.  The court  has to be empherical and  practical  in confronting  the

reality.  The  complainant  has tried to kick against  the pricks.  The complaint  is sans  merit and

deserves  dismissal which we hereby direct.  No order as to costs.

 

..…………………..………J

    (J.M. MALIK)

      PRESIDING MEMBER

  ……………….……………

                                                         (DR.S.M. KANTIKAR)

                                                                           MEMBER

 dd/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI      

 FIRST APPEAL NO. 262 OF 2008

(From the order dated 24.04.2008 in Complaint No.196/99 of the Delhi State Consumer Disputes Redressal Commission)

                                                                                                 M/s Rama Associates Ltd. Essel House B-10, Lawrence Road Industrial Area New Delhi-110035

                                                  ... AppellantVersus 

New India Assurance Co. Ltd. Through its Sr. Divisional Manager 97, Bajaj House 4th Floor, Nehru Place New Delhi-110019

                                                  …  Respondent

 

FIRST APPEAL NO. 263 OF 2008

(From the order dated 24.04.2008 in Complaint No.197/99 of the Delhi State Consumer Disputes Redressal Commission)

 M/s Rama Associates Ltd. Essel House B-10, Lawrence Road Industrial Area New Delhi-110035

                                                  ... AppellantVersus 

New India Assurance Co. Ltd. Through its Sr. Divisional Manager 97, Bajaj House 4th Floor, Nehru Place New Delhi-110019

                                                   …  Respondent

 BEFORE

           HON’BLE MR. JUSTICE D.K. JAIN, PRESIDENT

HON’BLE MRS. VINEETA RAI, MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

 For the Appellant

   

:  Ms. Deepa Chacko, Advocate

For the Respondent   :  Ms. Meenakshi Midha, Advocate

 Pronounced     13 th   November, 2013

ORDER

PER VINEETA RAI, MEMBER 

1.       M/s Rama Associates Ltd., Appellant herein and Original Complainant before the Delhi

State Consumer Disputes Redressal Commission (hereinafter referred to as the State

Commission) have filed these two appeals against a common order of the State Commission

passed in two complaints of the same date i.e. Complaints No. C-196/1999 and C-

197/1999.  Since the parties as also the cause of complaints are the same/similar, we also propose

to dispose of these appeals by a common order by taking the facts from First Appeal No.262 of

2008.

2.       FACTS:-

          Appellant/Complainant in his two complaints filed before the State Commission had

contended that it is an exporter of Indian long grain rice to various destinations abroad, for which

it had obtained an open marine insurance policy from the Respondent/Insurance Company for a

sum of Rs.15 Crores, which was later on revised to Rs.20 Crore on payment of additional

premium, for the period from 06.09.1995 to 05.09.1996 to cover the consignments of rice

exported by it against all manner of risks, including against physical loss/damage, jettison risk

etc. which might occur while transporting the rice by road/barges and from the port godowns to

loading on board the vessel within a 80 km radius.  On 29.11.1995 during the validity period of

the insurance policy, Appellant/Complainant had dispatched a boat containing 3837 bags of rice

for onward export to Switzerland and which was to be loaded onto a vessel at Kakinada Port

through different boats by using a sling.  During the process of loading, after 3629 bags were

safely loaded on the vessel, the weather suddenly deteriorated, the sea became rough and the

boat containing the remaining 208 bags of rice got flooded and became wet, because of which

these bags were declared unfit for being loaded and were, therefore, returned to the shore.  In

addition to the above, 568 bags containing 28.400 MT of rice fell into the sea and were lost while

these were being loaded on the vessel by different boats at different

times.   Appellant/Complainant immediately lodged a claim with the Respondent/Insurance

Company, who appointed a Surveyor.  The Surveyor vide its report dated 14.02.1996 assessed

the loss at Rs.85,001/- in respect of only the wet bags and the claim was not settled for the total

loss which was Rs.4,32,960/-. In November, 1997 Respondent/Insurance Company appointed

another Surveyor, who after investigations/enquiries submitted a detailed report recommending

settlement of the claim for the net loss which had occurred amounting to

Rs.4,00,310.25.  However, vide its letter dated 10.02.1999 the Respondent/Insurance Company

disregarding the report of its own Surveyor repudiated the claim on the ground that the

proximate cause of loss was rough weather which has been excluded by an express warranty in

the insurance policy.

          In the second complaint, Appellant/Complainant contended that during the validity period

of the insurance policy it had sent a boat with 2402 bags of rice to be loaded onto a vessel for

export to Singapore.  On this occasion also at about 4.00 p.m. after 148 bags were loaded the

weather suddenly deteriorated and the sea became very rough resulting in the flooding of the

cargo boat. 630 bags of rice were jettisoned into the sea to lighten the boat and to avoid total

loss.  The remaining 572 bags were brought back to the shore but were found to be wet.  Another

811 bags of rice fell into the sea and were lost during the course of loading on the vessel by

different boats on various dates and times.  Appellant/Complainant lodged a claim with the

Respondent/Insurance Company in respect of the jettisoned, lost and wet bags.  The Surveyor

assessed the net loss at Rs.4,73,124/-.  However, in this case too, the Respondent/Insurance

Company repudiated the claim on similar grounds as the first complaint, namely, that the

proximate cause for loss was willfully loading the boats in rough weather which has been

excluded by an express warranty in the insurance policy.  Appellant/Complainant, therefore,

filed a complaint on grounds of deficiency before the State Commission and requested that the

Respondent/Insurance Company be directed to settle the claims as per the report of the

Surveyor alongwith 18% interest from 03.11.1995 as also compensation of Rs.1,00,000/- for

mental pain and harassment and litigation costs of Rs.20,000/-.

3.       Respondent/Insurance Company on being served filed a written rejoinder denying any

deficiency in service and stated that the loss occurred due to the willful act and negligence on the

part of Appellant/Complainant, who had deliberately undertaken the loading of rice by the boats

to the vessel during rough weather, which was excluded by an express warranty clause in the

insurance policy.

4.       The State Commission, after hearing the parties, allowed the complaints and directed the

Respondent/Insurance Company to pay the Appellant/Complainant a total amount of

Rs.9,06,084/- towards the loss in respect of claims made in both complaints as assessed by the

Surveyor.  Rs.1,00,000/- was awarded as compensation for mental agony and harassment and

Rs.10,000/- as litigation costs.  The relevant part of the order of the State Commission reads

as follows :

“15.    In the instant case the OP has failed to discharge the onus to prove that the loading or unloading was willfully or deliberately done in the weather conditions which were not suitable and with an ulterior motive to have a wrongful claim against insurance policy.  In this regard the report of the Surveyor come handy and it has particularly stated that the weather conditions were not such that loading and unloading could not be operated.

 16.     Cumulative effect of all these facts and circumstances prove that the claim of the complainant was wrongfully repudiated and without any basis and there being no convincing evidence as suspicion howsoever strong it may be cannot take place of proof that the loading was done intentionally or deliberately when the weather conditions were not suitable.  No person of ordinary prudence would take such step if he knows the weather conditions are most unsuitable and consignment may be damaged completely.”

 

          While this order was accepted by the Respondent/Insurance Company, who paid

the decreetal amount in November, 2008, it has been challenged by the Appellant/Complainant

on the ground that the actual loss as reflected in both complaints was Rs.11,73,301/- and not

Rs.9,06,084/- as awarded by the State Commission.  The State Commission also erred in not

awarding interest on the insured amount. 

5.       Learned Counsel for both parties made oral submissions. 

6.       Counsel for the Appellant/Complainant brought to our notice the report of the Surveyor

(J.B. Boda Surveyors Pvt. Ltd.), whose survey report had been accepted by the State

Commission.  In this connection, she stated that while the Surveyor had concluded after

investigations that the loss in all the 5 claims as projected by the Appellant/Complainant was

correct and had quantified the monetary loss in respect of 3 of the claims amounting to

Rs.9,06,084/-, perhaps through oversight the Surveyor failed to quantify the monetary loss in

respect of 2 claims i.e. Claim No.21/310502/96/002  and Claim No. 21/310802/96/077

amounting to Rs.2,45,518/-.  It is perhaps because of this reason that the State Commission also

did not include the monetary loss in respect of 2 claims while calculating the actual insurance

amount, which it directed should be paid to the Appellant/Complainant.  The actual amount

payable is Rs.11,73,301/-.  Thus, Respondent/Insurance Company still has to pay Rs.2,67,217/-

to the Appellant/Complainant

          Counsel for the Appellant/Complainant further stated that the Respondent/Insurance

Company was clearly guilty of deficiency in service in not only repudiating the just claim of the

Appellant on flimsy grounds i.e. that the weather conditions were unfavourable while the loading

was undertaken, which was clearly disproved by credible evidence on record but also the

inordinate delay in settling the claim.  Therefore, compensation for deficiency in service was

justified.  The State Commission while taking cognizance of this fact had awarded a token

compensation of Rs.1,00,000/- but had erred in not granting interest on the insured amount.  It is

well accepted that when an Insuree is deprived of the right to enjoy its money or investing

money in business because of delay in settling the claim, it has to be compensated by way of

payment of interest by the Insurance Company.  In this connection, learned Counsel cited a

judgment of Hon’ble Supreme Court in United India Insurance Co. Ltd. V. M.K.J. Corporation

[III (1996) CPJ 8 (SC)], wherein the Apex Court has ruled as under :-“9.      The next question is : what rate of interest the insured-respondent is entitled to get?  In common parlance, when the insured-respondent is deprived of right to enjoy his money or invest the money in business, necessarily the loss has to be compensated by way of payment of interest by the Insurance Company.  We are informed that as per the directions of the Government of India the appellant-Insurance Company has no option but to invest the money in the securities specified by the Government of India under which the Insurance Company is securing interest on investment at the rate of 11.3% per annum.  Under these circumstances, the appellant-Insurance Company is liable to pay interest @ 12% per annum from January 1, 1991 till date of payment.  It is then contended that as per the policy, the respondent is entitled to consequential loss as per the independent policy.  The Commission no doubt did not give any independent reason for the same but all the claims were heard and disposed of together.  Under these circumstances, we are of the view that the claims must be deemed to have been rejected.” 

          It was contended that applying the same principle in the present case,

Respondent/Insurance Company is liable to pay interest on the amount of Rs.9,06,084/-  @ 12%

from 09.03.1998 i.e. two months after the second surveyor had given its report till November,

2008 when the said amount was paid to the Appellant/Complainant in compliance with the order

of the State Commission. In respect of Rs.2,67,217/-, which is yet to be paid to the

Appellant/Complainant, the Respondent/Insurance Company is liable to pay interest on the same

rate from the date of the order of the State Commission i.e. 24.04.2008 till October, 2013.  

7.       Counsel for the Respondent/Insurance Company, after going through the survey report and

taking instructions from the Respondent/Insurance Company, fairly concedes that since the

survey report had been accepted by the State Commission and no appeal against the same had

been filed by the Respondent/Insurance Company, it would be willing to pay the additional

amount of Rs.2,67,217/- over and above the amount of Rs.9,06,084/- already paid to the

Appellant/Complainant in terms of the order of the State Commission as also compensation of

Rs.1,00,000/-. However, interest on these amounts may not be pressed.

8.       We have heard learned Counsel for both parties and have gone through the evidence on

record, including the survey report.  After going through the same, we agree with the contention

of Counsel for the Appellant/Complainant that the Surveyor had after investigations confirmed

that all the 5 insurance claims were correct and also that the weather at the time of loading was

not adverse.  We also note that it is factually correct that the Surveyor had quantified the

monetary loss in respect of only 3 of the claims amounting to Rs.9,06,084/- and not for 2 claims

wherein the loss was Rs.2,45,518/-.  In view of these facts, which has also now been accepted by

the Respondent/Insurance Company, we confirm that the total amount to be paid to the

Appellant/Complainant by the Respondent/Insurance Company is Rs.11,73,301/- and not

Rs.9,06,084/- as erroneously awarded by the State Commission.  In view of the action of the

Respondent/Insurance Company in repudiating the claim on grounds of weather being adverse,

which was disproved by credible evidence on record, we also agree with the conclusion of the

State Commission that there was deficiency in service in wrongly repudiating the claim and,

therefore, the compensation of Rs.1,00,000/- is justified.

9.       So far as payment of interest on Rs.11,73,301/- is concerned, respectfully following the

judgment of the Hon’ble Supreme Court in M.K.J. Corporation (supra), we agree that the

Appellant/Complainant is entitled to interest on the insured amount from the dates that they

became due.  However, the rate of interest at 12% sought by the Appellant/Complainant and

which was prevalent in 1993, when the complaint in M.K.J. Corporation (supra) was filed, was

much higher than the rate of interest prevalent on investments made in Government securities in

1999, when the present complaints had been filed before the State Commission and was around

9%.  In 2008 the rate of interest on such securities has further come down to about

6%.  Therefore, in view of these facts, we direct that the Respondent/Insurance Company should

pay interest at the rate 9% per annum on the sum of Rs.9,06,084/- from March, 1998 i.e. two

months after the second surveyor had given its report till November, 2008 when

the decreetal amount was paid to the Appellant/Complainant by the Respondent/Insurance

Company.  Interest at 9% calculated on this amount for the above period is Rs.8,56,249/-.  So far

as the sum of Rs.2,67,217/- is concerned, which is still to be paid to the Appellant/Complainant

by the Respondent/Insurance Company, interest at 6% on this amount is to be calculated from

April, 2008 when the said amount became due, till October, 2013, which comes to Rs.88,181/-.

10.     To sum up, we partly modify the order of the State Commission and direct the

Respondent/Insurance Company to pay the Appellant/Complainant a sum of Rs.2,67,217/- in

addition to Rs.9,06,084/- already paid to the Appellant/Complainant in terms of the order of the

State Commission in 2008.  Further, as indicated above in the foregoing paragraphs,

Respondent/Insurance Company is in addition directed to pay the Appellant/Complainant

Rs.8,56,249/- being the interest on Rs.9,06,084/- as also Rs.88,181/- being the interest on

Rs.2,67,217/-. Thus, the total amount to be paid by the Respondent/Insurance Company to the

Appellant/Complainant comes to Rs.12,11,647/-. Respondent/Insurance Company is directed to

pay this amount to the Appellant/Complainant within a period of two months from the date of

receipt of copy of this order.  The order of the State Commission relating to the award of

compensation and litigation costs remains unaltered.  The First Appeals stand accepted in the

above terms. 

 Sd/-

(D.K. JAIN, J.) PRESIDENT

Sd/-

(VINEETA RAI) MEMBER

  Sd/-

(VINAY KUMAR) MEMBER

Mukesh           

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO.2874 OF 2012(From the order dated 19.04.2012 in First Appeal No.35/2008 of theHaryana State Consumer Disputes Redressal Commission, Panchkula) Rugs India (100 percent EOU) A partnership firm having its office at: Plot No.183, A and B, Sector 25, Part-II, HUDA, Panipat, Haryana Through its partner: Mr. Lalit Goel                                                                                     ..…. Petitioner

                                               VersusM/s ICICI Lombard General Insurance Co. First Floor, SCO 24025, Sector 8-C, Madhya Marg, Chandigarh

                                                              ..... Respondent BEFORE:HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER 

For the Petitioner                :  Mr. Manorajan Sharma, Advocate

For the Respondent                        :  Mr. Amit Tyagi, Advocate 

PRONOUNCED   ON     :     13 th       November,     2013

                                                  ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

            This revision petition is directed against the order of the State Commission dated

19.4.2012 whereby the State Commission accepted the appeal of the respondent/opposite party

against the order of the District Forum and dismissed the complaint. 

2.       Briefly put, the facts relevant for the disposal of this revision petition are that the

complainant- firm obtained an insurance policy from the opposite party for period from

15.6.2005 to 14.6.2006. On 8.5.2006 fire broke in the insured premises due to which the

petitioner/complainant suffered loss. Incident was intimated to the insurance company. A

surveyor was deputed who after conducting necessary survey and investigation assessed the loss

suffered by the complainant to the tune of Rs.30,76,654/-. Pursuant to the survey report the

respondent/opposite party sentcheque for the even amount to the petitioner with a covering letter

dated 01.09.2006, which reads thus: - 

“We are pleased to inform you that your claim referred above has been approved for full settlement amount of Rs.30,76,654/. We are hereby enclosing the Cheque of Rs.30,76,654/- vide Cheque No.104140 dated 29- August- 2006 drawn on ICICI Bank Ltd. We thank you for the opportunity to serve you and assured you best the services at all times.”

 

3.       The complainant encashed the cheque and sent a protest letter to the respondent which

reads thus:- 

“Sir,

          We have received your cheque No.104140 of Rs.30,76,654.00 dated 29.08.2006 towards our above said claim. We have received your cheque under protest since our claim is for Rs.44,04,015.00. You are therefore requested to send/provide us copy of Surveyor Report alongwith copy of work sheet, how this amount has been arrived.

Kindly provide the above information/document under Right to Information Act 2005 failing which we shall be compelled to take legal action under the said Act. We are enclosing herewith draft of Rs.50.00 in the favour of ICICI Lombard General Insurance Co. Ltd. No.084783 Dated 04.092006 payable at Mumbai towards fee payable to you for providing the information under the said Act.”

  

4.       The respondent/opposite party failed to pay to the petitioner the difference of the claim of

the petitioner to the tune of Rs.44,04,015/- and the amount of the cheque. This led to the filing of

the consumer complaint by the petitioner alleging deficiency in service on the part of the

opposite party. 

5.       The opposite party resisted the claim by filing the written statement wherein a plea was

taken that the cheque for Rs. 30,76,654/- was sent to the complainant in the full and final

settlement of the claim and by accepting the cheque the complainant has agreed to settle the

claim and as such it is estopped from reopening the matter. 

6.       The District Forum on consideration of the pleadings of the parties and evidence found

deficiency in service on the part of the opposite party and allowed the complaint with following

directions: - 

“For the reasons recorded above, we accept the present complaint and direct the OPs to make the payment of Rs.8,90,000-00 together with interest at the rate of 9% per cent from 29.8.2006 the date when the OPs made the payment earlier to the petitioner till realization and a sum of Rs.3300/- as litigation expenses within a period of thirty days from the date of receipt of this order. Parties concerned be communicated of the order accordingly and file be consigned to the records after due compliance.”

 

7.       Feeling aggrieved by the order of the District Forum, respondent/opposite party preferred

an appeal before the State Commission and the State Commission without referring to the merits

of the case allowed the appeal on technical ground with following observations: - 

“On behalf of the appellant it has been argued that the amount of Rs.30,76,654/- was paid to the complainant vide cheque No.104140 dated 29.8.2006 which was drawn from ICICI Bank Ltd. In favour of M/s Rugs India and therefore after receiving the aforesaid amount, the complainant has no right to reopen its claim.”

 

8.       Shri Manoranjan Sharma Advocate, learned counsel for the petitioner has contended that

the impugned order of the State Commission is based upon incorrect reading of the judgment of

the Supreme Court in the matter of Bhagwati   Prasad   Pawan   Kumar vs. Union of India  (2006) 5

SCC 311. Expending on the argument learned counsel for the petitioner contended that the State

Commission failed to appreciate that in Bhagwati   Prasad   Pawan   Kumar  case (supra) the Indian

Railways had forwarded the cheque against the claim of

 

the claimant of that case making it clear in the forwarding letter that in case the offer of the

Railway was not acceptable the cheque should be returned forthwith failing which it would be

deemed that the claimant has accepted the offer in full and final settlement of his claim. Learned

counsel argued that in the instant case no such condition was mentioned in the covering letter of

the cheque. Therefore the acceptance of cheque by the petitioner under protest cannot be termed

as full and final settlement of the claim by the petitioner. Learned counsel for the petitioner thus

urged us to accept the revision petition and set aside the impugned order of the State

Commission and restore the order dated 29th October, 2007 passed by the District

Forum, Panipat. 

9.       Shri Amit Tyagi Advocate, learned counsel for the respondent on the contrary has argued

in support of the impugned order. He has drawn our attention to the covering letter dated

01.09.2006 vide which the cheque for Rs.30,76,654/- was sent to the petitioner- Company and

argued that the letter clearly mentions that the aforesaid amount has been approved for full and

final settlement claim of the petitioner and therefore by accepting the cheque the petitioner has

entered into full and final settlement. As such the State Commission has rightly held that the

petitioner is estopped from reopening its claim by filing the consumer complaint.

