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REVISION PETITION NO.3952 of 2008



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REVISION PETITION NO.3952 of 2008

(From the Order dated 05.05.2008 in FA No. 550/2004 of State Consumer Disputes Redressal Commission, Delhi)

 

1. New India Assurance Co. Ltd., RO-1, 5th Floor, Jeewan Bharati Building, Connaught Circus, Delhi-110001



2. Sh. S.K. Mahajan, Branch Manager – New India Assurance Co. Ltd., 415, Badarpur, Main Mathura Road, New Delhi – 110044. 

3. Sh. Parminder Singh Sachdeva, Development Officer – New India Assurance Co. Ltd., 415, Badarpur, Main Mathura Road, New Delhi – 110044.

... Petitioners.

  Vs.

Sh. Deepak Anand, Sole Prop.: M/s Jennex International Exports, F-75, Rajouri Garden, New Delhi – 110027.
                                       … Respondents.


 

BEFORE: -

 

HON’BLE MR. JUSTICE D.K. JAIN, PRESIDENT


HON’BLE MRS. VINEETA RAI, MEMBER 

 

For the Petitioners        :        Mr. Pradeep Gaur, Advocate Mr. Aabhas, Advocate. 

For the Respondent    :         Mr. Iqbal Singh, Advocate. 

O R D E R

(Pronounced on  18th    day of July, 2014)

D.K. JAIN, J. PRESIDENT 

          This Revision Petition, by the Insurance Company, under Section 21(b) of the Consumer Protection Act, 1986 is directed against order dated 05.05.2008 passed by the Delhi State Consumer Disputes Redressal Commission (for short “the State Commission”) in FA No. 550/2004, whereby, order dated 28.06.2004, passed by the District Consumer Disputes Redressal Forum (Central) (for short “the District Forum”), dismissing the complaint, has been overturned. 

2.      Briefly stated, the material facts leading to the present Revision Petition are as under:-

          The Respondent (Complainant) had obtained from the Appellant a Marine Insurance Policy for a sum of US $7435/-.  It was an open policy covering exports of slates, granites and other types of stones from India. The Respondent dispatched 29 number of wooden pallets, containing slate tiles (16” X 16” and 12” x 12”) for export to the United States. While transporting the said consignment to the port for shipment, the trailer met with a road accident. The material was completely damaged and was rendered unfit for export. The Respondent claims to have suffered a loss of `2,59,000/-. The Appellant was duly informed about the accident with a request for appointment of a Surveyor, which was done. 

3.      The Surveyor assessed the loss at `1,47,707/-, albeit subject to Appellant’s acceptance of liabilities and policy terms and conditions. The Surveyor appended a note to his report to the effect that “As per description of packing mentioned in the policy, the contents have to be firstly packed into corrugated boxes, crates but the same was found packed into crates only not in corrugated boxes and hence the matter is subjected to the underwriters consideration.” Taking into consideration the said note, the Appellant repudiated the claim against the said policy.    

4.      Being aggrieved, alleging deficiency in service on the part of the Appellant in not honouring its claim, the Respondent filed complaint before the District Forum, inter-alia, praying for a direction to the Appellant to pay a sum of `3,70,000/- towards value of the goods, compensation for mental agony and harassment and cost of litigation.

5.      The Appellant contested the complaint, on the ground that the Respondent had violated the terms and conditions of the Policy, as the slates were not packed in the manner specified in the Marine Insurance Certificate. Instead of first packing the slates in corrugated boxes, crates and then in containers, these had been directly packed in wooden pallets. It was pleaded that on account the said fundamental breach of condition in the cover note, the Appellant was justified in repudiating the claim.  Accepting the stand of the Appellant, the District Forum came to the conclusion that there was no deficiency in service or unfair trade practice on the part of the Appellant. The complaint was dismissed accordingly.

6.      Being dis-satisfied, the Respondent preferred Appeal to the State Commission. Taking into consideration the pleadings and the documents on record, including the Marine Insurance Certificate and Marine Declaration Form, the State Commission held that the claim had been wrongly repudiated.  The State Commission observed thus:-

“           We have perused the insurance certificate. There is no specific mention that the goods of the kind one in question have to be first packed in corrugated box before it is packed in crates and put in containers. It does not necessarily mean that first corrugated boxes and then crates should be used. It was only observation of the surveyor who was appointed to assess the loss that the consignment should have been packed in corrugated box and then in crates.