 

 

10.     The only question for determination in this revision petition is whether the acceptance of

cheque of Rs.30,76,654/- sent to the petitioner alongwith covering letter dated 01.09.2006

amounts to the acceptance of the amount in full and final settlement of the claim of the petitioner

and that as a consequence, the petitioner is estopped from re-agitating his claim by filing the

insurance claim?

11.     In order to find answer to the above question, it is necessary to have a careful look on the

letter dated 01.09.2006 vide which the cheque of Rs.30,76,654/- was sent to the petitioner.  On

reading of the contents of the aforesaid letter reproduced in para 2 of this order, we find that vide

this letter, the respondent had informed the petitioner that they have approved a sum of

Rs.30,76,654/- for full settlement of his claim.  This in our view only amounts to conveying the

information about the amount approved against the insurance claim and it cannot be taken as an

offer for full and final settlement of the dispute particularly when there is nothing on the record

to suggest that prior to issue of this letter, any negotiation for amicable settlement of the claim

between the parties was going on.  It is pertinent to note that as per record within three days of

said letter, the petitioner had written a protest letter dated 04.09.2006 asking the opposite party

insurance company to send copy of the surveyor report alongwith copy of the calculation sheet

indicating the manner in which the amount of loss has been quantified.  The aforesaid conduct of

the petitioner in immediately sending a protest letter is clear indication of the fact that he

accepted the cheque as on account payment against its claim of Rs. 44,04,015/- under

protest.  The State Commission in our view has misread the judgment of the Supreme Court in

the matter of Bhagwati Prasad Kumar (supra) and it failed to appreciate that the aforesaid

judgment is based upon the entirely different facts.  In that case, Indian Railways had send the

cheque to the claimant in full and final settlement of the claim making it clear that if the offer

was not acceptable, the claimant should return the cheque.  In the instant case, there is no such

stipulation in the letter dated 01.09.2006.  Therefore, use of words “claim has been approved for

full settlement” cannot be termed as an offer given to the petitioner for full and final settlement

of the insurance claim.  Thus, in our view, the State Commission  has committed a grave error in

holding that acceptance of cheque sent by the insurance company amounts to offer of full and

final settlement by the petitioner. 

12.     Considered from the other angle, admittedly the petitioner had taken a standard fire and

special peril policy from the opposite party on payment of premium. As per the insurance

contract the opposite party has agreed to indemnify the petitioner for the loss, if any, caused

because of fire besides other reasons. Admittedly, the petitioner has filed a claim of

Rs.44,04,015/- and that the respondent/opposite party on the basis of the report of assessor

approved the payment of Rs.30,76,654/- against the claim.  Merely because, there was a

mismatch between the amount claimed by the petitioner and the loss assessed by the Surveyor,

the opposite party was not justified to withhold the payment and send the cheque of the approved

amount with a rider that aforesaid amount was approved as full settlement of the claim.  In all

fairness, since the opposite party had entered into a contract to indemnify the petitioner for the

loss suffered,  it was required to remit the amount of loss quantified and approved by it on the

basis of the assessor report unconditionally to the petitioner. By imposing the condition and

using the words that the amount of Rs.30,76,654/- was “approved in full settlement of the

claim”, the opposite party has impliedly exerted pressure on the petitioner by indicating that the

claimant should accept the amount as full settlement or have recourse to legal remedy.  This

offering of the cheque subject to the condition, in our view, amounts to unfair trade practice as

also coercion.  Thus the acceptance of the cheque sent alongwith the letter dated 01.09.2006

under protest by the petitioner is fully justified and cannot be taken as full and final settlement of

insurance claim.

13.     In view of the discussion above, we are of the opinion that impugned order of the State

Commission is based upon incorrect appreciation of facts and misreading of the judgment of the

Supreme Court.  Revision petition is, therefore, accepted and impugned order is set aside.  Since

the State Commission has not considered the merits of the appeal, we remand the matter back to

the State Commission with direction to rehear the appeal and decide the same on merits. 

14.     Parties are directed to appear before the State Commission on 27.11.2013. 

15.     Since this is an old matter, State Commission is requested to decide the appeal within three

months. 

                                                       ………………………….     (AJIT BHARIHOKE, J)      (PRESIDING MEMBER)

                                                                    …………………………                                                        (SURESH CHANDRA)                                                                            MEMBERRaj

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

FIRST APPEAL NO.780 of 2006(From the Order dated 03.11.2006 in Complaint Case No.C-213/96 of the StateConsumer Disputes Redressal Commission, Delhi)

 M/s. State India Express (Regd.) 20-1, Hansraj Damodar Wadi, Near Kennedy Bridge, Mumbai-400004

                                                ..  AppellantVs.

1.      M/s. Ranutrol Ltd. F-85, Okhla Industrial Area, Phase-I New Delhi-110020 2.      New India Assurance Co. Ltd. Bajaj House, Fourth Floor, Nehru Place, New Delhi

                                             ..Respondents 

AND FIRST APPEAL NO.116 of 2007(From the Order dated 03.11.2006 in Complaint Case No.C-213/96 of the StateConsumer Disputes Redressal Commission, Delhi)

 M/s. New India Assurance Co. Ltd. Jeewan Bharti Building Connaught Place, New Delhi-110001

                                            ..  Appellant Vs.

1.      M/s. Ranutrol Ltd. F-85, Okhla Industrial Area, Phase-I New Delhi-110020  2.      M/s. State India Express (Regd.) 1619, Madrasa Road, Kashmere Gate, Delhi-110006

                                                 ..Respondents 

BEFORE: -HON’BLE MR. JUSTICE D.K. JAIN, PRESIDENT

 HON’BLE MRS. VINEETA RAI, MEMBER HON’BLE MR. VINAY KUMAR, MEMBER

 For the Appellant in FA No.           : Mr. K.S. Singh and Ms.780/06 and Respondent No.2          Tripta, Advocatesin FA No.116/07 For the Appellant in FA No.           : Mr. Nitesh, Advocate116/07 and Respondent No.2         in FA No.780/06 For the Respondent No.1 in          : Mr. Aditya Kumar,both the Appeals                                        Advocate  O R D E R(Pronounced on  18th    November, 2013) D.K. JAIN, J., PRESIDENT

 

          These two appeals under section 19 of the Consumer Protection Act, 1986 (for short

“the Act”) are directed against common order dated 03.11.06, passed by the State Consumer

Disputes Redressal Commission, Delhi (for short “the State Commission”) in Complaint

Case No. C-213/96.  By the impugned order, the State Commission has awarded to the

Complainant, a compensation of `4,54,272/- for the actual loss suffered by them due to the

negligence of M/s. State India Express (Regd.), (for short, “the Courier”), the appellant in

F.A No. 780/2006, on account of non-delivery of the goods booked with them to the

consignee. The State Commission has also directed that the amount of compensation as also

the cost of proceedings, quantified at `10,000/-, would be shared equally by New India

Assurance Co. Ltd. (for short, “the Insurance Company”), the Appellant in F.A No. 116 of

2007, with the Courier.

2.      The complainant Company, engaged in the manufacture of various goods including

thermostats, booked a consignment of 50 boxes, containing 6000 pieces of thermostats, with

the Courier on 09.06.1994 vide receipt No. 7824, on door delivery basis at Bombay. The

consignee was M/s Godrej GE Appliances. As per the goods receipt the goods were valued

at`4,54,272/-. The courier charges were `8,000/- on FOR basis.  Admittedly, the consignment

was insured with the Insurance Company.  

3.      On being informed by the consignee about non-receipt of the goods, the Complainant

vide letter dated 26.6.1994 requested the Courier to look into the matter and take steps to

trace the consignment.  Having failed to get any response, vide letter dated 04.07.1994, the

Complainant again asked the Courier to arrange for immediate delivery of goods, urgently

required by the consignee. The Courier was also warned that in the event of any claim by the

consignee due to non-delivery of the goods, they would be responsible.    

4.      Responding to  letter dated 04.07.1994,  the Courier,  vide their letter dated 13.07.1994,

informed the Complainant that one, Anil Sharma, an employee of the Complainant, had

personally taken the delivery of the consignment on 11.06.1994 by producing the original

goods receipt (GR) issued at the time of its booking, after making   cash payment of `8,500/-

towards cargo charges. It was alleged that being fully aware of delivery of the consignment

to the said Anil Sharma, the complainant had never enquired from their delivery office about

the whereabouts of the goods, which showed some conspiracy at the end of the

Complainant.  Thus, the Courier denied their liability towards the consignment.  

5.      By letter dated 04.08.1994, the Complainant again advised the Courier to trace out the

consignment and deliver it to the consignee or in the alternative pay a sum of  `4,54,272/-

being the value of the goods.  It was stated that if they do not get response from the Courier

within 20 days of the receipt of the letter, the Complainant would be compelled to initiate

legal proceedings against them.  On 12.08.1994, the Complainant addressed yet another letter

to the Courier asking them to make good the loss of `4,52,272/-, being the value of the

consignment. Legal action for wrong delivery of consignment was also threatened.  Since,

the said communication has some bearing on the case, relevant portion of the same is

reproduced below:-“           In this context, please refer our letter no. RL: 94-95/ 1515 dt. 4th August’ 94, wherein it has been made abundantly clear to you that we have not authorized you to make delivery of the consignment to any person and it was not at all appropriate on your part to deliver the goods on the basis of a telephone call.     You are, therefore, solely responsible for wrong delivery to an unauthorized person, and as such liable for consequent damages and loss.  Accordingly, we once again advise you to make good our loss and send us your cheque for Rs.4,54,272/- being value of the consignment without any further delay, failing which we shall be left with no other alternate but to proceed against you in the Court of Law. 

As has already been conveyed, we reserve our right to lodge further claim/damages due to wrong delivery of the consignment by you.”

 

Having failed to get any response from the Courier, a complaint u/s 17 of the Act was

filed by the Complainant. Since the copy of the complaint placed on record is undated, from

the verification it is clear that the complaint was filed on or after 12.08.1996.  

6.      The complaint was resisted by the Courier. The para-wise written statement filed on

their behalf was one of total denial.  It was reiterated that the consignment was delivered to

Anil Sharma as there was a specific endorsement of transfer in his favour on top of the G.R.

at the request of the Complainant. Objection regarding territorial jurisdiction of the State

Commission of Delhi was also raised. The Insurance Company chose not to file reply to the

complaint.

7.      As noted above, the stand of the Courier has not found favour with the State

Commission.  The State Commission has observed  that admittedly, the consignee

was  Godrej G.E. Appliances and the stand of the Courier that the consignment was delivered

to Anil Sharma on production of the Goods Receipt, could not be accepted because they have

failed to place on record any delivery report.  According to the State Commission mere

possession and production of GR was not sufficient to establish that the consignment was

actually received by Anil Sharma; as per the terms of the contract between the Complainant

and the Courier, which is binding on the parties, the consignment had to be delivered directly

to M/s Godrej G.E. Appliances and any endorsement on the original GR to deliver it to Anil

Sharma was of no consequence.  Accordingly, finding the Courier guilty for deficiency in

service, the State Commission has awarded the afore-stated compensation. Being aggrieved,

both the Courier as well as the Insurance Company are before us in these two appeals.

8.      We have heard Ld. counsel for the parties. Ld. Counsel appearing for the Courier

contended that the complaint was time-barred inasmuch as, vide their letter dated 13.07.1994,

while informing the Complainant about the delivery of the consignment to Anil Sharma on

11.06.1994, the Courier had denied their liability qua the Consignment. Yet, the complaint

was filed only on 12.08.1996, i.e. beyond the period of two years from the date on which the

cause of action had arisen. It was also urged that in absence of any evidence on record, the

State Commission has erred in assessing the loss to the complainant to the tune

of `4,54,272/-.

9.      Ld. Counsel appearing for the Insurance Company submitted that since the services of

the Courier were availed of by the Complainant for commercial purpose, the Complainant

was not a “Consumer” within the meaning of Section 2(1)(d) of the Act and, therefore, the

Complaint under the Act was not maintainable.  The issue of territorial jurisdiction of the

Delhi State Commission was also raised.

10.    Ld. Counsel appearing for the Complainant, on the other hand, supported the decision

of the State Commission.  Written submissions on behalf of the Complainant have also been

filed.  Dealing with the issue of limitation, it is pleaded that the cause of action in the matter

arose and continued to arise from 11.06.1994, i.e. the date on which the consignment was

allegedly delivered by the appellant to Anil Sharma.  Thereafter, the complainant was

engaged in correspondence with the Courier for a significant period and in any case till

12.08.1994, when the Courier was once again called upon to make good the losses suffered

by the Complainant. It is thus asserted that even if the said letter is considered to be the last

correspondence, the complaint filed on 12.08.1996 was within the period of limitation, as

prescribed in Section 24A of the Act.  On merits, it is urged that the contract between the

Complainant and the Courier was for delivery of the goods to the consignee on door-delivery

basis and, therefore, the alleged handing over of the consignment to Anil Sharma and that too

without any contractual or otherwise understanding between the contracting parties was a

clear case of gross deficiency in service.  Controverting the stand of the Courier that the

evaluation of quantum of loss is without any basis, it is pointed out that the value of the

goods declared in the invoice, i.e. `4,54,272/- which formed part of the complaint, was never

disputed by the Courier or the Insurance Company.   Contesting the stand of the Insurance

Company that they could not be made liable for the negligence of the Courier, it is urged that

the consignment under transit being fully insured with them,  its non-delivery to the

consignee in violation of the terms of the contract makes the insurer equally liable under the

transit insurance policy.

11.    Thus, the first and the foremost question for consideration is whether on facts at hand,

the complaint preferred by the Complainant was barred by limitation?

12.    Before dealing with the question, it is necessary to note that  neither in the written

statement filed on behalf of the Courier nor during the course of hearing before the State

Commission, objection as to the Complaint being time-barred was raised. Hence, the State

Commission had no occasion to deal with the question.  Nevertheless, the question of

limitation being a question of law which can be raised at any stage of pending proceedings,

we are of the opinion that in light of the provision in Section 24A of the Act, it is obligatory

on our part to examine the issue irrespective of the fact as to whether such a plea had been

raised before the State Commission. Moreover, there is no dispute on facts, material for

determination of the question of limitation.

13.    Section 24A of the Act prescribes limitation period for admission of a complaint by the

Consumer Fora as under:-

“[24A. Limitation period. - (l) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

 

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay].

 

14.    The aforesaid provision bars any fora set up under the Act, from admitting a complaint,

unless the complaint is filed within two years from the date on which “the cause of action”

has arisen.  The provision expressly casts a duty on all the fora not to entertain a complaint

which is filed beyond the period prescribed in the Section, unless the complainant satisfies

the consumer forum, that the complainant had sufficient cause for not filing the complaint

within the period of two years from the date on which the “cause of action” had arisen. 

15.    In State Bank of India   Vs . B.S. Agriculture Industries (I) (2009) 5 SCC 121  explaining

the mandatory nature of Section 24-A of the Act, the Supreme Court has opined thus:-“11…. It would be seen from the aforesaid provision that it is peremptory in nature and requires the consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action.   The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown.  The expression, ‘shall not admit a complaint’ occurring in Section 24-A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder. 12.       As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing.  In other words, it is the duty of the consumer forum to take notice of Section 24- A and   give effect to it.     If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”(Emphasis supplied by us)

 

16.    Recently, in V.N.   Shrikhande   (Dr.) Vs. Anita   Sena   Fernandes   (2011) 1 SCC 53,  the

Supreme Court has again explained the nature and scope of Section 24-A of the Act.

Referring to its earlier decisions in State Bank of India   Vs . B.S. Industries (I) (Supra)

and   Kandimalla   Raghavaiah   & Co. Vs. National Insurance Co. Ltd. &   Anr . (2009) 7 SCC

768,   the Court held as under:-“           15.       Section 24-A(1) contains a negative legislate mandate against admission of a complaint which has been filed after 2 years from the date of accrual of the cause of action.  In other words, the Consumer Forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen.  This power is required to be exercised after giving opportunity of hearing to the Complainant, who can seek condonation of delay under Section 24-A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24-A(1).  If the complaint is per se barred by time and the Complainant does not seek condonation of delay under Section 24-A (2), the Consumer Forums

will have no option but to dismiss the same.  Reference in this connection can usefully be made to the recent judgments in SBI Vs. B.S. Agriculture Industries (I) and Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd. “

 

17.    Therefore, as a matter of law, Section 24-A of the Act mandates that before admitting a

complaint, all the forums, constituted under the Act, must examine whether or not the

complaint under the Act has been preferred within two years from the date on which “the

cause of action” has arisen. 

18.    The term “cause of action” has not been defined in the Act.  Therefore, the term has to

be interpreted keeping in view the context in which it has been used in the Act and the

meaning assigned to it by judicial pronouncements. In Kandimalla   Raghavaiah   & Co.   Vs .

National Insurance Co. Ltd. &   Anr . (supra)  explaining the meaning and import of the term “

cause of action” the Supreme Court has observed as follows:-“18.     The term “cause of action” is neither defined in the Act nor in Code of Civil Procedure, 1908 but is of wide import.  It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual or right to sue.  Generally, it is described as “bundle of facts”, which if proved or admitted entitle the plaintiff to the relief prayed for.  Pithily stated, “cause of action” means the cause of action for which the suit is brought. “Cause of action” is cause of action which gives occasion for and forms the foundation of the suit.”

 

19.    Thus, the term “cause of action” is cause of action which gives occasion for and forms

the foundation of the suit, which obviously has to be decided on the facts of each case.   It has

now to be seen as to when, on the facts of the instant case, the “cause of action” accrued.

20.    As already noted, in response to Complainant’s letter dated 04.07.1994, the Courier

informed them that one Anil Sharma, an employee of the Complainant, had taken delivery of

the consignment on 11.06.1994.  In unequivocal terms they told the Complainant that having

delivered the goods on production of GR and payment of cargo charges, they had no liability

qua the subject consignment.  In so far as the Courier was concerned, for them the matter

stood closed on the date of delivery. It is evident from the Complainant’s letters dated

04.08.1994 and 12.08.1994 (extracted above) that the substratum of their complaint against

the Courier was “delivery of goods to an unauthorised person” viz. Anil Sharma and not the

delivery at all. In this regard, it would be useful to reproduce paragraph 9 of the complaint

filed by the Complainant with the State Commission, which reads:“9. That the complainant resisted and objected against the conduct of respondent No. 1 for making delivery to an individual without proper authorization and

without obtaining the booking receipt issued by respondent No. 1 and told them that you are fully responsible morally and legally for non-delivery of the consignment to the rightful consignee i.e. M/s Godrej, GE Appliances, Bombay.  A copy of this letter dt. 04.08.1994 was also sent to the respondent No. 2- stressing and lodging claim under open policy No. 2131060200556 and certificate No. 73233 dated 17.06.1994.  A copy of letter dt. 04.08.1994 is enclosed herewith and marked as Annexure ‘H’.”   

 

21.    It is clear from the afore-extracted averment in the complaint and letters written by the

Complainant to the Courier that “cause of action” on the basis of which the complaint was filed,

was the alleged default on the part of the Courier in allegedly delivering the goods to Anil

Sharma.  Hence, the “cause of action” arose on that date and the period of limitation for the

purpose of Section 24-A of the Act began to run from 11.06.1994.  Even if it is assumed for the

sake of argument that the Complainant gained knowledge of delivery of consignment to Anil

Sharma only on the receipt of letter dated 13.07.1994 from the Courier, even then the complaint

having been filed on or after 12.08.1996 was clearly barred by time.

22.    We are convinced that on facts at hand the complaint preferred by the Complainant on

12.08.1996, was clearly barred by limitation and in the absence of an application

forcondonation of delay in filing the same in terms of Sub-Section (2) of Section 24-A of the

Act, it could not be admitted for adjudication. We are conscious of the observations of the

Supreme Court in V.N.   Shrikhande’s   case (Supra)  that before dismissing the complaint as

time-barred, an opportunity of hearing should be given to the Complainant, who can

seekcondonation of delay under Section 24-A (2) of the Act by showing that there was

sufficient cause for not filing the complaint within the prescribed time. However, neither in

the written submissions filed by the Complainant nor during the course of hearing such a

prayer was made as the Complainant still believes that the cause of action arose only on

12.08.1994, when the Courier was threatened of legal action by them.  Therefore, the

question of grant of an opportunity to the Complainant to seek condonation of delay in filing

the complaint does not arise.

23.    In view of our above conclusion, it is unnecessary to deal with the questions relating to

territorial jurisdiction or the quantum of compensation.

24.    In the result, both the appeals are allowed, the impugned order of the State Commission is

set aside and the complaint is dismissed.  No costs.

25.    The amount(s) deposited in terms of the second proviso to Section 19 of the Act shall be

refunded to the respective Appellants. 

…………….. . . . . .                                                        (D.K. JAIN, J.)

    PRESIDENT                                                        . . . . . . . . . . . . . . . .

        (VINEETA RAI)       MEMBER

                                                    . . . . . . . . . . . . . . . .

      (VINAY KUMAR)       MEMBER

 Yd /*   

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO.   1380 OF 2012

(From the order dated 29.11.2011 in Appeal No. 1594/2011 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

                                                        Smt. Raj Bala W/o Late Sh. Jit Singh S/o Sh. Balbir Singh R/o Village: BhatgaonPanna: Malyan, Tehsil & Distt. Sonepat Haryana

                                                               …Petitioner/Complainant    

VersusLIC of India Through Branch Manager, Gohana Civil Road, Gohana, Haryana

                                                      …Respondent/Opp. Party (OP)

 BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner        :    Mr. R.S. Malik, Advocate                            

For the Respondent    :     Mr. Arunav Patnaik, Advocate

                                      Ms. Mahima Sinha, Advocate

PRONOUNCED   ON     19 th   November,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioner against the order

dated 29.11.2012 passed by Haryana State Consumer

Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No.

1380 of 2012 – Smt. Raj Bala Vs. LIC of India by which, while dismissing appeal, order of

District Forum directing to pay paid up value was upheld.

 

2.      Brief facts of the case are that complainant/petitioner’s husband had purchased two

insurance policies from OP/respondent on 20.1.1999 for a sum of Rs.50,000/- and Rs.2,00,000/-,

respectively.  On 10.10.2001, complainant’s husband did not return back to home from his office

so; FIR was lodged on 3.11.2001 under Section 365 IPC. Complainant also informed OP about

kidnapping of her husband, but OP did not inform the complainant regarding steps to be  taken.

Complainant paid last premium of Rs.3248/- on 13.1.2007 andRs. 3,211/- on 26.1.2008.  It was

further alleged that complainant filed Civil Suit No. 755/2009 in the Court of Civil Judge

(JD), Sonepat for declaration that her husband Jeet Singh is dead and decree to that declaration

was passed on 21.5.2010. Complainant also obtained death certificate on 2.8.2010 from

concerned Registrar.  It was further submitted that cheque of Rs.10,000/- issued by OP was

returned by complainant. Alleging deficiency on the part of OP, complainant filed complaint

before District Forum. OP resisted complaint and submitted that complainant was asked to keep

the policy in force by making payment of due premium vide Regd. letter dated 16.5.2002.  It was

further submitted that date of death of Jeet Singh will be treated as 21.5.2010 and not

10.10.2001.  As both the policies had already lapsed, complainant was entitled to receive paid up

value of the policy and prayed for dismissal of complaint.  Learned District Forum after hearing

both the parties directed OP to pay paid up value of the policies to the complainant.  Appeal filed

by the petitioner was dismissed by learned State Commission vide impugned order against

which, this revision petition has been filed. 

3.      Heard learned Counsel for the parties finally at admission stage and perused record. 

4.      Learned Counsel for the petitioner submitted that as petitioner’s husband was missing from

10.10.2001 and declaration regarding death had already been obtained from the Civil Court vide

decree dated 21.05.2010, Jeet Singh’s death should be treated from 10.10.2001 and complainant

was entitled to receive full payment of policies, but learned District  Forum has committed error

in allowing only paid up value and learned State Commission further committed error in

dismissing appeal; hence, revision petition be allowed.  On the other hand, learned Counsel for

the respondent submitted that order passed by learned State Commission is in accordance with

law as policy had already elapsed before death of Jeet Singh; hence, revision petition be

dismissed. 

5.      It is admitted fact that petitioner’s husband obtained two insurance policies on 20.1.1999

and as per petitioner’s allegation, her husband was missing from 10.10.2001 and petitioner paid

last premium on 13.1.2007 for the first policy and on 26.1.2008 for the second policy. It is also

not disputed that petitioner filed Civil Suit on 9.5.2009 for declaration of death of her husband

which was decided on 21.5.2010. 

6.      Learned Counsel for the petitioner submitted that death should be presumed from

10.10.2001, whereas learned Counsel for the respondent submitted that death to be presumed

from 21.5.2010 or at the earliest from 9.5.2009 when Civil Suit for declaration was

filed.  Learned Counsel for the respondent has placed reliance on (2004) 10 SCC 131 – LIC of

IndiaVs. Anuradha in which such type of controversy has been dealt at length in paragraphs 14

to 16, which runs as under:

14. On the basis of the above said authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words. The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act 1872. In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question, arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person who's life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise.

15. If an issue may arise as to the date or time of death the same shall have to be determined on evidence -- direct or circumstantial and not by assumption or presumption. The burden of proof would lay on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed.

16. We cannot, therefore, countenance the view taken by the High Court in either of the two appeals that on the expiry of seven years by the time the issue came to be raised in Consumer Forum or Civil Court and evidence was adduced that the person was not heard of for a period of seven years by the wife and/or family members of the person then not only the death could be presumed but it could also be assumed that the presumed death had synchronized with the date when he was reported to be missing or that the date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years

backwards from the date of initiation of legal proceedings. In order to successfully maintain the claim for benefit under the insurance policies it is necessary for the policy to have been kept alive by punctual payment of premiums until the claim was made. The appellant-LIC was justified in turning down the claims by pleading that the policies had lapsed and all that could be paid to the claimants was the paid-up value of the policies.

 

7.      Perusal of aforesaid judgement clearly reveals that death of petitioner’s husband is to be

presumed at the earliest from 9.5.2009 and certainly not from the date of missing i.e.

10.10.2001.  Admittedly, premium of first policy was not paid after 13.1.2007 and premium of

second policy was not paid after 26.1.2008 and both the polices lapsed before filing Civil Suit on

9.5.2009 meaning thereby both policies lapsed during life time of the deceased. In these

circumstances, in the light of aforesaid judgement, petitioner was entitled to receive only paid up

value of the polices and not the maturity amount and learned District Forum has not committed

any error in allowing complaint only to that extent and learned State Commission has not

committed any error in dismissing appeal and revision petition is liable to be dismissed. 

8.      Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to costs. …………………Sd/-…………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..………………Sd/-……………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO. 899 OF 2013(From the order dated 09.04.2012 in Appeal No. 578/11 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)

  1.       Jagrut Nagrik Through their TGrustee & Secretary Sh. P.V. Moorjani

Near Prerna School, Sangam Crossing, Karelibaug, Vadodara 2.       Jagdish B.Dave 103/E, Kanak Kala Part 1, 100 Foot Ring Road, Satellite,

Ahmedabad                                           …Petitioners/Complainants

 Versus1.       Manager, New India Assurance Co. Ltd. 1st Floor, Nobels, Ashram Road, Opp. Nehru Bridge, Ahmedabad 

2.       Family Health Plan Ltd. 106, Sahjanand Complex, Opp. Bhagvati Chambers Near Swastik Crossing, Ahmedabad

                          …Respondents/Opp. Parties (OP)

 

BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioners        :  Mr. Akhil Dave, Advocate                            

For the Res.No.1        :    Dr. Sushil Kr. Gupta, Advocate

For the Res. No. 2      :   NEMO

                                     

PRONOUNCED ON         19 th     November,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioner against the order

dated 9.4.2012 passed by Gujarat State Consumer Disputes Redressal Commission, Ahmedabad

(in short, ‘the State Commission’) in Appeal No. 578 of 2011 – Jagrut Nagrik & Anr. Vs. New

India Ass.  Co. Ltd. by which, while dismissing appeal, order of District Forum dismissing

complaint was upheld.

 

2.      Brief facts of the case are that complainant/petitioner filed complaint before District Forum

for reimbursement of expenses incurred in treatment as Complainant-2/Petitioner No. 2 had

obtained medi-claim policy.  Along with complaint, complainant filed application under Section

24 of the C.P. Act for condonation of delay.  Learned District Forum after hearing both the

parties dismissed complaint as barred by limitation.  Learned State Commission vide impugned

order dismissed appeal against which, this revision petition has been filed. 

3.      None appeared for Respondent no. 2 even after service.

4.      Heard learned Counsel for the petitioner and Respondent No. 1 finally at admission stage

and perused record. 

5.      Learned Counsel for the petitioner submitted that his application under Section 24 of the

C.P. Act filed before District Forum has not been decided by learned District Forum and

erroneously complaint has been dismissed as barred by limitation and learned State Commission

committed error in dismissing appeal; hence, revision petition be allowed and impugned order be

set aside and matter may be remanded back to District Forum.  On the other hand, learned

Counsel for the Respondent No. 1 submitted that learned District Forum has discussed and found

that complaint was not within limitation, but admitted that application under Section 24 of the

C.P. Act has not been decided. 

6.      Apparently, complaint is time barred, but along with complaint, complainant has filed

application under Section 24 of the C.P. Act for condonation of delay of 164 days in filing

complaint. Perusal of record clearly reveals that learned District forum has not decided this

application. Only after dismissal of application under Section 24, complaint could have been

dismissed as barred by limitation and learned District forum has committed error in dismissing

complaint without disposal of application under Section 24 of the C.P. Act.  Learned State

Commission also committed error in dismissing appeal without looking the record and impugned

order is liable to set aside. 

7.      Consequently, revision petition filed by the petitioner is allowed and impugned order dated

1.4.2012 passed by learned State Commission in Appeal No. 578 of 2011 – Jagrut Nagrik & Anr.

Vs. New India Ass.  Co. Ltd. and order of District Forum dated 21.3.2011 passed in CMA

No.16/10 – Mr. P.V. Murzani, Managing Trustee Jagrut Nagrik Mandal & Anr. Vs. The New

India Ass. Co. Ltd. & Anr. is set aside and matter is remanded back to District Forum for

deciding complaint after disposal of application under Section 24 of the C.P. Act filed by the

petitioner before the District forum after giving opportunity of being heard to both the parties. 

8.      Parties are directed to appear before the District Forum on 20.12.2013. ……………………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO. 986 OF 2013(From the order dated 21.12.2012 in Appeal No. 1039/07 of the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad)

                                               M/s. Bharuka Medical Stores Through its Partner Manmohan Lalchand BharukaR/o Panchakki Road, Near Government Medical College & Hospital, Ghati, Aurangabad Maharashtra                                                 …Petitioner/Complainant    

 

VersusUnited India Insurance Co. Ltd. Through its Branch Manager, City Branch, House No. 15-5-72, Jagtap Complex, New Osmanpura, Aurangabad, Maharashtra

                             …Respondent/Opp. Party (OP)

 BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner        :    Mr. Vatsalya Vigya, Advocate                            

For the Respondent    :     Mr. A.K.De, Mr. Zahid Ali & Mr. Rajesh Dwivedi, Advocates

                                     

PRONOUNCED ON     19 th   November,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioner against the order

dated 21.12.2012 passed by Maharashtra State Consumer Disputes Redressal Commission,

Circuit Bench at Aurangabad (in short, ‘the State Commission’) in Appeal No. 1039 of 2007 –

United India Ins. Co. Ltd. Vs. M/s. Bharuka Medical Stores by which, while allowing appeal,

order of District Forum allowing complaint was modified.

 

2.      Brief facts of the case are that complainant/petitioner was running a medicine shop in the

name of M/s. Bharuka Medical Stores at Shop No. 7, which was taken on rent by Shri Shaikh

Hussain from the Municipal Corporation, Aurangabad.  Complainant obtained “Shopkeepers

Insurance Policy” from OP/respondent for a sum of Rs.5,10,000/- for a period commencing from

28.3.2006 to 27.3.2007.  Shop was demolished by Municipal Corporation, Aurangabad on

13.6.2006 with the help of bull dozer and JCB without any prior notice to the complainant on the

ground of unauthorized occupation of the premises.  In spite of injunction from the Court, the

entire shop along with goods and furniture & fixture was destroyed. Due to malicious act on the

part of Municipal Corporation, complainant sustained loss of Rs.4,85,000/-.  Complainant

preferred claim before OP which was repudiated.  Alleging deficiency on the part of OP,

complainant filed complaint before District Forum. OP contested complaint and submitted that

complaint was beyond the scope of policy as loss was caused due to action initiated by the public

authority and submitted that claim was rightly repudiated and prayed for dismissal of

complaint.  Learned District Forum after hearing both the parties, allowed complaint and

directed OP to pay a sum of Rs.4,85,000/- along with compensation of Rs.5,000/-.  Appeal filed

by the OP was partly allowed by learned State Commission vide impugned order and learned

State Commission reduced the amount of compensation from Rs.4,85,000/- to Rs.1,00,000/-

against which, this revision petition has been filed. 

3.      Heard learned Counsel for the parties finally at admission stage and perused record. 

4.      Learned Counsel for the petitioner submitted that in spite of proving loss of Rs.4,85,000/-,

learned State Commission has committed error in reducing amount of compensation granted by

District Forum; hence, revision petition be allowed and order of District Forum be restored.  On

the other hand, learned Counsel for the respondent submitted that order passed by learned State

Commission is in accordance with law; hence, revision petition be dismissed. 

5.      Learned Counsel for the petitioner has placed reliance only on Trading Account for period

from 1.4.2006 to 12.6.2006 filed by petitioner and has not placed any other record to substantiate

his claim; even then, learned District Forum allowed claim in toto.  Learned State Commission

while modifying order of District Forum observed rightly as under:    

“13.   Now we have to see whether the respondent is entitled to receive the

amount of Rs.4,85,000/- claimed by him. The only document submitted in

support of his claim by the respondent is the statement of trading and

profit and loss account for the period from 01.04.2006 to 12.06.2006.  As

per this statement the closing stock of goods is shown as

Rs.4,82,566/-.  The said document has also not been certified by any of

competent authority.  This document cannot be taken as an evidence to

prove that the stock of the value of Rs.4,82,566/- was existed at the time of

demolition. Secondly, even if we accept that the stock amounting to

Rs.4,82,566/- was existed at the time of demolition, it cannot be accepted

that the entire stock was damaged as there is no proof to that effect

submitted by the respondent. As contended by the appellant Insurance

Company there is no panchanama made by the police or Revenue

authority to substantiate the loss as claimed by the respondent.  There are

also no photographs of the incident supporting the alleged loss of his

goods. Thus there is absolutely no evidence in support of the loss of said

goods.

 

14.    It is also to be noted that the alleged loss is not resulted out of any

fire or natural calamities in which case there is a sudden occurrence of the

incident. In the instant case the loss is alleged due to demolition of

structure of shop by the officer of the Municipal Corporation.  There is no

proof on record that the respondent had requested the officers of the

Municipal Corporation to allow him to shift his stock to the alternate

place. It is also not the case of the respondent that in spite of his efforts in

that notice he was not given any time to remove the  existing stock as to

secure the same from the probable loss.  The Forum below has awarded

compensation of Rs.4,85,000/- merely on the basis of the statement made

by the respondent. The District Forum has not bothered to see whether the

claim is proved and is properly justified. Thus the amount awarded by way

of impugned judgment and order is totally arbitrary and baseless. In these

circumstances, we cannot hold that the respondent is entitled to receive

the said compensation as claimed by him.

 

15.    We are however of the view that the appellant Insurance Company

ought to have appointed surveyor to assess the loss.  But on the basis of

wrong presumption that the claim was decided beyond the scope of the

policy the appellant Insurance Co. avoided to appoint Surveyor and settle

the claim of the respondent which amounts to deficiency in service.

Therefore considering this lapse on the part of Insurance Company and

secondly considering certain loss of stock of goods which might have

caused in the process of shifting of stock within a short period, we are of

the opinion to allow the lump sum compensation of Rs.1,00,000/- to the

respondent”.

 

6.      Perusal of record further reveals that shop was demolished on 13.6.2006 whereas

intimation to insurance company was given on 21.6.2006.  In such circumstances, there was no

occasion for the respondent to appoint surveyor immediately for assessment of loss caused by act

of Municipal Corporation to the petitioner. 

7.      We do not find any illegality, irregularity or jurisdictional error in the impugned order and

revision petition is liable to be dismissed. 

8.      Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to cost. 

 ……………………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

 ..……………………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO. 3821 OF 2013

(From the order dated 20.09.2013 in First Appeal No. 255 / 2013 of Delhi State Consumer Disputes Redressal Commission)

 

Sh. P.N. Gupta 7/1 Dakshin Puri Ext. New Delhi – 110062.

                                     ...  Petitioner

  Versus

1.   The New India Assurance Co. Ltd. CDU/312000 B – 401, Ansal Chambers, Bhikaji Cama Place, New Delhi – 110066.

2.   M/s. Raksha Medical Division TPA Pvt. Ltd. 15/5 Mathura Road, Faridabad – 121003.

                                            … Respondents

 BEFORE

HON’BLE DR. B.C. GUPTA, PRESIDING MEMBER

 APPEARED AT THE TIME OF ARGUMENTS

 

For the Petitioner(s)   Ms. Archna Sharma, Advocate

 

PRONOUNCED ON : 19 th   NOVEMBER 2013

O R D E R

PER DR. B.C. GUPTA, PRESIDING MEMBER 

          This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 against the impugned order dated 20.09.2012 passed by the Delhi State Consumer Disputes

Redressal Commission (for short ‘the State Commission’) in FA No. 255/2013, “P.N. Gupta

versus The New India Assurance Co. Ltd. & Ors.”, vide which the appeal filed by the present

petitioner/complainant against the order dated 30.01.2013, passed by District Forum in the

consumer complaint in question was dismissed in default for the non-appearance of the

petitioner/appellant/complainant. 

2.       Brief facts of the case are that the petitioner P.N. Gupta filed consumer complaint in

question on behalf of his daughter-in-law, Dr. Mrs. Meena Gupta, claiming a medi-claim amount

of `42,675/- from the respondent insurance company and compensation of `50,000/- for

physical/mental agony and `25,000/- as cost of litigation. 

3.       The District Forum vide their order dated 30.01.2013 stated that the complaint was not

maintainable because the complainant was not the policy-holder, rather his daughter-in-law was

the co-policy holder with her husband and son.  The complainant was also not holding any

position of any registered voluntary consumer association.  The learned District Forum held that

as per clause (v) of section 2(1)(b) of the Consumer Protection Act, 1986, a legal heir or a

representative could file a complaint only in the case of death of consumer.  In the present case,

the consumer herself could have filed the complaint and hence, the present complaint was not

maintainable.  An appeal was filed against this order before the State Commission, but the same

was dismissed vide order dated 20.09.2013 for the non-appearance of the appellant.  It is against

this order that the present petition has been made. 

3.       At the time of hearing, learned counsel for the petitioner maintained that the policy-holder

could give authority to her father-in-law for filing the complaint in question.  She, however,

could not explain any of the legal provisions under which the complaint could be filed by father-

in-law of the policy holder.  It has been mentioned in the body of the petition that under clause,

“one or more consumer having same interest on behalf of,“ can file the complaint. 

4.       Learned counsel for the petitioner could also not explain any reason for the non-

appearance of the petitioner/appellant /complainant before the State Commission.  All she stated

was that petitioner could not appear before the State Commission due to heavy traffic.  However,

this ground does not find mention in the body of the petition. 