 

We do not perceive any reason as to what was negligence on the part of the appellant in making such packing. The damage was caused due to the accident and not due to some weather condition that could have been avoided by particular mode of packing. There is no such observation by the surveyor that had the goods been packed firstly in corrugated boxes then in crates and thereafter in container, the damage would not have been there, even if the accident had occurred as has occurred in this case.”


7.      The State Commission allowed the Appeal. The Appellant was directed to pay a sum of `1,47,707/-, as assessed by the Surveyor besides `25,000/- as lump sum compensation for mental agony suffered by the Respondent including costs. Hence, the present Revision Petition.

8.      We have heard Ld. Counsel for the parties. The short   question for consideration is whether there was any fundamental breach of the terms of policy covering the consignment, absolving the Appellant from their liability under the policy. ?

9.      It is trite that policy of insurance is a contract between the insured and the insurer.  The rights and obligations under the policy are governed by the terms of the said contract, which are binding upon the parties.  Non-observance of the terms of the policy can vitiate the policy and may absolve the Insurance Company of its liability to indemnity the loss.

10.    In Suraj Mal Ram Niwas Oil Mills Pvt. Ltd. Vs. United India Insurance Company Limited & Anr. - (2010) 10 SCC 567, it has been held by the Supreme Court that the terms  of  a contract of

 

 

 


 

insurance have to be strictly construed and no exception can be made on the ground of equity.  The court opined thus:-

 

“26.   Thus, it needs little emphasis that in construing the terms of a 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.”


 

11.    Having examined the present case on the touchstone of the aforenoted principles, we are of opinion that no fault can be found with the stand of the Appellant and the claim of the Respondent must fail on the ground that there was a fundamental breach of the packing instructions noted on the Insurance Certificate.  The said instructions read as follows:-

          “Srl Packaging Description   Commodity  Description

                        Corrugated Boxes, Crates      Slates, Granites And

          Then In Containers                 Other Types Of

    Stones”

                                                         

 

9.      It is manifest from the afore-extracted packing description that the slates had to be first packed in corrugated boxes; crates and “then” in containers. The packing instructions are clear and



unambiguous. The Appellant was bound to comply with the same and pack the consignment strictly as per the description/instructions. We have no hesitation in holding that the 

Respondent violated a fundamental condition in the Insurance Certificate and, therefore, the Appellant was justified in repudiating the claim under the policy.  We are unable to subscribe to the observations of the State Commission that since the damage was caused due to the accident and not due to some weather conditions, the mode of packing could not have avoided the damage.  Suffice it to say that the necessity of packing in a particular manner depends on host of factors, like the nature of the product, mode of transportation, place of destination etc; and  is to be decided by the parties to the contract and not by the Courts. Therefore, in the instant case, it cannot be held that there was any kind of deficiency in service or unfair trade practice on the part of the Appellant in repudiating the claim of the Respondent. 

10.    For the aforegoing reasons, the impugned order cannot be sustained. Accordingly, we allow the Revision Petition and set aside the impugned order with no order as to costs. It will be open to the Appellant to withdraw the amount deposited with this Commission in terms of order dated 07.11.2008.                                 

…………………..   (D.K. JAIN, J.)

PRESIDENT

 

. . . . . . . . . . . . . .


(VINEETA RAI)

MEMBER


Ar/Yd

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION Nos. 690-691 of 2011

(From the order dated 07.09.2009 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in Appeal nos. 937 and 1316 of 2008)

With IA no. 5589 of 2013 (Publication)

Mr Anil Mittal Building No. B – 1, Flat no. 205 Citizen Paradise Complex Juchandra Village Naigaon (East), Vasai Taluka Thane District Maharashtra

Petitioner

  Versus


1.    Skoda Auto India Pvt. Ltd. A-1/1 Shendra Five Star Industrial Area MIDC Aurangabad– 431201 Maharashtra

2.     Nummer Eins Motors (India) Pvt. Ltd. Kalachowke, Mumbai 400033

Respondents

 BEFORE:

 HON’BLE MR JUSTICE AJIT BHARIHOKE   PRESIDING MEMBER

 HON’BLE MRS REKHA GUPTA  MEMBER

For the Petitioner: Mr Arvind Gupta, Advocate Along with Ms Savita Singh, Advocate 

For the Respondent no. 1: Mr Vipin Singhania, Advocate

For the Respondent no. 2                             NEMO

 Pronounced on 18th July  2014


ORDER 

REKHA GUPTA

        Revision petition nos. 690-691 of 2011 has been filed against the judgment and order dated 07.09.2000 passed by the Maharashtra State Consumer DisputesRedressal Commission, Mumbai (‘the State Commission’) in First Appeal nos. 937 & 1316 of 2008.