5.       I have examined the entire material on record and given a thoughtful consideration to the

arguments advanced before me.  The term complainant has been defined under section 2(1)(b) of

the Consumer Protection Act, 1986, as follows:-“(b)   "complainant" means— (i)       a consumer; or (ii)     any voluntary consumer association registered under the

Companies Act, 1956 (1of 1956)or under any other law for the time being in force; or

 (iii)  the Central Government or any State Government, (iv)    one or more consumers, where there are numerous consumers

having the same interest;

 (v)  in case of death of a consumer, his legal heir or representative; who

or which makes a complaint; ”  

6.       It is very clear from a plain reading of the above provision that a representative or legal

heir can file a complaint only in the case of death of consumer.  Further, if there are numerous

consumers having the same interest, one or more consumers can file the complaint.  In the

present case, Dr. Mrs. Meena Gupta is the co-policy-holder along with his husband and her son

and she could have very well filed the present complaint.  I do not see any reason to disagree

with the findings of the District Forum that the present complaint is not maintainable, having

been filed by the father-in-law of the policy-holder.

 

7.       Further, the State Commission dismissed the appeal on the ground of non-appearance of

the petitioner/appellant before it.  No valid reason has been advanced for the non-appearance of

the counsel before the State Commission on that date.  In the grounds of petition also, no such

plea has been taken.  In the light of these facts, it is held that there is no perversity in the order

passed by the District Forum and State Commission and hence there is no ground for

interference in the said orders at the revisional stage.  The present revision petition is, therefore,

ordered to be dismissed with no order as to costs.Sd/-

(DR. B.C. GUPTA)

PRESIDING MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.4028 OF 2012(From the order dated 16.7.2012 in Appeal No.1191/2011of the Haryana State Consumer Disputes Redressal Commission, Panchkula) 

1.  Hukam Singh S/o Shri Dharampal R/o Village Samaipur, Tehsil Ballabgarh, District Faridabad (Haryana) 2.  Giriraj S/o Shri Dharampal R/o Village Samaipur, Tehsil Ballabhgarh, District Faridabad (Haryana)

                                        .….. PetitionersVersus

United India Insurance Co. Ltd. Through its Branch Manager, Branch Office, Champa Bhawan, 1st Floor, GT Road, Palwal, Haryana Also at: M/s United India Insurance Co. Ltd. Through its Divisional Manager, 34, Neelam Bata Road, NIT, Faridabad, Haryana

                                                    ....... Respondent 

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBERHON’BLE MR.SURESH CHANDRA, MEMBER

 For the Petitioners             :  Mr. Devendra Singh, Advocate

For the Respondent             :  Ms. Suman Bagga, Advocate

PRONOUNCED ON     :     22 nd   NOVEMBER, 2013

                                                  ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision is directed against the order of the Haryana State Consumer

Disputes Redressal Commission, Panchkula dated 16.7.2012 whereby the State Commission

accepted the appeal against the order of the District Consumer Forum, Faridabad and dismissed

the complaint.

2.       Briefly put, facts relevant for the disposal of this revision petition are that the petitioners

filed a consumer complaint in District Forum, Faridabad claiming that they had purchased a

tractor after taking loan from Gurgaon Gramin Bank, Sikrona Branch, Ballabgarh, District

Faridabad. The tractor was insured with the respondent- opposite party for the period from

16.2.2007 to 15.2.2008. The tractor was stolen on 7th September, 2007 regarding which FIR

No.278 dated 8.9.2007 was lodged with the police station Sadar, District Palwal. It is claimed by

the petitioners that intimation of theft was also given to

the Gramin Bank, Sikrona Branch, Ballabhgarh. The insurance claim submitted by the

petitioners was repudiated vide letter dated 30th March, 2009 on the ground that there was a

violation of terms and conditions of the insurance policy inasmuch as that the theft was not

intimated to the insurance company immediately but after five months in the month of February,

2008. Claiming this to be deficiency in service the petitioners filed the consumer complaint.

3.       Respondent- Opposite Party contested the complaint by filing written statement wherein

he justified the repudiation of claim in view of violation of the terms and conditions of the

insurance policy.

4.       District Forum, Faridabad on appraisal of pleadings of the parties and the evidence

adduced allowed the complaint and directed the respondent- opposite party to indemnify the

complainants as under: -

 “Accordingly, OPs are directed to reimburse the complainant

with the insured amount of Rs.(sic) on account of (sic) within 30 days

from the receipt of copy of this order with interest @ 6% p.a. from the

date of this complaint failing which the amount shall carry interest @

12% p.a. instead of 6%.”

 

5.       Feeling aggrieved of by the order of the District Forum, respondent- opposite party

preferred an appeal before the State Commission, Haryana and the State Commission after due

notice to the petitioner and hearing the parties accepted the appeal, set aside the order of the

District Forum and dismissed the complaint with following observations: - 

“The core question for consideration before us is whether the delay w.e.f. 7.9.2007 till February, 2008 in giving information to the Insurance Company with respect to the theft of insured tractor, is fatal to the claim preferred by the complainant.

During the course of arguments learned counsel for the appellant-opposite party has argued that as the complainant violated the terms and conditions of the Insurance Policy in giving information to the Insurance Company after a gap of more than five months, he is not entitled to claim any compensation. In support of her argument learned counsel for the appellant has drawn our attention towards “General Conditions” wherein Claim Procedure has been given as under:-

“5.       Claim Procedure:-

i)                    The insured shall upon the occurrence of any event giving rise or likely to give rise to a claim under this policy.

a)      In the event of theft loge forthwith a complaint with the police and take all particulars steps to apprehend the guilty person or persons and to recover the property lost.

b)      Give immediate notice thereof to the company and shall within fourteen (14) days thereafter furnish to the company at his own expenses detailed particulars of the amount of the loss or damage together with such explanation and evidence to substantiate the claim as the company may reasonable required.”

 

Further reference has been made to the judgment delivered by the National Commission in case cited as DEVENDRA SINGH versus NEW INDIA ASUSRANCE CO. LTD. & ORS, III (2003) CPJ 77 (NC),wherein there was a delay of one month in giving information to the Insurance Company and therefore repudiation of complainant’s claim was held justified.

The facts of the instant case are fully attracted to DEVENDRA SINGH’s case (Supra). Undisputedly, in the instant case the intimation to the Insurance Company was given after more than five months. Thus, the complainant deprived the Insurance Company to investigate the matter in a proper manner and there was violation of the terms and conditions of the Insurance Policy.

By now it is well settled law that the terms and conditions of the Insurance Policy have to be construed strictly and if there is any violation of those terms and conditions, the party cannot claim any relief. Reference is made to case law cited as SURAJ MAL RAM NIWAS OIL MILLS (P) LTD. versus UNITED INDIA INSURANCE COMPANY & ANR, IV(2010) CPJ 38 (S.C.) wherein it has been held that:-

“22.     Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity.”

“24.     Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount important, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risk covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the court should always be to interpret the words in which the contract is expressed by the parties.”

The facts and circumstances of the instant case are fully attracted

to Suraj Mal Ram Niwas Oil Mills (P) Ltd case (Supra).

In the instant case the complainant has violated the terms and conditions of the Insurance Policy by giving information to the Insurance Company after more than five months from the date of theft of his tractor and therefore, the Insurance Company cannot be held liable to pay any compensation to the complainant and the order passed by the District Forum cannot be allowed to sustain.

In view of our aforesaid discussion, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.”

 

6.       Learned Shri Devendra Singh, Advocate for the petitioner has contended that the

impugned order of the State Commission is not sustainable as it is based upon incorrect

appreciation of law and facts. It is argued that the State Commission has failed to appreciate that

the tractor was insured through the Bank and intimation of theft was given immediately after

noticing the theft toGramin Bank, Sikrona Branch, Ballabhgarh. Thus, the petitioners cannot be

faulted and it cannot be said that they have violated the terms and conditions of the insurance

policy.

7.       We do not find merit in the argument advanced on behalf of the petitioners. Petitioners

have not disputed that the intimation of theft of the tractor was given to the insurance company

with a delay of more than four months in February, 2008. The intimation given to the financing

Bank cannot be a substitute to the intimation required to be given immediately to the insurance

company. Purpose of such intimation of theft to the insurance company is to enable the insurance

company to take steps to protect their interest by appointing investigators to trace the vehicle.

The petitioners obviously have failed to protect the interest of the insured by failing to

immediately informing the report of theft in terms of the general condition 5 (i) (b) of the

insurance policy referred to in the impugned order.  Thus, the State Commission in our

considered view has rightly dismissed the complaint relying upon the ratio of the judgment of the

National Commission in the matter ofDevendra   Singh vs. New India Assurance Co. Ltd. &   Ors .

III (2003) CPJ 77 (NC) and Suraj   Mal Ram   Niwas   Oil Mills (P) Ltd. Vs. United India Insurance

Co. Ltd. &   Anr .   IV (2010) CPJ 38 (S.C.) .

8.       In view of the discussion above, we are of the considered view that the petitioners have

failed to point out any jurisdictional error, illegality or material irregularity in the impugned

order which may call for interference of this Commission in exercise of

its revisional jurisdiction.

9.       Revision petition is accordingly dismissed. …………………..………..

     (AJIT BHARIHOKE, J.)

      PRESIDING MEMBER

                                                            

  ……………….……………

(SURESH CHANDRA)

MEMBERRaj/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO. 3863 OF 2013 (From the order dated 29.08.2012 in Appeal No. 493/2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

With IA/6869/2013 (For Condonation of delay)

 Naresh Kumar,S/o Sh. Natha R/o Village Gangesar Tehsil Gohana Distt. Sonepat

                                                      …Petitioner/Complainant    

VersusThe Oriental Insurance Co. Ltd. Through its Managing Director/General Manager Registered & Head Office: A-25/27, Asaf Ali Road, New Delhi – 110002.

                                   …Respondent/Opp. Party (OP)

 BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner        :    Mr. Ajeet Pandey, Advocate                            

PRONOUNCED ON           25 th   November,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioner against the order

dated 29.08.2012 passed by Haryana State Consumer Disputes Redressal Commission,

Panchkula (in short, ‘the State Commission’) in Appeal No. 493 of 2012 – The Oriental Ins. Co.

Ltd. Vs. Naresh Kumar by which, while allowing appeal, order of District Forum allowing

complaint was set aside and complaint was dismissed

2.      Along with Revision Petition, petitioner has filed application for condonation of 334 days

delay. 

 

3.      Heard learned Counsel for the petitioner and perused record.

4.      Paragraphs 2 & 3 of the petitioner’s application for condonation of delay runs as under:“2.     That there is 334 days delay in filing of the revision petition from

the date of receipt of the revised order i.e. 29.8.2012.

 3.      That due to the shifting of the advocate’s office, the file was

misplaced and it could not be located, which resulted in delay in

filing the revision petition within limitation”.

 

In this application for condonation of delay, petitioner has not even mentioned when Advocate

shifted office, when file was traced and when revision petition was prepared.  There is inordinate

delay of 334 days in filing revision petition and no reasonable explanation has been given by the

petitioner for condonation of inordinate delay of 334 days.

5.      As there is inordinate delay of 334 days, this delay cannot be condoned in the light of the

following judgment passed by the Hon’ble Apex Court.

6.        In Ram Lal and Ors.  Vs.  Rewa Coalfields     Ltd ., AIR  1962 Supreme Court 361, it

has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

 

7.      In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:          “We hold that in each and every case the Court has to examine whether

delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

 

         

8.      Hon’ble Supreme Court after exhaustively considering the case law on the aspect  of

condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat

Industrial Development Corporation reported in (2010) 5 SCC 459 as under;“We have considered   the respective    submissions.  The law of

limitation is founded on public policy. The   legislature does not

prescribe limitation with the object of destroying the rights of the

parties but to ensure that   they    do not resort to dilatory tactics

and seek remedy without delay. The idea is that every legal remedy

must be kept alive for a period fixed by the legislature. To put it

differently, the law of limitation prescribes a period within which

legal remedy can be availed for redress of the legal injury. At the

same   time, the courts are bestowed with the power to condone the

delay, if sufficient cause is shown for not availing the remedy

within the stipulated time.”       

 9.      Hon’ble Apex Court in 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla

Industrial Development Authority observed as under:

“It is also apposite to observe that while deciding an application

filed in such cases for condonation of delay, the Court has to keep in

mind that the special period of limitation has been prescribed under

the Consumer Protection Act, 1986, for filing appeals and revisions

in Consumer matters and the object of expeditious adjudication of

the Consumer disputes will get defeated, if this Court was to

entertain highly belated petitions filed against the orders of the

Consumer Foras”.

  10.  Hon’ble Apex Court in (2012) 3 SCC 563 – Post Master General & Ors.   Vs. Living Media

India Ltd. and Anr. has not condoned delay in filing appeal even by Government department and

further observed that condonation of delay is an exception and should not be used as an

anticipated benefit for the Government departments.

 

Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate

delay of 334 days. In such circumstances, application for condonation of delay is dismissed.  As

application for condonation of delay has been dismissed, revision petition being barred by

limitation is also liable to be dismissed.

 11.    Consequently, the revision petition filed by the petitioner is dismissed as barred by

limitation at admission stage with no order as to costs.  

 ………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.4544 OF 2012(From the order dated 09.08.2012 in  First Appeal No.402/2011 of the

Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad)

1. NATIONAL INSURANCE COMPANY LTD. Through its duly constituted attorney Manager R/o I Level-4, Tower-Ii, Jeevan Bharti , 124 Connaught Circus NEW DELHI – 110001

..........Petitioner(s)

Versus

1. GOPANABOINA SATHYAM S/o Srihari, R/o Thungathurty Village Kethepally Mandal, NALGONDA A.P

2. Golden Multi Services Club Ltd., S.B Mansion, 16. R.N Mukherjee Road, KOLKATA – 700001 W.B3. Golden Multi Services Club Ltd., Branch Office:2nd floor, Sangamitra Bank Complex, Prakasham Bazar NALGONDA A.P

...........Respondent(s) 

BEFORE:

 HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

 

For the Petitioner         :       Mr.Abhishek Kumar, Advocate

For the Respondent     : Mr. R. Santhnan Krishnan, Adv. for R-1

Mr. Kunal Chatterjee, Adv. for R-2 to R-3

 

PRONOUNCED ON :27 th   November, 2013  ORDER

PER SURESH CHANDRA, MEMBER

This revision petition has been filed by the petitioner Insurance Co. which was opposite

party at Sl. Nos.2 & 3 in the consumer complaint filed by respondent No.1/complainant  before

the District Forum,Nalgonda against the petitioner Insurance Co. and the Golden Multi Services

Club Ltd., Kolkata included in the complaint as opposite party at Sl. Nos. 1 & 4. Challenge in the

revision petition is to the impugned order passed by the A.P. State Consumer

Disputes Redressal Commission, Hyderabad (‘State Commission’ for short) on 9.8.2012 in F.A.

No.402 of 2011 whereby the State Commission partly allowed the appeal filed by the petitioner

co. against order dated 19.4.2011 passed by the District Consumer Forum, Nalgonda in

consumer complaint No.61 of 2010. By its order, the District Forum had partly accepted the

complaint filed by R-1 in terms of the following order:-

“In the result, the complaint is partly allowed. The Opposite Party No.2 is directed to pay to the Complainant Rs.78,000/- (Rupees Seventy eight

thousand only) along with interest @ 9% p.a. from the date of the complaint till realization. Costs of this complaint quantified at Rs.2,000/-. Time for compliance one month from the date of communication of this order. Rest of the claim of the Complainant is dismissed.”

 

2.         The State Commission vide its impugned order slightly modified the order of the District

Forum by setting aside the award of compensation of Rs.3,000/- for deficiency in service and

maintained the rest of the award passed by the District Forum as reproduced above.

3.         Briefly stated, the facts relevant for disposal of this revision petition are that the

complainant/respondent obtained a Group Jantha Personal Accident Policy from the OP

Insurance Co. for a sum of Rs.5 lakhs and the said policy was in force from 31.3.2004 to

31.3.2019. The complainant paid premium to the Insurance Co. through OPs 1 & 4. On

19.8.2007, the complainant while travelling on his motorcycle to his village was involved in an

accident in which he sustained grievous injuries to both the upper and lower limbs and a major

injury to the head near his right eye. After the first aid, the complainant was shifted to a super

specialty hospital at Hyderabad where he was treated for 10 days. Police case was also registered

and charge sheet was submitted against the driver of the tractor which allegedly caused the

accident. The complainant filed his insurance claim in November 2007 with the OP No.4 along

with necessary documents which was forwarded to the OP Insurance Co. In spite of furnishing

further documents as required by the OP Insurance Co., the claim of the complainant was

allegedly not settled and nor there was any response in spite of a no. of visits by the complainant

to the OP Insurance Co. Eventually, the complainant lodged a consumer complaint with the

District Forum praying for direction to the OPs to pay Rs.2,50,000/- towards 50% of the assured

sum together with interest and Rs.1 lakh by way of damages and cost.

4.         OPs filed their written statements opposing the claim and denying the allegations made in

the complaint. OPs 1 & 4 admitted issuance of the policy to the complainant by the OP Insurance

Co. and also acknowledged that they had received the claim in respect of the accident from the

complainant and the same had been forwarded by them to OP Insurance Co. However, they

denied their liability to pay the claim made by the complainant and hence prayed for dismissal of

the complaint against them. The OPs 2 & 3, i.e, the Insurance Co. filed a combined written

version admitting issuance of the policy subject to certain terms and conditions. It was contended

by the OP Insurance Co. that as per policy Clause “C” , the complainant is not entitled to any

compensation because there is no permanent disability. It was also stated by the Insurance Co.

that in spite of several letters to the complainant requiring certain documents, the complainant

did not comply with the requirements and as such they could not settle the claim. Both the sides

filed their evidence affidavits reiterating their respective pleadings and after hearing the parties

and considering the evidence on record, the District Forum accepted the complaint in terms of

the aforesaid order. Aggrieved by that order, the OP Insurance Co. filed an appeal on several

grounds before the State Commission challenging the order of the District Forum and denying

any deficiency in service on their part and praying for setting aside of the order of the District

Forum and dismissal of the complaint. As stated above, the State Commission vide its impugned

order partly allowed the appeal  by giving some relief to the extent of Rs.3,000/- in the matter of

payment of compensation and upheld the  rest of the award passed by the District Forum. Under

these circumstances, the OP Insurance Co. has now filed the present revision petition.

5.         We have heard Shri Abhishek Kumar, Advocate for the petitioners and Sh.

R. Santhnan Krishnan, Advocate for respondent/complainant. Learned

counsel Shri Kunal Chatterjee, Advocate has been heard for respondent Nos. 2 & 3. Learned

counsel for the petitioners submitted that the State Commission has failed to consider that the

claim in question is not covered under the scope of the cover provided by the policy inasmuch as

the policy covers only the accidental death, permanent total disablement, actual loss of one

eye/eyes, hand/hands, foot/feet  but does not cover the partial blindness, i.e., 30% as in the

present case. He also submitted that the coverage by the policy is limited to complete and actual

loss of one eye or both the eyes in terms of the conditions provided at Sl. No.1 to 1.1 and 2 to 2.9

in the table/chart provided under the conditions. Learned counsel further argued that since

admittedly no complete and actual loss of one eye is caused to the complainant/respondent, the

complainant would not be entitled for any compensation strictly in terms of the conditions of the

policy. Learned counsel vehemently pleaded that in terms of the condition of the policy, the loss

of sight has to be full loss and keeping in view this specific condition, he said that both

the Fora below committed grave mistake in accepting the claim albeit proportionately even

though as per the certificate of the doctor the loss of sight was only 30%. He, therefore,

submitted that the impugned order cannot be sustained in the eye of law and is liable to be set

aside being in violation of specific conditions of the policy.

6.         On the other hand, learned counsel for the complainant/respondent submitted that 30%

loss of sight suffered by the complainant/respondent during the accident is of permanent and

irrecoverable in nature and the same fact has not been denied. He argued that condition Nn.2.7

which is relevant to consider the present claim does not talk of total or full loss of sight of one

eye but merely mentions payment of 50% of the sum insured in case of “loss of sight of one

eye”. He further submitted that if the condition at 2.7 is read with the wordings used in the main

condition at Sl. No.2, it would be clear that the only thing which is required to be established is

that the loss suffered should be permanent  and of irrecoverable nature. He submitted that

admittedly the loss of sight of one eye was to the extent of 30%, but it is nobody’s case that it

was not of permanent and recoverable in nature. In this view of the matter, he submitted that

the Fora below were right in admitting the claim in proportion to the extent of loss suffered and

as such the impugned order needs to be upheld and the revision petition dismissed.

7.         We have carefully considered the rival contentions. The only legal issue which has

emerged from the arguments is as to whether in terms of the scope of cover provided for in the

terms and conditions of the policy, proportionate compensation is permissible. Learned counsel

for the petitioners has placed reliance on three judgements of the Apex Court in the cases

of Oriental Insurance Co. Vs. Sony   Cheriyan [(1999) 6 SCC 451], National Insurance Co. Ltd.

Vs.   Laxmi   Narain   Dhut   [2007 – 258 (02-03-2007) (SC)]  and United India

Vs.     Harchandrai   Chandan   Lal   [(2005) ACJ 570 (SC ) ] . We have considered the observations of

the Apex Court in these three cases referred to by the counsel. The essence of the observations of

Hon’ble Supreme Court is that the insurance policy between the insured and the insurer

represents contract between these parties and the terms of the policy govern this contract. This

being the position, it has been laid down that we have to abide by the words used in the policy

and there is no scope for adding or subtracting the wordings of the policy as agreed to and

accepted by the parties. Applying the aforesaid principles laid down by the Apex Court to the

present case, we find that as per scope of the cover provided under the terms and conditions

attached to the policy, the case of the complainant is covered by para 2.7 read with the

main para 2 which governs the sub-paras included under the main para.  For   the  sake  of  better 

appreciation, we may reproduce the chart of benefits available under the scope of cover as under:-

“1) Death 100% of sum insured

1.1) Permanent total disablement 100% of sum insured

2) Total and irrecoverable loss of : 100% of sum insured

2.1) Sight of both Eye 100% of sum insured

2.2) Actual loss by physical separation of two entire hands

100% of sum insured

2.3) Actual loss by physical separation of two entire feet 100% of sum insured

2.4) Actual loss by physical separation of hand and one entire foot

100% of sum insured

2.5) Actual loss of sight of one Eye and actual loss by physical separation of one entire hand

100% of sum insured

2.6) Actual  loss of sight of one Eye and actual loss by physical separation of one entire foot.

100% of sum insured

2.7) Loss of sight of one Eye 50% of sum insured

2.8) Actual loss by physical separation of one entire hand 50% of sum insured

 

2.9) Actual loss by physical separation of one entire foot

 

50% of sum insured”

8.         We may note from the above that so far as loss of sight of one eye is concerned, 50% of

the sum insured is payable. Since the complainant suffered only 30% loss of sight of one eye,

the Fora below have considered award of 30% of 50% of the sum insured which comes to

Rs.75,000/-. It is important to note that although there is further elaboration of the nature and

extent of loss under each of the sub-paras by adding prefixes / adjectives like “actual”, “entire”,

“physical”, etc. there is no further adjectives or prefixes added before the words “loss of sight of

one eye”. The contention of the learned counsel for the petitioners is that the main clause which

contains the words “total and irrecoverable loss of” governs all the sub-clauses and hence it

would exclude the present claim which pertains to only 30% loss of sight. On the other hand, the

contention of learned counsel for respondent/complainant is that absence of the word “full” or

“total” in the beginning of the entry at Sl. No. 2.7 indicates that the claim under this entry which

cannot exceed 50% of the sum insured in cases of full loss of sight of one eye has to be

considered on proportionate basis in case of such loss which is of total and irrecoverable in

nature as contained in para 2. Learned counsel for the complainant/respondent further said that if

there was an intention to exclude consideration of claims in case of partial loss, the entry would

certainly have clarified it by adding the prefix “full” and/or “total” before the word loss in this

entry. In this view of the matter,  he has submitted that the Fora below were right in accepting

the claim on proportionate basis in terms of the limits laid down by the terms and conditions.

9.         Having considered the respective pleas of the parties in the light of the words used in the

terms and conditions as mentioned in the policy and after looking at entry at sub-para 2.7 along

with entries in other sub-paras, we are of the view  that the claim can be considered in terms of

this sub-para even for proportionate loss of sight as long as the loss is of irrecoverable and

permanent nature. Admittedly it is not the case of the petitioner Insurance Co. that 30% loss of

sight suffered by the complainant in his right eye is not of irrecoverable or  permanent nature. In

view of this, no fault could be found with the impugned order because the claim awarded is

strictly in proportion to the loss of sight. While on the subject, we have no hesitation in

observing that that the arguments put forth by the learned counsel do indicate that there is

certain  amount of lack of clarity or ambiguity in respect of the real purport of the benefits

available under para 2.7 under reference. If that be so, even then in all fairness, the benefit of

doubt must go to the insured. We have considered the present case from both the angles and are

of the opinion that going by the words used in the scope of cover under the terms and conditions

attached to the policy, the impugned order does not call for any interference from us. Revision

petition, therefore, stands dismissed with the parties bearing their own costs.

……………Sd/-……..………..

(AJIT BHARIHOKE, J.) PRESIDING MEMBER

 ……………Sd/-….……………

(SURESH CHANDRA) MEMBER

SS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO.   2728 OF 2008  (From the order dated 19.03.2008 in Appeal No. 939/2002 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

 Life Insurance Corporation of India Through Branch Manager Near Collector Office, District Sikar State of Rajasthan

                              …Petitioner/Opp. Party (OP)    

VersusAnita Shekhawat W/o Late Rajendra Singh Shekhawat R/o House Near Samrat Cinema Barech Marg, Sikar,Tehsil & Distt. Sikar State of Rajasthan

                               …Respondent/Complainant

 BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

 

For the Petitioner        :    Ms. Harvinder Kaur, Advocate

                                      Mr. Nishesh Sharma, Advocate

For the Respondent    :    Mr. Pushpinder Singh, Advocate

PRONOUNCED ON 28 th   November ,     2013

 O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioner against the order dated 19.3.2008

passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, ‘the

State Commission’) in Appeal No. 939 of 2002 – Smt. Anita Shekhawat Vs. LIC of India by

which, while allowing appeal, order of District Forum dismissing complaint was set aside and

complaint was allowed.

 

2.       Brief facts of the case are that complainant/respondent Smt.

Anita Shekhawat’s husband Shri Rajender Singh Shekhawat took twenty-year Money Back

Policy  with accident benefit on 28.3.1990 and another Jeevan Mitra Policy with accident benefit

on 28.3.1993 for a sum of Rs.1,00,000/- each.  Complainant was nominee in both the

policies.  On 30.6.2001, Rajender SinghShekhawat suffered stomach pain and under the

mistaken belief of pouch of Zarda, consumed sulphos tablets and expired on

1.7.2001.  Complainant preferred claim before the OP/petitioner.  OP made payment of

Rs.1,79,800/- and Rs.2,63,100/- towards the basic sum assured under the policies respectively,

but claim for accident benefit was repudiated by letter dated 8.1.2002 on the ground that

consumption of poison by the deceased did not fall within the category of accident.  Complainant

alleging deficiency on the part of OP, filed complaint before District Forum. OP contested

complaint and reiterated the same grounds for repudiation of the claim.  After hearing both the

parties, District Forum dismissed the complaint against which appeal filed by the complainant

was allowed by learned State Commission vide impugned order and petitioner was directed to

pay accident benefits with 9% p.a. interest and further awarded Rs.2,000/- as cost of litigation

against which, this revision petition has been filed.

 

3.       Heard learned Counsel for the parties and perused record.

 

4.       Learned Counsel for the petitioner submitted that death on account of consumption

of sulphos tablets does not fall within the purview of accident benefit and learned District Forum

rightly dismissed the complaint, but learned State Commission has committed error in accepting

appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand,

learned Counsel for the respondent submitted that order passed by learned State Commission is

in accordance with law; hence, revision petition be dismissed.

 

5.       It is admitted case of the parties that deceased obtained two policies with accident benefits.

It is also not disputed that deceased consumed sulphos tablets and died on next day.

 

6.       Now, the question to be decided by this Commission is whether death due to consumption

of sulphos tablets falls within the purview of Clause 10 (b) of the policy for grant of accident

benefits.  Clause 10 (b) runs as under:

 

“10 (b)         Death of the Life Assured:- to pay an additional sum equal to

the Sum Assured under this policy.  If the Life Assured shall sustain any

bodily injury resulting solely and directly from the accident caused by

outward, violent and visible means and such injury shall within 120 days

of its occurrence solely, directly and independently of all other causes

result in the death of the Life Assured.  However, such additional sum

payable in respect of this policy, together with any such additional sums

payable under other policies on the life of the Life Assured shall not

exceed Rs.5,00,000/-“.         

 

 

7.       Perusal of this clause clearly reveals that death must occur on account of sustaining bodily

injury resulting solely and directly from the accident caused by outward, violent and visible

means. In the case in hand, there is no question of bodily injury due to outward violent means as

death had occurred due to consumption of sulphos tablets.  In such circumstances, merely

because assured consumed sulphos tablet under the mistaken belief of Zarda, complainant was

not entitled to get accident benefits and learned District forum rightly dismissed complaint.

 

8.       Learned Counsel for the respondent submitted that death occurred due to unforeseen and

unplanned event which falls within purview of accident. We do not agree with this submission as

grant of accident benefits has been specifically defined under Clause 10 (b) of the policy and

death must occur on account of bodily injury caused by outward and violent action.  This

Commission in 1997 (2) CPR 8 (NC) – LIC of India Vs. Ramesh Chandra has held that District

forum and State Commission had no jurisdiction to go beyond terms and conditions of policy

which are to be strictly complied with and in such circumstances, as death of the assured did not

occur due to outward, violent  or bodily injury, complainant was not entitled to get accident

benefits and learned State Commission has committed error in allowing appeal and allowing

accident benefits which is liable to be set aside.

 

9.       Consequently, revision petition filed by the petitioner is allowed and impugned order dated

19.3.2008 passed by learned State Commission in Appeal No. 939 of 2002 – Smt.

AnitaShekhawat Vs. LIC of India is set aside and order of District Forum dismissing complaint

is upheld.  There shall be no order as to cost.

 

 ………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER  

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION  NO. 454  OF  2013(Against the order dated 21.09.2012 in First Appeal No. 205 & 137 of 2012of the State Commission Haryana, Panchkula) Baljeet s/o Sh.Charan Singh r/o Village and Post Office Mayyar, Tehsil and District Hisar

........ Petitioner (s)  Vs. United India Insurance Company Ltd.,Nai Anaj Mandi, Mandi Adampur District Hisar through Its Branch Manager

......... Respondent (s) BEFORE:  HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER       For the Petitioner (s)            :     Mr. Sudhir Bisla, Advocate For the Respondent (s)       :     Mr. M.N.Singh, Advocate                                                      Dated :       02 nd     December,     2013  ORDER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER 

            This revision is directed against the order of the State Commission Haryana dated

21.09.2012, whereby the appeal against the order of the District  Forum Hisar was allowed and

the complaint filed by the petitioner / complainant was dismissed.

2.         Briefly put, the facts relevant for the disposal of the revision petition are that Bolero

jeep No. HR-20R – 1341 owned by the petitioner was insured with the opposite party for

Rs.4,70,000/-.  The insurance policy was valid from 20.01.2010 to 19.01.2011.  On 27.06.2010,

the aforesaid vehicle was stolen while parked near H.No. D-64, Sector – 56, Noida.  The matter

was reported to the police on the same day vide FIR registered at PS Noida, Sector – 58. Theft

was also intimated to the opposite party / insurance company.  The insurance claim of the

petitioner was repudiated by the opposite party on three counts i.e. (i) the vehicle was parked in

the street without any safety; (ii) the intimation of theft was given to the insurance company after

a gap of three months; and (iii) that the vehicle was being used for hire whereas it was insured

with the opposite party as private use vehicle. 

3.         Feeling aggrieved by the repudiation, the petitioner filed a consumer complaint before the

District Forum Hisar.

4.         District Forum Hisar on consideration of the pleadings of the parties and evidence came

to the conclusion that the opposite party has committed deficiency in service by repudiating the

claim and observed that despite of the fact that the vehicle was used for hire, the complainant

was entitled to his insurance claim on non – standard basis in view of law laid down by the

Supreme Court in the matter of AmalenduSahoo Vs. Oriental Insurance Company Ltd. CPJ 2010

(II).  Accordingly, the claim of petitioner for 75% of the insurance value i.e. Rs.3,52,500/-  was

allowed.  The opposite party was directed to comply with the order within 45 days of the receipt

of the order failing which it was ordered that opposite party shall pay to the petitioner interest @

9% p.a. from the date of filing of complaint.  At the same time, complainant was also directed to

execute all requisite documents and complete the formalities required by the opposite party /

insurance company. 

5.         Being aggrieved of the order of the District Forum, the opposite party preferred an appeal

before the State Commission Haryana.  State Commission on consideration of record and

evidence came to the conclusion that since petitioner has violated the terms and conditions of the

insurance policy, he was not entitled to the insurance claim in view of the judgment of the

Supreme Court in the matter of Suraj Mal RamNiwas Oil Mills ( P ) Ltd. Vs. United India

Insurance Co. Ltd. (Civil Appeal No. 1375 of 2003).  Accordingly the appeal was accepted and

the complaint filed by the petitioner / complainant was dismissed.

6.         Learned counsel for the petitioner, assailing the impugned order, has contended that the

order of the State Commission in rejecting the complaint is not sustainable for the reason that the

order is against the law laid down by Hon’ble Supreme Court in the matter

of Amalendu Sahoo (supra).  Learned counsel further contended that the State Commission has

committed a grave error in ignoring that this is a case of theft which has no causal relationship

with the user of the insured vehicle for hire instead of private user.  Learned counsel has thus

urged us to accept the revision and set aside the impugned order and allow

100%  insurance claim of Rs.4,70,000/- to the petitioner / complainant.

7.         Learned counsel for the respondent on the contrary has argued in support of the

impugned order.  He has drawn our attention to the copy of the FIR lodged by the driver of the

vehicle in question at PS Noida, Sector – 58 and submitted that on perusal of the FIR, it would

be seen that the vehicle was given for hire to Power Grid Corporation, Bhiwani and on the date

of theft, the driver of the vehicle had taken it to Sector – 56, Noida for fetching DGM of the

Power Grid Corporation.  It is contended that from this, it is established that vehicle in question

on the relevant day was being used for commercial purpose i.e. hire which is against the

insurance policy as the jeep was insured as a private use vehicle.   It is argued that the State

Commission has rightly relied upon the judgment of the Supreme Court in the matter

of Suraj Mal RamNiwas Oil Mills ( P ) Ltd. (supra ) while dismissing the complaint filed by the

petitioner.

8.         We have heard the rival contentions and perused the material on record.  It is undisputed

that the vehicle in question was insured when it was stolen on 27.06.2010.  It is also not disputed

that the vehicle was insured as private use vehicle but at the time of theft it was being used for

commercial purpose i.e. on hire to Power Grid Corporation.  Thus the only issue for

determination in this revision petition is whether or not despite of violation of terms and

conditions of the insurance policy, the petitioner is entitled to his claim on non – standard

basis.  The above issue is no more resintegra.  The National Commission in the matter of United

India Insurance Co. Ltd. Vs. Gian Singh (2006) 2 CPJ 83 (NC) while confronted with the above

noted controversy has held that in the case of violation of condition of policy as to nature of use

of the vehicle, the claim ought to be settled on non – standard basis.  While coming to the

aforesaid opinion, National Commission has relied upon the judgment of the Supreme Court in

the matter of National Insurance Co. Ltd. Vs. Nitin Khandelwal (2008) 11 SCC 259.

9.         We have considered the rival contentions.  It is undisputed that the vehicle in question

was insured on the date on which it was stolen.  It is also undisputed that the vehicle was insured

as a private use vehicle but it was being used for commercial purpose i.e. on hire to the Power

Grid Corporation.

10.       The District Forum Hisar on consideration of the evidence came to the conclusion that

the vehicle in question was insured under ‘private car package policy’ but at the time of theft, it

was being used on hire and reward basis in violation of terms and conditions of the policy.

Despite of the said finding relying upon the judgment of the Hon’ble Supreme Court in the

matter of Amalendu Sahoo ( Supra), District Forum allowed the insurance claim of the petitioner

on non-standard basis and awarded 75% of the insured value of the vehicle 352500/- to the

complainant.

11.       Undisputedly, insured vehicle of the petitioner was stolen on 27.06.2010.  It is also not

disputed that the vehicle was insured under ‘private car package policy’ but on the relevant day it

was being used on hire and reward basis in violation of terms and conditions of the policy.  The

question for determination in this revision petition is whether despite of aforesaid violation, the

petitioner is entitled to insurance claim onnon standard basis as was awarded by the District

Forum?.

12.       The above issue is no more resintegra.  Similar question came up for consideration before

the National Commission in the matter  of United India Insurance Company Limited

Vs. Gian Singh (2006) 2 CPJ 83 (NC) wherein it has been held that in case violation of

conditions of the policy so as to nature of use of the vehicle, the claim ought to be settled on a

non-standard basis.

13.       The question whether the insurance company is justified in repudiating the claim of the

insured for violation of the terms and conditions of the insurance policy in the case of theft of

vehicle came up before the Hon’ble Supreme Court in the matter of National Insurance

Company Limited Vs. Nitin Khandelwal (2008) 11 SCC 259,  wherein the Hon’ble Supreme

Court observed thus:“In the case in hand, the vehicle has been snatched or stolen.  In the case of theft of vehicle breach of condition is not germane.  The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer.  The

respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis.  The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.          In the instant case, the State Commission allowed the claim only on non-standard basis, which has been upheld by the National Commission. On consideration of the totality of the facts and circumstances in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis.          In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant.  On the basis of the settled legal position, the view taken by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission”. 

14.       The above judgment of the Supreme Court is squarely applicable to the facts of this

case.  Therefore, in our view, the State Commission has committed a grave error in accepting the

appeal against the judgment of the District Forum. Accordingly, the impugned order cannot be

sustained.15.       In the written statement, opposite party has tried to justify the repudiation on the ground

that intimation of theft was given to the insurance company after a gap of three months.   No

doubt in para 3 of the complaint, it is alleged that theft took place on the intervening night of

26th & 27th June, 2010 and the FIR was registered at P.S. Gautam Budh Nagar on 27th October,

2010.  However, on perusal of the copy of the FIR filed on record, we find that it is a

typographical error.  The FIR was actually registered at P.S. Gautam Budh Nagar on 27th June,

2010 and not on 27th October, 2010.  Learned counsel for the petitioner opposite party has failed

to point out any evidence which would show that intimation regarding theft of vehicle was not

given to the insurance company immediately.  Therefore, we do not find any force in the above

noted plea to justify the repudiation of claim.

16.       In view of the above, the impugned order of the State Commission is not

sustainable.  Revision petition, is, therefore, accepted.  Impugned order of the State Commission

is set aside and the order passed by the District Forum is confirmed.  Parties to bear their own

costs. 

                                                                   ………………………….     (AJIT BHARIHOKE, J)      ( PRESIDING MEMBER)

                                                                    …………………………                                                         (SURESH CHANDRA)                                                                            MEMBERAm/ 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI                                                                           

REVISION PETITION NO.   3170 OF 2008  (From the order dated 26.05.2008 in Appeal No. 759/08 of the State Consumer Disputes Redressal Commission, UT, Chandigarh)

  The New India Assurance Co. Ltd. Sector-17, Chandigarh

…Petitioner/Opp. Party (OP)    

VersusAshok Thakur House No. 329/1, Sector 45A, Chandigarh

                                             …Respondent/Complainant

 BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner             :         Mr. Abhishek Kumar, Advocate

For the Respondent         :         Mr. Neeraj Kumar Jha, Advocate

                    

PRONOUNCED   ON     3 rd   December,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioner against the order dated 26.5.2008

passed by State Consumer Disputes Redressal Commission, UT, Chandigarh (in short, ‘the State

Commission’) in Appeal No. 759 of 2008 – New India Assurance Co. Ltd. Vs. Ashok Thakur by

which, while dismissing appeal, order of District Forum allowing complaint was upheld.

 

2.      Brief facts of the case are that complainant/respondent purchased vehicle CH-03C-9762

from Shri Avtar Singh and got registration certificate transferred in his name on 13.6.2006.