2.     The brief facts of the case as per the petitioner/ complainant are as under:

3.     The petitioner has purchased a car SKODA Octavia Ambient through respondent no. 2 – Nummer Eins Motors (India) Pvt. Ltd., for a total amount of Rs.11,32,666/- which includes, the cost of insurance, registration on 06.02.2003, the said vehicle bearing Chassis no. TMBCE K1U12 A0090 86. Engine no. AEG 634829 and Registration no. MH 04 – BN 3863. The said vehicle was taken against car finance from Bank.

4.     The said car was purchased out of loan Rs.10,15,005/- taken from the HDFC bank. After delivery of the car, the petitioner found several complaints including some strange noise from the rear side of the car and a very low pick up. The petitioner brought the same to the notice of respondent no. 2.

5.     Respondent no. 2 rectified the minor problems and also stated that they have rectified the noise coming from the rear side of the car, low pick up and other complaints and the same was delivered back. After delivering the car, the petitioner found that the complaint of the noise was still subsisting. He brought the same to the notice of the dealer, i.e. respondent no. 2 and the car was delivered to the dealer’s workshop on few occasions again. The petitioner states that the dealer could not rectify the said complaint. Such nature of complaint can arise if there is any defect or leakage in the combustion chamber.

6.     In the month of September 2003, while the said complaint had yet to be attended, in less than six months of purchase of the car the Air Conditioner started malfunctioning. In response to the said letter, the company admitted the problems and informed the petitioner that they are taking up the matter with the dealer.

7.     The petitioner stated that since taking of the delivery, in February 2003 itself, the petitioner was not satisfied with the performance of the car as the vehicle was giving one or the other problem and he could not enjoy the use of the said vehicle. Out of seven months upto August 2003, at least three months the car was in the workshop of the dealer, i.e., respondent no. 2.

8.     The petitioner therefore, humbly prayed for the following amongst other relief:

(a)        Direct the respondent to replace the car by delivering a new car free of cost or to refund the money being sum of Rs.10,47,516/- as also the cost of registration and insurance cost with interest @ 15% from the date of purchase till realisation;

(b)        Direct the respondent to compensate the petitioner for the cost of conveyance, to the tune of Rs.75,347/- as also Rs.5,00,000/- towards mental torture and physical hardship and interest being paid on loan for the purchase;

(c)         Direct the respondent to jointly and severally pay Rs.25,000/- towards the legal notice fee and cost of these proceedings other expenses incurred with interest from the date of filing of this complaint till realisation;

(d)        Such other relief or grants as the Hon’ble Forum may deem fit and proper in the circumstances of the matter.

9.     In their written statement the respondent no.1/ OP no. 1 have stated that the present complaint was not maintainable within the meaning and provisions of the Consumer Protection Act, 1986 and Rules made thereunder as there was no negligence and/ or deficiency in service and/ or unfair trade practice on the part of the respondents. The respondents duly discharged their contractual obligations wherever existed, under the warranty as per terms and conditions. Petitioner failed and neglected to place any material on record in support of his case for any alleged deficiency, negligence and/ or unfair practices and claiming replacement of vehicle and/ or compensation.

10.    The vehicle in question was duly attended during the warranty period and the demanded repairs were carried out to the entire satisfaction of the petitioner. Technically         qualified and experienced staff of the respondent no. 2 inspected the vehicle and at no time did they find any manufacturing defect in the said sophisticated vehicle. The complaint is therefore, liable to be dismissed ab initio.

11.    It was true that the petitioner purchased a ‘Skoda Octavia’ car from respondent no. 2 on 06.02.2003 as per invoice dated 01.02.2003. Being a sophisticated vehicle, the petitioner should have taken care to first study all technical aspects of this modern car and also ensure that the same was not driven by any driver who was not possessed with thorough knowledge of its technical aspects. Despite this, with a view to establish a cordial customer relation of the petitioner, the respondent no. 2 ensured that all requests of the petitioner were complied with immediately though they were not duty bound to do so in law. Rests of the averments being false for the aforesaid reasons are hereby denied.

12.    Every time when the petitioner reported any complaint relating to the said vehicle, whether genuine or imaginary, the respondent no. 2 took every such complaint seriously and attended to the same with utmost urgency to the entire satisfaction of the petitioner. What was shocking was that despite signing satisfaction note of each such repair, the petitioner took a somersault every time for the reasons best known to him. If any genuine complaint/ defect existed in the said vehicle, it was open for the petitioner to get the vehicle tested in a recognised laboratory and furnish a genuine test report to enable the respondents to initiate appropriate actions thereon. Unfortunately, however, the alleged complaint of the petitioner were imaginary in nature for which there can be no solution in reality.

13.    District Consumer Disputes Redressal Forum, Central Mumbai District (‘the District Forum’) vide its order dated 29.09.2007 allowed the complaint and gave the following orders:

(i)                  The opponent shall pay to the complainant the cost/ value of the car Rs.11,32,266/- as on dated 06.02.2003, along with 9% interest up to the full payment of car.

(ii)                 Opponent pay to the complainant Rs.10,000/- for physical and mental harassment.

(iii)                Opponent shall pay to the complainant Rs.3,000/- cost of the case.

(iv)               Opponent no. 1 and 2 are collectively/ jointly responsible for the full payment.

14.    Aggrieved and dissatisfied with the order of the District Forum both the respondents and also the petitioner filed appeals before the State Commission. The State Commission vide order dated 07.09.2009 while dismissing the First Appeal no. 1316 of 2008 of the petitioner and allowed the appeal of the respondent and dismissed the complaint. Hence, the present revision petition.

15.    The main grounds for the revision petition are that:

         The State Commission has wrongly considered the evidence on record and has committed a grave illegality and irregularity by giving findings to that effect and thus making liable the order passed by the forum to be assailed in this revision petition.

         The State Commission has failed to exercise the jurisdiction vested in it in as much as it has held that the petitioner is liable to get the entire amount refunded with interest.

         The State Commission failed to take into consideration the evidence brought on record by the petitioner.

         The State Commission has failed to apply his mind to the present case and has committed illegality in following the principles of law to the facts of the present case and or the same is contrary to the facts of the present case and hence arrived at a totally wrong and arbitrary decision.

16.    Along with the present revision petition, the petitioner has filed an application for condonation of delay. However, in the entire application for condonation of delay, the number of days of delay have not been mentioned. The reasons given in the application for condonation of delay are that:

         The impugned order was passed by the State Commission on 07.09.2009 and was delivered to the counsel for the petitioner on 05.10.2009. The counsel for the petitioner handed over the same to his clerk for delivering the same to the petitioner. The clerk misplaced the order and did not inform the counsel nor to the petitioner.

         Thereafter, in the month of July, the petitioner called up his counsel for the certified copy of the order. On inquiry it was discovered that the order copy was obtained in the month of October 2009 only but the clerk misplaced it. Hence, immediately they applied for the duplicate copy.

         The duplicate of the order was delivered to the counsel for the petitioner on 21.08.2010 and was sent to the petitioner with an opinion to file revision petition against the order in the month of October 2010.

         Due to Diwali vacation, the petitioner could pay any heed to the case till November. Thereafter, the case papers were sent by the dealing counsel for the necessary action. The dealing counsel contacted the advocate in Delhi and sent the full file with an instruction to draft the revision petition in the month of December 2010.

         After examining the case papers the Advocate in Delhi asked for further documents and translation of the order of the District Forum which took some time.

         Thereafter the revision petition was immediately drafted and sent for approval to the petitioner and the dealing Advocate and the same was returned back duly approved to the Delhi Advocate in the second week of February 2011 and in the process the delay caused.

17.    We have heard the learned counsel for the petitioner as well as respondent no.1 and have also gone through the records of the case carefully.

18.    As per the office report, if the delay is calculated from the date of the order, i.e., 07.09.2009, then there is a delay of 449 days. Calculated from the date when the counsel received the copy of the order on 05.10.2009, there is a delay of 421 days. While it is stated in the application for condonation of delay that the counsel for the petitioner handed over the same (order) to the clerk for delivering the same to the petitioner and the clerk misplaced the order and did not inform the counsel or the petitioner, there is no affidavit by the clerk to this effect. Further, the petitioner has nowhere mentioned that when and how he got the knowledge regarding disposal of the case. He merely mentions that he called up the counsel somewhere in the month of July and asked for a certified copy of the order. In the entire application for condonation of delay no reasons have been given to explain the day to day delay of 421 days.

19.      At the same time, it is also well settled that “sufficient cause” with regard to condonation of delay in each case, is a question of fact.

20.       The Apex Court In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has laid down:

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”.

21.    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]”.



22.    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.”