Vehicle was insured by OP/petitioner for a period from 6.9.2005 to 5.9.2006.  Complainant

approached OP on 18.6.2006 for transfer of insurance policy in his name along with all

documents, but the same was not done and Sr. Branch Manager of OP told him that vehicle

should be brought along with documents. On 25.6.2006, vehicle met with an accident and

vehicle was damaged.  Complainant submitted claim which was repudiated by OP.  Alleging

deficiency on the part of OP, complainant filed complaint before District Forum.  OP resisted

complaint and submitted that as no policy was issued in favour of the complainant and as there

was no privity of contract between the complainant and OP, OP was not liable to pay any

compensation as per India Motor Tariff Rules and prayed for dismissal of complaint.  Learned

District Forum after hearing both the parties, allowed complaint and directed OP to pay

Rs.59,900/- + Rs.2145/- as survey fee along with interest @ 9% p.a. and further awarded cost of

Rs.2,500/-.  Appeal filed by the petitioner was dismissed by learned State Commission vide

impugned order against which, this revision has been filed. 

3.      Heard learned Counsel for the parties and perused record. 

4.      Learned Counsel for the petitioner submitted that as policy was not transferred in the name

of respondent on the date of accident and as there was no privity of contract between the parties,

the petitioner has not committed any deficiency in repudiating the claim and learned State

Commission has committed error in dismissing appeal and learned District Forum committed

error in allowing complaint; hence, revision petition be allowed and impugned order be set

aside.  On the other hand, learned Counsel for the respondent submitted that order passed by

learned State Commission is in accordance with law, which does not call for any interference;

hence, revision petition be dismissed. 

5.      It is not disputed that respondent purchased vehicle from Shri Avtar Singh and registration

certificate was transferred in the name of respondent on 13.6.2006.  It is also not disputed that

vehicle was insured in the name of Shri Avtar Singh by the petitioner for a period from 6.9.2005

to 5.9.2006.  It is also not disputed that vehicle met with an accident on 25.6.2006. 

6.      Now, the main question is whether insurance policy stood transferred in the name of

respondent on the date of accident or whether he applied for transfer within a period of 14

days.  As per India Motor Tariff Rules applicable from 30.6.2002, insurance policy was required

to be transferred in the name of transferee on damages of the vehicle.  GR 17 runs as under:

                   “GR.17.     Transfers On transfer of ownership, the Liability Only cover, either under a Liability Only policy or under a Package policy, is deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of transfer. 

The transferee shall apply within fourteen days from the date of transfer in writing under recorded delivery to the insurer who has insured the vehicle, with the details of the registration of the vehicle, the date of transfer of the vehicle, the previous owner of the vehicle and the number and date of the insurance policy so that the insurer may make the necessary changes in his record and issue fresh Certificate of Insurance.

 In case of Package Policies, transfer of the “Own Damage” section of the policy in favour of the transferee, shall be made by the insurer only on receipt of a specific request from the transferee along with consent of the transferor. If the transferee is not entitled to the benefit of the No Claim Bonus (NCB) shown on the policy, or is entitled to a lesser percentage of NCB than that existing in the policy, recovery of the difference between the transferee’s entitlement, if any, and that shown on the policy shall be made before effecting the transfer.

 A fresh Proposal Form duly completed is to be obtained from the transferee in respect of both Liability Only and Package Policies.

 Transfer of Package Policy in the name of the transferee can be done only

on getting acceptable evidence of sale and a fresh proposal form duly

filled and signed. The old Certificate of Insurance for the vehicle, is

required to be surrendered and a fee of Rs.50/- is to be collected for issue

of fresh Certificate in the name of the transferee. If for any reason, the old

Certificate of Insurance cannot be surrendered, a proper declaration to

that effect is to be taken from the transferee before a new Certificate of

Insurance is issued.”

  

 

7.      Perusal of GR.17 clearly reveals that respondent was entitled to ‘on damages’ of the

vehicle only if he had applied for transfer of insurance policy in his name within 14 days from

the date of transfer of registration certificate in his name.  Perusal of record reveals that

respondent applied for transfer of insurance policy in his name on 30.6.2006, whereas accident

had already taken place on 25.6.2006.  As the respondent did not apply for transfer of insurance

policy in his name within 14 days from the date of transfer of registration certificate, petitioner

has not committed any deficiency in repudiating claim. 

8.      Learned State Commission has referred Annexure C-2/A dated 18.6.2006, but the

respondent has not placed that document on record.  Not only this, as per averments of the

complaint when respondent approached to the petitioner on 18.6.2006 along with Annexure C-

2/A, he was asked to present the vehicle for further action.  Admittedly, respondent did not

produce vehicle on that date.  In  such  circumstances,  it  cannot be presumed that on 18.6.2006,respondent applied for transfer of insurance policy in his name along with all necessary

formalities and it can very well be said that first time respondent applied for transfer of insurance

policy on 30.6.2006.  Learned Counsel for the petitioner placed reliance on judgment of this

Commission delivered on 21.2.2013 in R.P. No. 3502 of 2009 – New India Assurance Co.

Ltd. Vs. Shaik   Dawood   &   Anr . in which while discussing GR.17 and judgement of Apex Court,

it was observed as Under:

“Similarly, three members Bench of this Commission in the case of Madan   Singh   Vs . United India Insurance Co. Ltd. &   Anr . – 1 (2009) CPJ 158 (NC), after considering the entire facts of the case, has held that in the case of own damage, unless and until the policy is transferred in the name of new owner, insurance company is not liable to indemnify the loss.

 In view of the provisions of the Motor Vehicles Act and the Tariff Regulations and the decisions of the Supreme Court, if the transferee fails to inform the Insurance Company about transfer of the Registration Certificate in his name and the policy is not transferred in the name of the transferee, then the Insurance Company cannot be held liable to pay the claim in the case of own damage of vehicle. Petitioner Insurance Company was justified in repudiating the claim”.

 

9.      In the light of aforesaid judgment it becomes clear that petitioner has not committed any

deficiency in repudiating the claim.  Learned Counsel for the respondent has placed reliance on

judgment of this Commission delivered on 22.5.2007 in R.P. No. 556 of 2002 – Shri   Narayan

Singh Vs. New India Assurance Co. Ltd.  in which in similar circumstances, Insurance Company

was held liable.  This judgment is not applicable to the facts of the present case because in that

case accident took place in 1995 and case was decided on the basis of old India Motor Tariff

Regulations whereas old Tariff Regulations have been replaced by new India Motor Tariff Rules

applicable from 30.6.2002.

10.    Consequently, revision petition is allowed and impugned order dated 26.5.2008 passed by

learned State Commission in Appeal No. 759 of 2008  - New India Assurance Co. Ltd. Vs.

Ashok Thakur is set aside and complaint stands dismissed with no order as to costs.

         

………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION NO. 2299 OF 2013

(From the order dated 09.04.2013 in First Appeal No. 905/2012 of Rajasthan State Consumer Disputes Redressal Commission)

 

Shriram General Insurance Co. Ltd. Registered office at E-8, EPIP, RIICO Industrial Area, Sitapura, Jaipur – 302022

... Petitioner

  Versus

1. Jamshed Khan s/o Sh. Gurmalli Khan r/o Village Nangal Ratawat, Tehsil & District Alwar Rajasthan 

2. Kotak Mahindra Bank Limited, Branch office Dasta Arked, Station Road, Alwar Rajasthan

… Respondent(s)

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 APPEARED AT THE TIME OF ARGUMENTS

 For the Petitioner(s)  Mr. Naveen Kumar Chauhan, Advocate

 

For the Respondent–1  Ms. Govind Narayan, Advocate

Ms. Aneeta Pratap Singh, Advocate

 

For the Respondent–2   Mr. Satish Mishra, Advocate

 

PRONOUNCED ON : 5 th DECEMBER 2013

O R D E R 

PER DR. B.C. GUPTA, MEMBER 

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 09.04.2013, passed by the Rajasthan State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 905/2012, “Shriram General Insurance Co. Ltd. versus Jamshed Khan & Anr.”, vide which while dismissing appeal, the order dated 12.06.2012, passed by District Consumer Disputes Redressal

Forum, Alwar, in consumer case No. 1146/2011, allowing the consumer complaint in question, was upheld.

 

2. Brief facts of the case are that the complainant/respondent no. 1, Jamshed Khan got his vehicle, truck no. RJ 02 GA 4192 insured with the petitioner/OP vide policy no. 10004/31/11/029678 for the period from 11.03.2011 to 10.03.2012 on comprehensive basis. The said truck was travelling from Kolkata to Alwar on 27.05.2011, when the front tyre of the said truck suddenly burst, due to which there was sparking in the diesel tank and the truck caught fire and got completely burnt. An intimation was given to the Insurance Company which appointed a surveyor to carry out the spot survey. The complainant then brought the truck to Alwar with the help of crane by spending a sum of `25,000/-. An FIR was registered at Police Station Sirsi Ganj, Firozabad regarding this incident as per FIR No. 14 dated 28.05.2011. It has been stated in the complaint that the surveyor appointed by the Insurance Company found the truck completely burnt. A claim was lodged with the Insurance Company for reimbursement of claim amount of `14,20,000/- with interest and further compensation etc. However, the claim was repudiated by the OP on the ground that the vehicle was overloaded in violation of the policy condition, due to which the alleged incident happened. It was also stated that the forged Lodged Challan has been produced by the claimant. The loss assessed as per the surveyor report is `9 lakh. The OP No. 2 Bank alleged that on 1.05.2012, the loan amount due towards the said vehicle was `12,21,186.17ps. and requested for refund of the loan amount. The complainant filed the consumer complaint in question before the District Forum on 19.12.2011 and the said Commission vide their order passed on 12.06.2012, allowed the complaint and directed that the Insurance Company should pay the loan amount of `12,21,186.17ps. with any interest etc. The balance amount and another sum of `5,000/- should be paid to the complainant for mental harassment and litigation expenses. It was observed by the District Forum that no specific evidence had been produced by the OP Insurance Company in support of their version that at the time of accident, the said vehicle was overloaded or any fake Load Challan was produced. An appeal filed against this order before the State Commission was dismissed by the State Commission on 09.04.2013. It is against this order that the present revision petition has been made.

 

3. At the time of hearing before us, learned counsel for the petitioner reiterated the grounds taken in the revision petition and stated that the Insurance Policy was a contract between the insured and the insurer, and hence the terms and conditions of the said contract have to be strictly construed to determine the extent of liability of the insurer. He pointed out that as per the terms and conditions in case of over-loading etc., the Insurance Company was not bound to pay for the claim and hence, the lower courts had taken an erroneous view of the facts and circumstances on record. On the other hand, the learned counsel for the respondents stated that the District Forum had rightly observed that there was no specific evidence in support of the version that the vehicle was over-loaded at the time of accident or any fake Load Challan has been produced.

 

4. We have examined the material on record and given a thoughtful consideration to the arguments advanced before us. The claim of the complainant has been repudiated by the petitioner/OP on the ground that at the time of accident, the vehicle was overloaded and hence, there has been violation of the terms and conditions of the agreement; so the Insurance Company had no liability to pay the amount of claim to the complainant. The District Forum found that no specific evidence to support the version of the insurance company had been produced on record. The District Forum allowed the consumer complaint, but in the First Appeal filed before the State Commission, although the order of District Forum has been upheld, but the learned State Commission has not given any specific reasons for coming to the conclusion that the order passed by the District Forum was in accordance with law. A mere perusal of the order passed by the State Commission reveals that the State Commission has not carried out any analysis of the facts on record and given reasons for supporting the version of the complainant. It is a matter of common jurisprudence that any party to the litigation has a right to file Appeal and the concerned Authority is duty bound to discuss their view point and then give cogent and convincing reasons for arriving at their conclusion.

 

5. Hon’ble Apex Court in (2001) 10 SCC 659 – HVPNL Vs. Mahavir observed as under:

“2. We may point out that while dealing with a first appeal, this is not the way to dispose of the matter. The appellate forum is bound to refer to the pleadings of the case, the submissions of the counsel, necessary points for consideration, discuss the evidence and dispose of the matter by giving valid reasons. It is very easy to dispose of any appeal in this fashion and the higher courts would not know whether learned State Commission had applied its mind to the case. We hope that such orders will not be passed by the State Consumer Disputes Redressal Commission, Haryana at Chandigarh in future. A copy of this order may be communicated to the Commission”.

 

6. In view of the discussion above, it is held that the State Commission should hear the parties in detail and pronounce a speaking order by carrying out detailed analysis of the facts on record. This revision petition is, therefore, allowed, the order passed by the State Commission is set aside and the matter is remanded back to the State Commission with a direction to hear the parties again and then pass a detailed speaking order as stated above.

 

7. Parties are directed to appear before the State Commission on 05.03.2014.

Sd/-

(K.S. CHAUDHARI J.) PRESIDING MEMBER

 Sd/-

(DR. B.C. GUPTA) MEMBER

RS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO.4276 OF 2007

(Against the order dated 17.7.2007 in Appeal No.785/2007 of the State Commission, Chandigarh UT)

 

National Insurance Company Limited Delhi Regional Office-I Jiwan Bharti Building Tower II, Level–IV, 124, Connaught Circus, New Delhi – 110001ALSO AT National Insurance Company Limited Regional Office II, SCO 332-334, Sector -34A Chandigarh

…Petitioner

  Versus

 Jagjit Singh S/o Sh. Nihal Singh, Prop. M/s. N.S. Metal Industries, Sodhal Saipur Road, Jalandhar City, Punjab

….Respondent

 BEFORE:

     HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

     HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Ms Hetu Arora Sethi, Advocate

 For the Respondent : Nemo

 Pronounced on: 5 th December, 2013  

ORDER 

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

In this revision petition, filed under Section 21(b) of Consumer Protection Act, 1986 (for short,

‘Act’), there is challenge to order dated 17.7.2007, passed by State Consumer Disputes Redressal

Commission, Chandigarh UT (for short, ‘State Commission’), in F.A. No.785 of 2007.

2. Brief facts are that Respondent-Complainant got his Maruti Zen Car insured from the Petitioner-

Opposite Party vide insurance policy which was valid upto 14.3.2006. The said car met with an accident on

27.11.2005 and was badly damaged. Respondent informed the Petitioner about the accident and got his car

repaired from Swami Motors Pvt. Ltd. where he spent Rs.43,873/-. However, petitioner repudiated the

claim on the ground that respondent was not holding valid driving licence on the date of accident.

Respondent challenged the repudiation on the ground that his driving licence was renewed from 2.5.2003

to 29.12.2010. Thus, he was holding valid driving licence on the date of accident. Petitioner in its reply

took the stand that the insured was not holding valid driving licence at the time of alleged accident which

had expired on 2.5.2003. Therefore, the claim was rightly repudiated. District Forum vide order dated

20.4.2007, allowed the complaint in the following terms;-

“As such, we allow the complaint for compensation as per report of

survey and direct the O.P. to pay Rs.32,069/- with 9% interest after three

months from the submission of the claim till payment. Complainant is also

entitled to Rs.2,000/- as costs of litigation and interest would serve as

compensation. Compliance of the order be made within one month from

the receipt of copy of

 

3. Aggrieved by the order of District Forum, Respondent filed an appeal before the State Commission

which dismissed the same in limine.

4. Hence, this revision petition.

5. On 24.7.2013, when the matter was listed for final hearing, none appeared on behalf of respondent.

However, respondent had already sent his written submissions by post on 31.8.2012.

6. We have heard learned counsel for the petitioner and gone through the written submissions of the

respondent as well and perused the record.

7. The main plea of learned counsel for the petitioner is that it is an admitted case that respondent was

not holding a valid driving licence on 27.11.2005 and produced a driving licence which was renewed later

but from the date of expiry. Further, as per Section 15 of the Motor Vehicles Act, 1988 a holder of a

licence on the expiry of the licence is required to get the licence renewed within a period of 30 days from

the date of expiry of licence. Admittedly, respondent produced the driving licence dated 30.12.2005 and

the said licence could not have been dated back to the date of accident i.e. 27.11.2005 and it cannot be held

that the licence which had been issued to the respondent on 30.12.2005 would be held valid w.e.f.

02.05.2003. Therefore, the order passed by the fora below are not sustainable and are liable to be set aside.

In support, learned counsel has relied upon the following judgments;

i) New India Assurance Company Ltd. Vs. Suresh

Chandra Aggarwal,

(2009) 15 Supreme Court Cases 761 and

 

ii) Ram Babu Tiwari Vs. United India Insurance

Company Limited and others,

(2008) 8 Supreme Court Cases 165.

 

8. On the other hand, respondent in its written submissions has stated that he got renewed his driving

licence from the date of its expiry from the concerned authority after paying penalty for the expiry period.

Further, as his licence was renewed from 2.5.2003 upto 29.12.2010, so it cannot be said that at the time of

accident, respondent was not having driving licence. Moreover, respondent was not issued any fresh

driving licence rather the old one was renewed from the date of its expiry, that is, w.e.f. 2.5.2003. Further,

both the fora below have rightly held that rights and liabilities are governed by the insurance policy and

according to policy conditions, petitioner can only repudiate the claim if the driver was disqualified from

holding a driving licence. In the present case, respondent was not disqualified from holding the driving

licence and his driving licence has been renewed from the back date.

9. It is an admitted fact that respondent’s car had met with an accident on 27.11.2005. It is not in

dispute that on the date of accident, the driving licence of the respondent had already expired on 2.5.2003.

Though as per respondent’s case the same was renewed later on, but w.e.f. 2.5.2003.

10. Hon'ble Supreme Court in Suresh Chandra Aggarwal (Supra) observed;

“12. Before we deal with the rival contentions, it would be appropriate to briefly refer to

the relevant provisions of the Motor Vehicle Act, 1988 (for short, ”the Act” Section 3(1)

of the Act inter alia stipulates that;

“3. Necessity for driving licence –(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle”.

13. Section 5 declares that no owner or person in charge of a motor vehicle shall cause

or permit any person who does not satisfy the provisions of Section 3 of the Act, to drive

the vehicle. Section 15 which provides for renewal of driving licence, insofar as it is

relevant for our purpose, reads as follows:

“15. Renewal of driving licences.--(1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry:

Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal: The Section empowers a licensing authority to renew a driving licence issued under the provisions of the Act with effect from the date of its expiry. However, proviso to the said provision clearly provides that where an application for renewal of a licence is made more than 30 days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal.”

The section empowers a licensing authority to renew a driving licence issued under the provisions of the Act with effect from the date of its expiry. However, the proviso to the said provision clearly provides that where an application for renewal of a licence is made more than 30 days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal.

14. Section 19, relied upon by learned counsel for the claimant, authorizes the licensing

authority to disqualify any person from holding a driving licence or revoke such a licence

if the licensing authority is satisfied that the holder of the driving licence is indulging in

any of the acts, detailed in sub-section (1) of Section 19 of the Act. Indubitably, no such

order had been passed against the driver of the vehicle involved in the accident.

15. Having noted the relevant Statutory provisions, we may now advert to the facts at

hand. As noticed above, the stand of the appellant is that the claim preferred by the

claimant could not be processed and had to be repudiated because special condition No.

5 of the insurance policy had been violated inasmuch as the driver of the insured vehicle

did not have an effective driving licence at the time of the accident.

16. Special condition No. 5 reads as follows:

“5 Persons or classes of persons entitled to drive (a) The insured,

(b) Any other person who is driving on the insured's order or with his permission.

Provided that the person driving holds or had held and has not been disqualified from holding an effective driving licence with all the required endorsements thereon as per the Motor Vehicles Act and the Rules made thereunder for the time being in force to drive the category of Motor Vehicle insured hereunder.”

It is manifest that the said condition contemplates that apart from the insured, any other person, authorised by the insured, could also drive the vehicle provided the person driving the vehicle “holds or had held and has not been disqualified” from holding an effective driving licence.

17. In the instant case, as noted above, as per the certificate issued by the

licensing authority, the driving licence of the deceased driver had expired on 25th

October, 1991 i.e. four months prior to the date of accident on 29th February, 1992

and it was renewed with effect from 23rd March, 1992. It is not the case of the

claimant that the driver had applied for renewal of the licence within 30 days of the

date of its expiry. On the contrary, it is the specific case of the appellant that the

driving licence was renewed only with effect from 23rd March, 1992. 18. From a

plain reading of Section 15 of the Act, it is clear that if an application for renewal

of licence is made within 30 days of the date of its expiry, the licence continues to

be effective and valid without a break as the renewal dates back to the date of its

expiry. Whereas, when an application for renewal is filed after more than 30 days

after the date of its expiry, proviso to sub-section (1) of Section 15 of the Act, gets

attracted and the licence is renewed only with effect from the date of its renewal,

meaning thereby that in the interregnum between the date of expiry of the licence

and the date of its renewal, there is no effective licence in existence. The provision

is clear and admits of no ambiguity.

19. However, the stand of the claimant before the District and State Fora as also

before us was that since the deceased driver was holding a valid licence and had

not been disqualified from holding an effective licence, the stipulation in the afore-

extracted condition was not infringed. In our view, the argument is stated to be

rejected.

20. Admittedly, having failed to apply for renewal of the driving licence within 30

days from the date of its expiry in terms of Section 15 of the Act, the licence could

not be renewed with effect from the date of its expiry and therefore, between the

period from 26th October, 1991 to 22nd March, 1992, the deceased driver had no

valid and effective driving licence as contemplated under Section 3 of the Act. We

are convinced that during this period, he did not hold at all an effective driving

licence, as required in the terms and conditions governing the policy on the date of

accident i.e. 29-2-1992.

21. As a matter of fact, in view of the clear mandate of Section 3 of the Act, the

deceased driver was not even permitted to drive the insured vehicle in a public

place. Furthermore, the claimant not only committed breach of the terms of the

policy, he also violated the provisions of Section 5 of the Act by entrusting the

vehicle to a person who did not hold a valid licence on the date of the accident.”

11. To similar effect is the decision of Ram Babu Tiwari (Supra), wherein Apex Court after analyzing

the provisions of Section 15 of the Motor Vehicle Act, 1988 observed ;

“18. It is beyond any doubt or dispute that only in the event an application for

renewal of licence is filed within a period 30 days from the date of expiry thereof,

the same would be renewed automatically which means that even if an accident had

taken place within the aforementioned period, the driver may be held to be

possessing a valid licence. The proviso appended to sub-section (1) of Section 15,

however, clearly states that the driving licence shall be renewed with effect from the

date of its renewal in the event the application for renewal of a licence is made

more than 30 days after the date of its expiry. It is, therefore, evident that as, on

renewal of the licence on such terms, the driver of the vehicle cannot be said to be

holding a valid licence, the insurer would not be liable to indemnify the insured.

19. The second proviso appended to sub-section (4) of Section 15 is of no

assistance to the appellant. It merely enables the licensing authority to take a

further test of competent driving and passing thereof to its satisfaction within the

meaning of Sub-section (3) of Section 9. It does not say that the renewal would be

automatic. It is, therefore, a case where a breach of the contract of insurance is

established. This aspect of the matter has been considered by this Court in National

Insurance Co. Ltd. v. Kusum Rai & Ors. [(2006) 4 SCC 250] holding :

"11. It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefor. Ram Lal who allegedly was

driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a light motor vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The appellant, therefore, could raise the said defence."

 

It was furthermore held :

"14. This Court in Swaran Singh clearly laid down that the liability of the Insurance Company vis-a-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle."

 

It was opined :

 

"16. In a case of this nature, therefore, the owner of a vehicle

cannot contend that he has no liability to verify the fact as to

whether the driver of the vehicle possessed a valid licence or

not."

 

20. The principle laid down in Kusum Rai (supra) has been reiterated in Ishwar

Chandra & Ors. v. Oriental Insurance Co. Ltd. & Ors. [(2007) 10 SCC 650],

referring to sub-section (1) of Section 15 of the Act, this Court stated the law,

thus :

"9. From a bare perusal of the said provision, it would appear

that the licence is renewed in terms of the said Act and the rules

framed thereunder. The proviso appended to Section 15(1) of the

Act in no uncertain terms states that whereas the original

licence granted despite expiry remains valid for a period of 30 days

from the date of expiry, if any application for renewal thereof is

filed thereafter, the same would be renewed from the date of its

renewal. The accident took place 28-4-1995. As on the said date,

the renewal application had not been filed, the driver did not have

a valid licence on the date when the vehicle met with the accident."

 12. As per averments made in the complaint, it is respondent’s own case that driving licence had

expired on 2.5.2003 but rather the old one was renewed from its date of expiry i.e., 2.5.2003. However,

respondent for reasons best known to him has not placed on record either original driving licence or copy

thereof.

13. Be that as it may, respondent in its entire complaint has nowhere mentioned as to on which date he

applied for renewal of his driving licence which had admittedly expired on 2.5.2003. However, after

scanning the entire record, we note that as per letter addressed to this Commission received on 12 th March,

2012 (copy placed at page no.48 of the paper book. Respondent admits that ;

“The valid and effective Driving Licence No.R8334/00 was renewed

vide No.R-14344 dated 30.12.2005.”

14. Thus, the driving licence of the respondent which had expired long ago on 2.5.2003 was renewed

only w.e.f. 30.12.2005, that is, after about 2 years and 8 months after its expiry. Under these circumstances,

we have no hesitation in holding that at the time of accident, respondent was not having a valid and

effective driving licence.

15. Moreover, in view of the above authoritative pronouncements of the Apex Court quoted above,

since, the driver of the car was not having a valid and effective driving licence, it is manifestly clear that

both the fora have committed grave error in allowing the complaint of the respondent.

16. Accordingly, we allow the present revision petition and set aside the orders passed by the fora

below, with the result that, the complaint filed by the respondent before the District Forum shall stand

dismissed.

17. Parties shall bear their cost.

 ………………………………………J

(V.B. GUPTA) PRESIDING MEMBER

………………………………………

(REKHA GUPTA) MEMBER

SG/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION NO. 1725 OF 2007

(Against the order dated 12.03.2007 in Appeal No.110 of 2006 of the State Commission, Delhi)

 

Mrs. Savita Suneja Wife of Mr. R.L. Suneja, R/o DG-III/186, Vikas Puri, New Delhi- 110018

...... Petitioner

Vs.

1. Dr. R.S. Oberoi, Bir Nursing Home (Govt. Approved) A-10, Vikas Puri, Main Najafgarh Road, New Delhi-110018 

2. The New India Assurance Company Ltd. Gulab Bhawan, BSZ Marg, New Delhi 110002 Also at Divisional Office at 1/704, IInd Floor, G.T. Road, Shahadra, Delhi 1100032

.....Respondents

 

REVISION PETITION NO. 2434 OF 2007

(Against the order dated 12.03.2007 in Appeal No.110 of 2006 of the State Commission, Delhi)

 

1. Dr. R.S. Oberoi, Bir Nursing Home, A-10, Vikas Puri, Najafgarh Road, New Delhi- 110018 

2. New India Assurance Co. Ltd., Through its Senior Divisional Manager, 1/704, 2nd Floor, G.T. Road, Shahdara, Delhi-110032

…..Petitioners

Vs.

Smt. Savita Suneja DG-III/186, Vikas Puri, New Delhi- 110018

….Respondent

 BEFORE:

HON’BLE MR. JUSTICE D.K.JAIN, PRESIDENT

HON’BLE MRS. VINEETA RAI, MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER       

 

RP/1725/2007

For the Petitioners : Mr. R.L. Suneja, Advocate

For the Respondents : Dr. Susil Kumar Gupta, Advocate

  

RP/2434/2007

For the Petitioners : Dr. Susil Kumar Gupta, Advocate

For the Respondent : Mr. R.L. Suneja, Advocate

 PRONOUNCED ON: 09-12-2013

ORDER

PER MR. VINAY KUMAR, MEMBER

The Matter in the present proceedings arises from an incident of 18.12.2004. The

Complainant, Mrs. Savita Suneja had fractured her left arm in a fall. She was treated at Bir

Nursing Home by OP-1/Dr. R.S.Oberoi. The case of the Complainant was that she was wrongly

diagnosed to have suffered communited fracture of the ulna, while it was actually a case of

‘Monteggia (fractured Ulna and dislocation and fracture of radial head (variant)’. For such a

fracture with dislocation, the only remedy was anatomical repositioning by open reduction and

internal fixation of ulna. Allegedly, failure on the part of OP -2 to do so resulted in permanent

disability in her left arm, affecting her normal functioning.

2. The District Forum allowed the complaint and awarded compensation of Rs.2 lakhs,

together with cost of Rs.10,000/- . The State Commission Delhi agreed with the finding of the

District Forum and held that it was a case of medical lapse due to wrong diagnosis. However,

the Commission reduced the awarded compensation of Rs.2 lakhs to Rs.1 lakh on the ground that

there was no evidence as to the percentage of disability suffered by the Complainant.

3. The above order of the State Commission has been challenged by both sides. RP No.

1725 of 2007 has been filed by the Complainant against reduction of the quantum of

compensation. RP No.2434 of 2007 is filed by the OPs challenging the concurrent finding of

medical negligence against it. We have carefully perused the records and heard Mr. R.L.

Suneja, Advocate for Mrs. Savita Suneja and Dr. Susil Kumar Gupta, Advocate for Dr.

R.S.Oberoi and another.

4. At the outset it needs to be observed that the District Forum, in the course of the detailed

consideration of the matter, had obtained expert opinion from All India Institute of Medical

Science (AIIMS). This report of Dr. Surya Bhan, Prof. and Head of the Department of

Orthopaedics addressed to the Medical Superintendent, AIIMS has observed that:-

“1. The X-rays dated 18.12.04, 19.12.04 & 31.12.04 reveal a Monteggia variant injury of

the left elbow.

2. This injury can be treated by closed reduction and plastering.”

5. The term Monteggia fracture derives its name from Giovanni Monteggia and is described

as fracture of Ulna in association with dislocation of the Radial head. (source-

www.wheelessonline.com

) Thus, as per the opinion of AIIMS, it was a case of Monteggia variant. It would mean that it

involved not only fracture of the Ulna but also the dislocation of the Radius head i.e. the elbow.

On the other hand, as already noted, the stand of the OP/Dr R S Oberoi, before the fora below,

was that he had diagnosed it as a case of Comminuted fracture (i.e. a fracture with more than two

fragments) of the Ulna. In other words, dislocation of the Radial head i.e. the elbow was not a

part of the OP’s diagnosis.

6. In his revision petition, Dr Oberoi has attempted to expand the scope of consideration

when he refers to the X-Ray of 2005 taken by another doctor. But the fact remains that before the

fora below the OPs have failed to challenge the expert opinion of the AIIMS which is based on

the three X Ray reports of 2004. Significantly, the record shows that all three X-Rays were taken

on the advice of OP-2, Dr Oberoi himself. This was also pointed out by learned counsel for the

complainant. Neither the revision petition nor the arguments of the counsel for the

petitioners/OPs have made any attempt to explain the gap in their diagnosis based upon the same

three X-Ray reports.

7. On the contrary, the attempt is to obfuscate the issue by claiming that the treatment given

was the same as opined in the report of the AIIMS i.e. closed reduction and plastering. The

revision petition states that—

“ f. Because the learned Commission has erred in holding the doctors negligent on the basis of

his assumption that the very fact that the treatment imparted was not closed reduction and

plastering wherein fact the actual treatment provided was closed reduction and plastering only.

g. Because the State Commission has erred and wrongly concluded without any basis that the

diagnosis was wrong as it was not a case of comminuted fracture of Ulna wherein fact the

Monteggia fracture variant includes comminuted fracture Ulna also.”

8 . In our view, these contentions offer no help to the case of the OPs. The claim that

Monteggia fracture includes fracture of the Ulna, in itself amounts to an admission that the

diagnosis was incomplete, as it was limited to fracture of the Ulna and as it did not include

dislocation of the Radial end i.e. the elbow. Consequently, the first contention would amount to

making an illogical claim that even with incomplete diagnosis, the treatment given to the

complainant was complete. There is no explanation how dislocation of the elbow could have

been treated if it was not even diagnosed by the OPs. We therefore, find no merit in

RP/2434/2007.

9. The other revision petition No. RP/1725/2007 has been filed by the complainant, against

reduction of the amount of compensation by the State Commission. The State Commission has

reduced the amount as “there is no evidence as to the percentage of disability suffered by the

respondent.” The revision petition clearly states that—

1. Because the petitioner had applied for disability certificate in the Government Hospital but

her request was not entertained on the ground that within one year of injury, disability certificate

cannot be considered. Thus, the petitioner had no opportunity to place on record the disability

certificate before the Ld. District Forum. Now, the petitioner has applied afresh for disability

certificate. The past and present application for grant of disability certificate filed by the

Petitioner are enclosed as Annexure VIII and IX, respectively. Therefore the Ld. State

Commission ought not to have faulted the Petitioner for not producing any disability certificate.”

It is therefore clear that non-submission of disability certificate, remains an uncontroverted fact.

We therefore find no merit in the contention for enhancement of the amount of compensation.

10. For the reasons detailed above, revision petition Nos. 1725 of 2007 and 2434 of 2007 are

both held to be devoid of any merit and are dismissed as such. Parties to bear their own costs.

  …..…………….…Sd/-….……

(D. K. JAIN, J.)

PRESIDENT

 

…..…………….Sd/-…….……

(VINEETA RAI)

MEMBER

 

…..…………….Sd/-…….……

(VINAY KUMAR)

MEMBER

S./-

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3450 OF 2008

(From the order dated 29.04.2008 in S.C. Case No. 203/A/2007 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata)

  United India Insurance Co. Ltd. 3/20/A, K.K. Banerjee Road, P.O. & P.S. Berhampore Distt. Murshidabad (West Bengal)  Through  ManagerRegional Office-1, Kanchenjunga Building, 18, Barakhamba Road, New Delhi – 110001

…Petitioner/Opp. Party (OP) Versus1. Mr. Bhriguram Mondal S/o Late Anukul Mondal Prop. Debdut Battery Gopinathpur Petrol Pump Road, P.O. & P.S. Kandi Distt. Murshidabad (West Bengal) 2. Bank of Baroda Kharsa Branch Kandi, Distt. Murshidabad (West Bengal) Through Its Branch Manager

…Respondents/ Complainants

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : Mr. Kishore Rawat, Advocate

For the Res. No. 1 : Mr. Surender Singh Hooda, Advocate

For the Res. No. 2 : Ex-parte.

PRONOUNCED ON 9 th December , 2013  

O R D E R  PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the petitioner against the order dated 29.4.2008

passed by West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, ‘the

State Commission’) in S.C. Case No. 203/A/2007 – United India Ins. Co. Ltd. Vs. Mr.

Bhirguram Mondal & Anr. by which, while allowing appeal partly, order of District Forum

allowing complaint was modified.

2. Brief facts of the case are that complainant/respondent no. 1 was carrying on its business

of selling battery under the name “Debdut Battery” and had also taken loan from OP no.

2/Respondent no. 2. Complainant insured the stock-in-trade for Rs.4,00,000/- with OP no.

1/petitioner. On 16.12.2004, due to short- circuit, fire broke out and insured goods destroyed in

the fire. Complainant intimated to OP no. 1 and OP no. 1 appointed surveyor for assessing loss.

Surveyor conducted survey on 22.12.2004. Later on, complainant came to know that OP has

made payment of Rs.79,058/- to OP no. 2 from whom complainant had taken loan and this

amount was adjusted against his loan amount without his consent and knowledge, whereas loss

was caused to the tune of Rs. 4,00,000/-. Alleging deficiency on the part of OP, complainant

filed complaint before District Forum. OP no. 1 resisted complaint and submitted that they

asked complainant to receive payment of the claim, but as he did not respond, amount was

deposited with the bank. OP no. 2 filed written statement and acknowledged receipt of the

aforesaid amount. Leaned District Forum after hearing both the parties directed OP no. 1 to pay

additional amount of Rs.2,90,000/-. Petitioner filed appeal before learned State Commission and

learned State Commission vide impugned order partly allowed appeal and modified order of

District Forum and directed OP no. 1 to pay Rs.2,21,000/- instead of Rs.2,90,000/- against

which, this revision petition has been filed.

3. None appeared for the respondent no. 2 and he was proceeded ex-parte.

4. Heard learned Counsel for the parties and perused record.

 

5. Learned Counsel for the petitioner submitted that as per survey report, petitioner made

payment of Rs.79,058/-; even then, learned District Forum committed error in directing

petitioner to pay Rs.2,90,000/- and learned State Commission further committed error in

dismissing appeal partly; hence, revision petition be allowed and impugned order and order of

District forum be set aside. On the other hand, learned Counsel for the Respondent no. 1

submitted that order passed by learned State Commission is in accordance with law; hence,

revision petition be dismissed.

6. It is not disputed that complainant was carrying on business of batteries. It is also not

disputed that stock-in-trade of the complainant was insured by OP no. 1 and fire broke out due to

short-circuit. Now, the question to be decided is what amount should have been awarded by OP

no. 1 for settlement of claim.

7. Learned District Forum allowed additional Rs.2,90,000/-, but learned State Commission

while reducing the amount observed that complainant should have come forward with additional

evidence and as complainant has not filed any additional evidence, his claim was allowed on

non-standard basis i.e. 75% of the loss.

 

8. Perusal of record reveals that except bank statement, we are not finding any document in

support of bank statement for ascertaining price and quantity of batteries. Learned State

Commission rightly observed that complainant filed stock statement to corroborate its claim, but

he should have come forward with additional evidence. Complainant ought to have filed

purchase bills to ascertain quantity of batteries in his shop as well as their price. Perusal of

survey report reveals that fire was very small one and most of the affected items were identified

physically in Annexure-1 of the survey report. Surveyor has given make of batteries, number

and their rates, which do not tally at all with the stock statement given by the complainant to the

bank. In the absence of purchase bills the quantity of batteries as well as their price cannot be

ascertained. Claim is to be allowed on the basis of survey report alone. Complainant was under

an obligation to file documents to rebut survey report otherwise survey report being an authentic

document is to be relied. In survey report, make of batteries, their quantity and rates have been

given, which do not tally at all with the stock statement and in such circumstances, no reliance

can be placed on stock statement.

 

9. Learned State Commission has committed error in allowing complaint on non-standard

basis basing judgment on stock statement and learned District Forum committed error in

allowing complaint solely on the basis of stock statement and brushing aside survey report

without any cogent reason.

 

10. Petitioner has already made payment of claim as per survey report and complainant is not

entitled to get any additional amount by way of this complaint and complaint is liable to be

dismissed.

 

11. Consequently, revision petition filed by the petitioner is allowed and impugned order

dated 29.4.2008 passed by State Commission in S.C. Case No. 203/A/2007 – United India Ins.

Co. Ltd. Vs. Mr. Bhirguram Mondal & Anr. and order of District Forum dated 15.5.2007 in

Complaint Case No. 147/2007 - Mr. Bhirguram Mondal & Anr. Vs. United India Ins. Co. Ltd. is

set aside and complaint stands dismissed with no order as to cost.

………………Sd/-……………

( K.S. CHAUDHARI, J)

PRESIDING MEMBER

Sd/-

..……………………………

( DR. B.C. GUPTA )

MEMBER

k

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION NO. 3523 OF 2013

(From the order dated 14.08.2013 in First Appeal No. A/10/868 of Maharashtra State Consumer Disputes Redressal Commission)

 

Dr. Himatsinh Narayanrao Shinde r/o 1133, Sykes Ext. Kolhapur – 416001 Maharashtra

... Petitioner

  Versus

 Branch Manager Life Insurance Corporation of India Royal Plaza, Dabholkar Corner Kolhapur Maharashtra.

… Respondent

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 

APPEARED AT THE TIME OF ARGUMENTS 

For the Petitioner(s)  In person

 

PRONOUNCED ON : 9 th DECEMBER 2013

O R D E R  

PER DR. B.C. GUPTA, MEMBER

 

This revision petition has been filed against the impugned order dated 14.08.2013, passed by the Maharashtra State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No. A/10/868, “Dr. Himatsingh Narayanrao Shinde versus LIC Housing Finance Co. Ltd.”, vide which while dismissing appeal, the order passed by the District Consumer Disputes Redressal Forum, Kolhapur on 20.07.2010 in consumer complaint no. CC/10/30, dismissing the complaint, was upheld. This petition has been filed against the impugned order as second appeal, but it is being heard as revision petition under section 21(b) of the Consumer Protection Act, 1986 because there is no provision for second appeal in the Act.