23.    Accordingly, we find that there is no ‘sufficient cause’ to condone the in ordinate delay of 421 days, from the date the order was received  by the Petitioner’s counsel, 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 dismissed. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.5,000/- (Rupees five thousand only).

24.    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.

25.    List on 22nd August 2014 for compliance.

Sd/-


[ Ajit Bharihoke, J.]

Sd/-


[Rekha Gupta]

Satish




NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO.2535 OF 2014
(From the order dated 26-02-2014 in First Appeal No.1431 of 2008 of Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad)

With

I.A.No.4031 OF 2014
(For stay)
Life Insurance Corporation of India H-39, 1st Floor, New Asiatic Building Connaught Place New Delhi – 110001                                                                      …..Petitioner

Versus


Sh. Sidhartha Madhavrao Dhole 14, Nyayaleen Housing Society N-8, CIDCO, Aurangabad Maharashtra

                                                                            …..Respondent

 BEFORE:

HON’BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 

For the petitioner                   :         Mr. U.C. Mittal, Advocate



 

21-07-2014

ORDER

JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

1.      The respondent/complainant obtained Jeevan Mitra (Triple Cover Endowment Plan) policy for a sum of Rs.1,50,000/- from the petitioner-Life Insurance Corporation of India, for the period from 2005 to 2006 vide policy No.984077036. During the subsistence of the policy the complainant had a heart attack and was admitted in Government Super Speciality Hospital, Nagpur, where his angiography, followed by angioplasty was performed. After discharge from the hospital he submitted a claim with the petitioner seeking reimbursement of the medical expenses amounting to Rs.1,50,000/-. Vide letter dated 12-03-2007, the petitioner informed the complainant that he had not been granted critical illness rider benefit and premium for the critical illness had not been charged from him and, therefore, he was not entitled to any claim.

2.      Alleging deficiency in providing service on the part of the petitioner-LIC the complainant filed a complaint before Aurangabad District Consumer Disputes Redressal Forum (for short, the District Forum), seeking a direction for payment of the aforesaid amount of Rs.1,50,000/- along with interest at the rate of 18% per annum, besides compensation amounting to Rs.25,000/-.

3.      The complaint was resisted by the petitioner-LIC on the very same ground on which the claim was repudiated. It was also stated that as per Rules critical illness rider was allowed only up to maturity of 60 years, whereas as per the proposal form of the complainant, he was to turn 62 years on the date of maturity of the policy.

4.      The District Forum vide its order dated 24-10-2008 directed the petitioner to pay a sum of Rs.1,50,000/- to the complainant along with interest at the rate of 9% p.a. on the said amount from 23-01-2008.

          The petitioner was also directed to pay Rs.2,000/- towards the cost of litigation.

5.      Being aggrieved from the order of the District Forum, the petitioner preferred an appeal before the Maharashtra State Consumer Disputes Redressal Commission (for short, the State Commission).

          Vide order dated 26-02-2014, the State Commission dismissed the appeal filed by LIC. Being still unsatisfied the petitioner is before us by way of this revision petition.

6.      Though it is an admitted case of the parties that in the proposal form submitted by him the complainant had inter alia claimed the benefit of critical illness rider, the learned counsel for the petitioner vehemently submits that the said rider was not accepted by the petitioner and consequently the benefit of insurance against critical illness was not available to the complainant. We have perused the insurance policy issued by the petitioner to the complainant which is available on page 40 to 45 of our paper-book. Nowhere does the policy exclude the critical illness rider which the complainant had sought in the proposal form. If the policy/Rules of the petitioner did not permit coverage against critical illness, on account of the age of the complainant, either it should have altogether rejected the proposal or it should have, while issuing the policy, expressly excluded the critical illness benefit. That having not been done the irresistible inference is that the proposal of the complainant was accepted by the LIC in toto, including the benefit of insurance cover against the critical illness.

7.      The learned counsel for the petitioner submits that the petitioner-LIC did not accept the premium in support of cover against critical illness, from the complainant. We, however, notice that a concurrent finding of the fact has been returned by the District Forum as well as by the State Commission that the petitioner-LIC had charged extra premium amounting to Rs.564.65/- from the complainant, towards the premium for coverage against the critical illness. Sitting in revision petition, where the scope of the power of this Commission is limited to examine the jurisdiction of the fora below and the legality of the orders passed by them, we cannot interfere with the finding of the fact returned by the said fora unless the said finding appears to be perverse, in the sense that no reasonable person, acting on the basis of the material available to him, could have arrived at such a finding. However, the petitioner has failed to convince us that the finding returned by the District Forum and the State Commission in this regard was without any basis and any material available to them. On the other hand, the computer printout which the learned counsel for the petitioner has made available to us during the course of hearing clearly shows that the premium recovered from the complainant included a sum of Rs.564.05/- (wrongly typed as 504.65/- in the order of the fora below) which obviously was for coverage against critical illness. Therefore, the finding recorded by the District Forum and the State Commission cannot be said to perverse in nature. The learned counsel submits that there is a mistake in the computer printout which he has made available to us. However, the facts and circumstances of the case do not justify his contention. In case, the insurance company, by mistake had accepted the proposal in toto including the coverage against critical illness on discovering the mistake it ought to have refunded the premium charged towards coverage of critical illness with clear information to the complainant that he had not been granted any coverage against such illness. Had that been done, the complainant could have opted for some other policy if not of LIC, of some other insurance company, instead of accepting the policy which did not cover the critical illness. That having not been done, the insurance company cannot be allowed to deny the benefit of the policy after the complainant had suffered critical illness and had incurred expenditure in undergoing angiography and angioplasty.

          For the reasons stated hereinabove the revision petition is hereby dismissed, with costs assessed at Rs.10,000/-.  

..…………………………..

(V.K. JAIN, J.)
PRESIDING MEMBER

 

 



……………………………..
(DR. B.C. GUPTA)
MEMBER

rk.4


 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

FIRST APPEAL NO.706 OF 2007
(From the order dated 26-10-2007 in CC No.88 of 2005 of Orissa State Consumer Disputes Redressal Commission at Cuttack)

 

1.      Ortel Communications Ltd. Registered Office at B-7/122A Safdarjung Enclave, New Delhi And Corporate Office at C-1 Chandrasekharpur, Bhubaneswar Represented through its Sr. Manager (Legal) 



2.      Manager, Commercial Ortel Communications Ltd. 5th Floor, Bharatia Tower Badambadi Cuttack – 12

                                                                       …..Appellants

Versus

Sudatta Jeevan D/o Prof. J.J. Malik At – SO Qr. No.1, SCB Medical College Campus P.S. Mangalabag, Cuttack – 7 Town & District – Cuttack



                                                        …..Respondent

 

BEFORE:

 

HON’BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER

 

For the appellants       :         Ms. Atishree Sood, Advocate



For the respondent      :         NEMO

 

PRONOUNCED ON     , JULY 2014

 

ORDER

JUSTICE V.K. JAIN, PRESIDING MEMBER

1.      The complainant, a student of Electronics & Telecommunication Engineering obtained an internet connection from the petitioner, which was activated on 01-10-2005. At about 2:00 PM on 09-10-2005, the modem which the petitioner had supplied to the complainant, exploded, as a result of which the entire computer unit including the UPS, cable LAN and the modem got burnt. The case of the complainant is that at the time the explosion took place the computer system was not in operation and the power had been switched off. On a written complaint being lodged by the complainant a technical team of the petitioner inspected the site of explosion and noticed that there was no damage to any electrical appliance such as refrigerator, air conditioner, etc.. Based upon the report of its technical team the petitioner informed the complainant that the explosion was not on account of any power leakage in the cable network. Being aggrieved from the stand taken by the petitioner the complainant approached the Orissa State Consumer Disputes Redressal Commission (for short, the State Commission) seeking the following reliefs:

a)      For damage of computer unit: Rs.29,800/- such as CPU, UPS, Monitor, etc..

b)      For cost of Modem: Rs.1,750/-.

c)      For non use of internet connection (home smart):   Rs.2,410/-

d)      For loss of valuable information stored which cannot be recovered: Rs.3,00,000/-

e)      For mental agony and loss of future Rs.5,50,000/-

f)       For treat to life: Rs.11,50,000/-

g)      For litigation Rs.10,000/-

h)      For conveyance loss of time, Xerox, telephone and misc.expenses: Rs.6,040/-.

2.      The complaint was resisted by the appellants on the ground that no power/electrical current passes through the internet cable and there was no sign of high current flowing in the said cable, which otherwise was highly insulated and permitted only the cable signals to pass through it. It was also pointed out that there was no sign of any burn/damage to the cable connectivity port which had been supplied to the complainant. On the request of the complainant the State Commission directed one Ashish Mohanty, Computer Engineer to inspect the site and submit his report.    Mr. Mohanty submitted a report, stating therein that the entire computer unit, viz., UPS, LAN cable and cable modem as well as mother board had been burnt and the system had got fully damaged.