 

2. The facts of the case, as stated in the complaint filed by the petitioner/complainant are that he obtained a loan of `11,90,000/- on 14.07.2005 from the respondent/OP for construction of

a house at E/1133, Sykes Extension, Kolhapur. The loan was obtained at floating rate of interest and its repayment term was for 20 years and the EMI (equated monthly instalment) was `9,627/- per month. The rate of interest at the time of taking loan was 7.5% and an agreement was also executed between the parties. However, later on, due to increase in rate of interest, the liquidation date of the loan was extended by the OP unilaterally upto 1.07.2030. The complainant says that he instructed the OP that if the rate of interest increases in future, the amount of EMI should be increased and not the date of repayment of loan. The complainant says that still on 27.07.2007, he found that the EMI had been kept at `9627/- per month, out of which the component of repayment of principal was very small, i.e., `193/- per month. The complainant sent a letter to the OP, saying that the repayment of loan should be rescheduled so that the entire amount could be returned within a period of 10 years and correspondingly, the amount of EMI may be increased. It has been stated that another agreement was executed between the parties, saying that the repayment term shall be kept constant at 10 years. According to the complainant, the OP did not keep its promise of keeping the repayment period upto 10 years, and hence committed breach of agreement dated 26.07.2007. The consumer complaint was filed by the petitioner/complainant claiming refund of `3,53,710/-, the amount that he had paid in the shape of EMIs till date and also a compensation of `5 lakh was demanded. The complainant also transferred his house loan to the Axis Bank, Kolhapur and as per his version, he incurred a sum of `35,000/- for the transfer of the loan and requested that the said amount may also be recovered from the OPs. The District Forum vide their order dated 20.07.2010, dismissed the complaint, saying that no deficiency in service had been committed by the OP. An appeal filed against this order was dismissed by the State Commission, observing that the petitioner had not produced any evidence to support his allegations that he was ever put under duress or he had to pay extra money as repayment of loan or had been over-charged by the OP. The State Commission also observed that it seems to be a case of mis-understanding between the parties, because the change of rate of interest, the quantum of EMI of the repayment schedule was likely to change. It is against this order that the present petition has been made.

 

3. At the time of hearing before us, the petitioner himself argued the case, reiterating the grounds mentioned in the complaint and the revision petition. He vehemently argued that the OP had committed a grave deficiency in service towards him and had violated the terms and conditions of the agreement executed between the parties. He was, therefore, forced to transfer his loan account to the Axis Bank, for which he had to incur an extra expenditure of `35,000/-.

 

4. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. It is a fact admitted between the parties that a loan of `11.9 lakh was advanced to the petitioner by the OP at floating rate of interest. It is clear, therefore, that whenever there is a change in the interest rate, the amount of EMI and the repayment schedule are likely to change. In case, the loanee desires to make repayment of loan earlier, he has to enter into an understanding to this fact with the lending institution. In any case, the accounts maintained by any lending institution are supposed to present a clear picture about the recovery amount and the outstanding amount on a given date and the rate of interest charged from a loanee for a particular period. In the present case, it seems to be a case of plain misunderstanding between the petitioner and the loanee institution about the quantum and schedule of repayment of the loan amount. The petitioner has not been able to show anywhere that the OP has charged any extra / excessive amount form him which was not permissible under rules. It is a general proposition that in the earlier instalments of EMI, the quantum of interest being paid is more and the amount of principal being repaid is very small. With the passage of time, the proportion of principal being returned goes on increasing. In the present case, the petitioner has failed to show how the OP has been found wanting in providing the requisite service to him. Further, it has come on record that the petitioner has already shifted his loan account to the Axis Bank. In so far as the extra money spent in shifting of loan is concerned, the OPs cannot be held accountable for reimbursement of the same as the account has been shifted by the petitioner himself at his free will.

 

5. From the above discussion, it is very clear that the petitioner has not been able to prove by any means that the OP has committed deficiency in service or has done anything wrong to him. We, therefore, do not find any illegality, irregularity or jurisdictional error in the order passed by the State Commission. The present revision petition is, therefore, ordered to be dismissed and the orders passed by the Fora below are upheld with no order as to costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

 

 

Sd/-

(DR. B.C. GUPTA)

MEMBER

RS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION NO. 3090 OF 2013

(From the order dated 29.05.2013 in First Appeal No. 1233/2008 of U.P. State Consumer Disputes Redressal Commission)

 

The New India Assurance Co. Ltd.Through its Assistant Manager, Vidhi Parkosth, 94 Mahatama Gandhi Marg, Lucknow

... Petitioner

  Versus

 Vinay Kumar Pandey, s/o Rama Shanker Pandey r/o Mohalla Nirala Nagar (Parmanandpur) Garhwar Road City Balia Pargana & District Balia

… Respondent  

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 

APPEARED AT THE TIME OF ARGUMENTS 

For the Petitioner  Ms. Neerja Sachdeva, Advocate

 

For the Respondent  Mr. R.S. Pandey, Advocate

 

PRONOUNCED ON : 17 th DECEMBER 2013

O R D E R 

PER DR. B.C. GUPTA, MEMBER 

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 29.05.2013, passed by the Uttar Pradesh State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 1233/2008, “New India Assurance Co. Ltd. versus Vinay Kumar Pandey”, vide which while dismissing the complaint, the order dated 03.06.2008, passed by District Consumer Disputes Redressal Forum, Balia, in consumer complaint no. 210/2007, allowing the said complaint, was upheld.

 

2. Brief facts of the case are that the petitioner/complainant Vinay Kumar Pandey bought a Tata Sumo vehicle, bearing registration no. UP60D 1951, after raising financial support from the Punjab National Bank, Balia and got it insured with the petitioner Insurance Company for a sum

of `2,49,349/-. As stated in the complaint, on 21.12.2006, the said vehicle suddenly got imbalanced and over-turned over the road, due to a neel gai (cow) coming before it on the road and got badly damaged. The estimate for repair of the vehicle, as told by the surveyor of the Company on 31.12.2006 was `2,69,211/-. The complainant took the vehicle to Gorakhpur after incurring a cost of `6,000/- and got it repaired. As per the complainant, he spent a sum of `2,99,000/- on the repair of the vehicle, but he was given a claim of `1,08,805/- only by the Insurance Company. The complainant filed the consumer complaint in question, stating that he should be given a sum of `3,56,995/- which includes the balance money spent on repair, a compensation for delayed payment, i.e., `1,50,000/-, the expenses incurred in transportation and `10,000/- as compensation for mental harassment. The District Forum vide their order dated 03.06.2008, directed that the complainant should be paid the amount of `2,49,349/- which was the sum insured under the insurance policy after deducting the amount of `1,08,805/-, already paid alongwith interest @ 9% p.a. and cost of `2,000/- as cost of litigation. An appeal filed against this order by the Insurance Company was dismissed by the State Commission vide impugned order. It is against this order that the present revision petition has been made.

 

3. At the time of hearing before us, it was stated by the learned counsel for the petitioner that the District Forum as well as the State Commission had not given any reasons for differing with the report given by the surveyor. In the report, the approximate net loss had been assessed to be `1,15,305/ and after deducting the excess amount etc., a sum of `1,08,805/- had been paid. The learned counsel has drawn our attention to the order passed by the State Commission, in which they have referred to a decision, made by this Commission in RP No. 68 of 2005, “United India Insurance Co. Ltd. versus Deen Dayal”, in which it has been stated that the report of the surveyor was an important document and should not be brushed aside lightly. However, the State Commission did not rely upon the said decision of this Commission in this case and dismissed the appeal filed by the Insurance Company. On the other hand, the learned counsel for the respondent stated that in a Revision Petition, the National Commission was supposed to go into the question of law only, and the question of fact, determining the quantum of compensation to be paid, could not be gone into at the stage of revision petition. The learned counsel stated that it was a case of total loss and hence, compensation should be given as per IDV mentioned in the Insurance Policy.

 

4. After the conclusion of arguments, written arguments were filed on the same date by the learned counsel for the respondent, which are taken on record. It has been stated therein that the surveyor had deducted 25% to 50% of the assessed amount without any law or reason. However, both the lower courts had directed to provide compensation as per the IDV value, after deduction of the amount already paid, alongwith interest. The factum of quantum of damages could not be considered in revision petition. The learned counsel, in support of his arguments, has referred to the case “Telecom District Manager, Patna versus M/s. Kalyanpur Cement Ltd.”, Revision Petition No. 44 of 1990 decided on 8.11.1990 by the National Commission, saying that the jurisdiction of the National Commission was limited to dispute, where there was wrongful, illegal or improper exercise of jurisdiction. In the case “Dharmendra Goel versus Oriental Insurance Co. Ltd.” SLP No. 14054 of 2006 decided on 30.07.2008, the Hon’ble Supreme Court had directed payment as per the IDV of the vehicle. In this case, the vehicle had been declared to be a total loss by the surveyor, appointed by the Insurance Company. The learned counsel has also drawn our attention to the order of the Hon’ble Apex Court in “New India Assurance Co. Ltd. versus Pradeep Kumar” [(2009) 7 SCC 787], saying that although the assessment of loss by an approved surveyor is a pre-requisite for payment or settlement of claim, but the report of the surveyor is not the last and final word and is neither binding upon the insurer, nor on the insured.

 

5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The report submitted by the surveyor, Vijay & Co. does mention that the original estimate for repair, including the cost of spare parts and labour had been estimated to be `2,69,211/-. However, after thorough inspection of the vehicle, the surveyor had assessed the approximate net loss to be `1,15,305/-, including the amount of `31,500/- as total labour charges. A detailed description of damaged items / parts has been given

in this report and it has also been stated that they had made comparison with the report of spot survey as well as the estimate of repairs given by M/s. Subhash Motors. However, a perusal of the orders passed by the State Commission and the District Forum indicates that they have not advanced any cogent reasons for differing with the report given by the surveyor. The impugned order of the State Commission makes a mention of the case decided by the National Commission, i.e., “New India Assurance Co. Ltd. versus Deen Dayal” in Revision Petition No. 68/2005, decided on 16.12.2008 as reported in [II (2009) CPJ 45 (NC)] in which it was held that the report of the surveyor is an important document and cannot be brushed aside lightly without any material to the contrary on record. The National Commission set aside the order passed by the State Commission, saying that it was without rationale or basis.

 

6. It is interesting to observe, however, that even after quoting this judgement, the learned State Commission has not given any reasons for making a departure from the report of the surveyor. They have also not stated whether this was a case of total loss or not and whether the insured deserved to be compensated as per the IDV of the vehicle, stated in the Insurance Policy.

 

7. Based on the above discussion, it becomes necessary that the State Commission should go into the facts and circumstances of the case once again and advance convincing reasons, if they want to disagree with the report given by the surveyor. With these observations, the present revision petition is allowed and the impugned order is set aside. The case is remanded back to the State Commission for taking a decision afresh, after giving an opportunity to the parties to present their view point again.

8. The parties are directed to appear before the State Commission on 17.04.2014.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

 

Sd/-

(DR. B.C. GUPTA)

MEMBER

RS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 REVISION PETITION NO. 2697 OF 2013

(From the order dated 26.03.2013 in Appeal No. 189 of 2012 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad)

With IA/4581/2013  Chittiprolu Lokeswara Rao S/o China Ramaiah, Prop. of Sri Lakshmi Sai Cotton Traders R/o Dr. No. 5-60-18/A, 3rd Lane, Ashok Nagar, Guntur (A.P.)

…Petitioner/Complainant Versus1. The Divisional Manager The United India Ins. Co. Ltd. Divisional Office, Kubera Towers, Guntur (A.P.)2. The Branch Manager The United India Ins. Co. Ltd. Branch-II, 12-21-56, Gowri Shankar Theatre Road, Kothapet, Guntur (A.P.)

…Respondent/Opp. Parties (OP)

 

REVISION PETITION NO. 2698 OF 2013

(From the order dated 26.03.2013 in Appeal No. 190 of 2012 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad)

With IA/4582/2013 Chittiprolu Lokeswara Rao S/o China Ramaiah, Prop. of Sri Lakshmi Sai Cotton Traders R/o Dr. No. 5-60-18/A, 3rd Lane, Ashok Nagar, Guntur (A.P.)

…Petitioner/Complainant

Versus

1. The Divisional Manager The United India Ins. Co. Ltd. Divisional Office, Kubera Towers, Guntur (A.P.)2. The Branch Manager The United India Ins. Co. Ltd. Branch-II, 12-21-56, Gowri Shankar Theatre Road, Kothapet, Guntur (A.P.)

…Respondent/Opp. Parties (OP)

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioners : Mr. S. Ravi Kumar, Advocate

For the Respondent : Mr. Zahid Ali, Advocate

For Mr. A.K. De, Advocate

PRONOUNCED ON 18 th December , 2013  

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

As both the revision petitions arise out of the common order of learned State

Commission, they are decided by common order.

Both these revision petitions have been filed by the petitioner against the order dated

26.03.2013 passed by the A.P. State Consumer Disputes Redressal Commission, Hyderabad (in

short, ‘the State Commission’) in Appeal No.189/2012 – The Div. Manager, The United India

Ins. Co. Ltd. & Anr. Vs. Chittiprolu Lokeswara Rao and in Appeal No.190/2012 – Chittiprolu

Lokeswara Rao Vs. The Div. Manager, The United India Ins. Co. Ltd. & Anr. by which, while

allowing appeal of OP, appeal of complainant was dismissed and order of District Forum was set

aside.

 2. Brief facts of the case are that complainant/petitioner was engaged in the business of

pressing and ginning of cotton. He obtained two insurance policies from OP/respondent for a

sum of Rs.20,00,000/- and Rs.25,00,000/- respectively covering the risk from 23.11.2008 to

22.11.2009. On 14.5.2009, fire broke out at the Ginning Mill and cotton stock of the

complainant was destroyed. Complainant intimated the incident to the Fire Department and

surveyor deputed by OP assessed loss of Rs.32,00,000/-, whereas complainant submitted claim

of Rs.44,76,027/-. OP compelled complainant to agree for claim of Rs.32,00,000/- otherwise

they would be repudiating the claim or postpone paymentfor six months. In such circumstances,

complainant agreed for settlement and received a sum of Rs.31,89,872/-. Alleging deficiency on

the part of OP, complainant filed complaint before District Forum. OP resisted claim and

submitted that after consideration of survey report, complainant’s claim was settled and

complainant received payment towards full and final settlement of the claim and complainant

voluntarily consented to receive a claim. Settlement of claim was also in the knowledge of

complainant’s bankers who also signed discharge vouchers and received payment by cheques. It

was further submitted that at the time of settlement of the claim or at the time of encashment of

cheques, no objection was raised. It was further submitted that Police authorities issued

clearance certificate on 22.5.2010 and intimation was received by OP on 2.6.2010 and cheques

were given on 25.6.2010 and there was no deficiency on their part and prayed for dismissal of

complaint. Learned District Forum after hearing both the parties allowed complaint and directed

OP to pay Rs.7,39,873/- with 9% p.a. interest and also awarded Rs.2,000/- towards costs. Both

the parties filed appeal before State Commission and learned State Commission vide impugned

order allowed appeal of OP and dismissed complaint and appeal of complainant was dismissed

against which these revision petitions have been filed.

 

3. Heard learned Counsel for the parties finally at admission stage and perused record.

 

4. Learned Counsel for the petitioner submitted that as payment was obtained under

compelling circumstances, learned District forum rightly allowed complaint, but learned State

Commission has committed error in allowing appeal and dismissing complaint on the ground of

receipt of payment as full and final satisfaction; hence, revision petition be allowed and

impugned order be set aside. On the other hand, leaned Counsel for the respondent submitted

that order passed by learned State Commission is in accordance with law; hence, revision

petition be dismissed.

 

5. It is not disputed that complainant obtained two insurance policies for his ginning and

pressing unit. It is also not disputed that complainant submitted claim for Rs.44,76,027/-

whereas surveyor appointed by OP assessed loss at Rs.32,00,000/-. It is also not disputed that

complainant received payment of Rs.31,89,872/- towards compensation for the cotton stock

burnt in the fire.

 

6. Learned Counsel for the petitioner submitted that amount of compensation was obtained

under compelling circumstances, as complainant was forced to receive the aforesaid amount. OP

threatened to the complainant that in case he does not accept the amount then either the claim

would be repudiated or payment will be delayed.

 

7. Complainant’s letter dated 10.5.2010 written to the OP runs as under:

“Sir,

We agree to Rs.32,00,000/- (Rupees thirty two lakhs only) as final

settlement towards compensation for the cotton stock burnt in the fire

accident on 14.5.2009. This agreement letter is written and given with our

consent. Please settle our claim immediately”.

 

which bears signatures of the complainant. After this letter, OP received clearance certificate

dated 22.5.2010 issued by the Police authorities on 2.6.2010 and cheques for aforesaid amount

were issued by the aforesaid opposite party on 25.6.2010. In such circumstances, it can be

inferred that after letter of the complainant for receiving Rs.32,00,000/- as full and final

settlement of the insurance claim, OP proceeded fast and made payment within a short period

and no deficiency can be attributed on the part of OP in delaying payment.

 

8. Letter dated 10.5.2010 was given by the complainant and in this letter, nowhere it has

been mentioned that he is giving this letter under compulsion on account of financial hardship or

under coercion, misrepresentation etc. He received payment after 1½ months and during that

period also he has not given any letter to the OP indicating that letter dated 10.5.2010 has been

given under compelling circumstances. It appears that just after encashment of cheques, notice

dated 29.6.2010 was given by the complainant’s Counsel mentioning undue influence and threat

which cannot be believed. Once the complainant has accepted amount in full and final

settlement of the claim, he is not entitled to any further amount under that claim.

 

9. Learned Counsel for the petitioner has placed reliance on (1999) 6 SCC 400 – United

India Insurance Vs. Ajmer Singh Cotton & General Mills and Ors . in which it was held that the

mere execution of the discharge voucher would not always deprive the consumer from preferring

claim if he is in a position to satisfy that discharge voucher has been obtained under the

circumstances which can be termed as fraudulent or exercise of undue influence or by

misrepresentation. We agree with the principle laid down in aforesaid judgment, but in the case

in hand, we do not find any circumstances proving fraud, undue influence, misrepresentation etc.

on the part of OP. Letter dated 10.5.2010, appears to be in the handwriting of complainant

himself and no protest was made till encashment of cheques. In such circumstances, aforesaid

citation does not help to the petitioner. He has also placed reliance on decision of this

Commission in R.P. No. 4275 of 2007 decided on 11.1.2008 in which it was held as under:

“5. The complainant has submitted in his complaint that after 7 days of

receipt of Rs.3,45,968/-, the complainant had approached the insurance

company (O.P.1) and demanded the balance amount which was declined

and he was asked to approach O.P. 2. He further submitted that since the

entire stock was burnt and the business had come to a standstill and

because of financial crisis and heavy loss of interest, the complainant was

constrained to sign on the discharge voucher, which was in a printed

format. Therefore, he had no option but to file a complaint for the balance

amount. This we feel is an act of coercive bargaining indulged in by the

insurance company. A distressed insured person, who has lost all means

of earning his livelihood in a catastrophic fire, has no other choice but to

accept any amount as an initial payment in the first instance”.

  

10. Facts of aforesaid case are different from the facts of case in hand. In the aforesaid case

printed discharge voucher was signed by the complainant under compelling circumstances and

complainant approached Insurance Co. just after 7 days of receipt of payment whereas in the

present case, complainant has given letter in his own handwriting and notice has been given after

50 days of letter dated 10.5.2010 for final settlement.

 11. Thus, it becomes clear that as complainant has accepted amount in full and final

satisfaction of the claim, complaint filed by him was not maintainable and learned District Forum

committed error in allowing complaint and learned State Commission rightly allowed appeal and

dismissed complaint. We do not find any illegality, irregularity or jurisdictional error in

impugned order and revision petition is liable to be dismissed at admission stage with no order as

to costs.

 ……………Sd/-………………

( K.S. CHAUDHARI, J) PRESIDING MEMBER

 

 ..……………Sd/-………………

( DR. B.C. GUPTA ) MEMBER

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