3.      The complainant engaged the services of one Mr. Saroj Kumar Nayak, Hardware Engineer who claims to have visited the residence of the complainant on 10-10-2005 and inspected the damaged computer unit. The report of Mr. Nayak inter alia reads as under:

A.     From the Cesco’s line current flows connecting to metre and main switch of a consumer through bridges wherefrom the current is supplied to every room of the house and in case of flow of high voltage beyond the capacity the fuse in bridges are bound to born and thereby the supply line to the whole of the house remains disconnected. Even in case of passage of high voltage, the other electrical goods of the house i.e. fan, refrigerator, bulbs, etc., would be damaged which is not a fact in the present case.


B.      The Computer system with modem etc., were kept in the bed room and current is supplied to UPS through which current flows to different parts of Computer System. In the present case the explosion took place during lunch hour at about 2 PM when the Compute system was not in service and the power was switched off.

                   In order to explain the current supply to UPS and then to CPU through SMPS and the different connections to different parts have been broadly shown in a diagram.



C.      The UPS controls the fluctuation of current and saves the entire computer system from damage. In case a high voltage beyond the bearable capacity, the FUSE of UPS burns first so that the current supply to other parts break.

D.      The CPU is the main part of the Computer where current flows to SMPS (Switch Mode Power Supply) through UPS. The SMPS saves the Mother Board and other components from passage of high voltage. In the instance case the SMPS is intact and thus there is no chance of believing that high voltage has passed through customers switch board and or UPS    .

E.      The internal photograph of a model intact modem would show that in case of passage of current through RF Port, the RF 45 Port would burn and cause destruction within a few seconds but the RF Port would take much time to burn and possibly by the time the other parts get destroyed, there would be break of power for which the RF Port would not burn easily as happened in the present case.

F.      The digital photograph of the modem in question supplied by the opposite parties would show the burn mark of RJ 45. RJ 45 – Lan cable connects the lan port of CPU which got burn/damaged due to heavy power flow through it.

G.      The opposite parties have submitted a misleading statement that power stoppers have been used which restrict power flow to the customer’s computer or TV set. It may lead to a conclusion that if power stoppers fail or not used, then the passage of current through cable lan cannot be ruled out.

                   In the instant case this has happened due to negligence and service fault of the opposite parties.


H.      There is no earthing/wiring defect in the house of the petitioner and had that been so, the customer would have faced the problems of other electronics/electrical goods.”

 

4.      The petitioner company submitted an affidavit of its Executive Engineer Shri Smruti Ranjan Badu who had inspected the site on            10-10-2005. In his affidavit, Mr. Badu inter alia stated as under:



          “1……………

          2.      That, I had attended the complaint in question on dt.10-10-2005      along with one of my colleague engineer Sri Samaresh Pati.



3.      That, there was no sign of high current flow through the cable as there was no burn marks on the cable and the centre conductor of the cable supplied by us.

4.      That, on inspection of the cable modem only the LAN port/RJ 45 port was found to be burnt and the RF port where our cable is connected was found to be OK. The LAN port has been burnt possibly because of back flow of current from customer’s UPS to modem and CPU as both are connected to UPS. This might have occurred due to problems of earthing or wiring at the customer’s premises as the building infrastructure is an old one and not maintained properly.

5.      That, the cable TV connection and the other internet connections provided from the same amplifier were found to be OK for which it can be inferred that there was no such current flow in the cable. No current even flows at any point of time through the cable and in view of our using power stoppers there is no chance of either current flowing to the customers equipment of back flowing from customers equipments to the cable line.”

 

5.      The State Commission vide impugned order dated 26-10-2007, directed the petitioner to pay a consolidated sum of Rs.1,00,000/- to the complainant towards price of the computer system, compensation for mental agony and cost of litigation. Being aggrieved from the order of the State Commission, the petitioner is before us by way of this revision petition.


6.      We have heard the learned counsel for the petitioner. Since no one appeared for the respondent, we did not have the benefit of hearing her or her counsel.

7.      A conjoint perusal of the diagram of the modem submitted by the petitioner and the diagram submitted by the complainant alongwith her rejoinder before the State Commission would show that there were four ports in the modem which the petitioner had provided to the complainant. The top port called RF Cable Connector connected the modem to the incoming signal from the petitioner-company via the cable splitter; the second port with DC power in put jack connected the modem to the modem power adaptor. The third port known as USB serial port connected the modem to the USB port of the computer, whereas the fourth/last port known as RJ-45 Ethernet port connected the modem to the Ethernet port on the computer and IC card. Admittedly, a UPS had also been connected by the complainant to her computer system. Admittedly, the UPS was receiving AC electricity supply from the electricity main and the voltage of the power supply was 220. The function of the adaptor (of the modem) which was connected to the UPS was to convert AC 220 V supply into DC 12 V supply, thereby ensuring that the modem receive DC 12 V and not AC 220 V supply of electricity. There was an electricity wire which connected the UPS to the CPU of the computer system and provided uninterrupted power supply of 220 V to the CPU. It is also an admitted case that a LAN cable connected RJ 45 port of the CPU with the RJ 45 port of the modem which the petitioner had supplied to the complainant.


8.      It is an undisputed case that the internet signals were received by the modem through RF cable connector via a cable splitter. Admittedly, the RF cable connector which was the first port on the modem was not found burnt or damaged in any manner, after the explosion had taken place. On the other hand RJ 45 port of the modem and that of the CPU were found wholly burnt.

9.      The case of the complainant has been that since the appellants/opposite parties had provided the internet connection through electric pole of CISCO and did not have its own cable pole, the cable of the appellants would have come into contact with high flow electricity on the electric pole and the said high electric voltage would have got transmitted to the computer system of the complainant through the modem provided by the appellants. In our view, the electric current could not have got transmitted to the computer unit of the complainant in the aforesaid manner. It is an admitted case that RF port of the UPS, through which internet signals were received by the modem, was found intact after the explosion. Neither it had burnt nor had it got damaged. Had the electric current passed from the electric pole to the RF port through the internet cable wire as is claimed by the complainant, the RF port would have got burnt or fully damaged. Though the case of the complainant is that the RF port is a stronger point on the modem and would take much more time as compared to the port RJ 45 to burn, there is absolutely no material on record which would show that RF port was a stronger port as compared to RJ 45 port. Even if it is presumed for the sake of argument that RJ 45 was a rather weaker port of the modem, some damage would certainly have been caused to RF port when the RJ 45 port had got wholly burnt on account of the passage of electricity through the said port. Moreover, not only the RF port remained wholly undamaged, even the internet cable which connected the device on the pole to the modem was also not found burnt. The case of the appellants is that in fact electric connection cannot pass through the said internet cable. The appellants have placed on record a report dated 03-11-2004 from the Standard Testing Laboratory, Government of Orissa which clearly shows that the internet cable was an insulated cable. The laboratory on testing found that neither 230 V AC current or even 63 V AC current could pass through the said cable. The aforesaid report totally belies the case set up by the complainant and clearly shows that the electric current could not have reached the modem through the internet cable providing internet signals to the modem through its RF port. We see absolutely no reason to give preference to the private opinion of Shri Smruti Ranjan Badu over the test certificate of the Standard Testing Laboratory, which was based upon the actual test carried out by the said laboratory on the internet cable, which is connected to the RF port of the modem. Yet another circumstance which rules out flow of high current through the internet cable is that had there been any such flow that would have affected not only the modem of the complainant but also the modem of all the customers who are being served through that particular amplifier and would have damaged the appliances as well as the computer systems of all the subscribers who were getting internet signals through that amplifier.

10.    The officials of the appellants namely Shri Smruti Ranjan Badu, Executive Engineer and Mr. Samaresh Pati, Executive Engineering, when they visited the spot noticed that there was no sign of high current flowing through the cable nor was there any burn mark on the cable and the conductor. The report also shows that the cable providing signals to the premises of the customer had power stoppers built in it, which restrict the power inflow to the computer and also blocks any kind of back flow of the current from the equipment of the customer to the network of the service provider. In their opinion, there was a possibility of back flow of current from the UPS of the customer to the modem and CPU both of which are connected to the UPS. In their opinion, there was a possibility of electrical earthing or wire problem at the premises of the customer, the building being quite old and not maintained properly.

11.    It appears to us that the incident of explosion occurred due to back flow of the current from the UPS which the complainant had installed for the purpose of providing uninterrupted power supply to her computer system and the said back flow from the UPS entered the CPU which admittedly was connected to the UPS. Such back flow could be due to some malfunctioning or fault in the UPS. The high back flow of current from the UPS may also have reached the RJ 45 port of the modem through the adaptor which was capable of converting AC 220 V current into DC 12 V current but could not have handled a sudden flow of electric current at a much higher voltage. Be that as it may, what is important is that the onus was on the complainant to prove that her computer system got damaged on account of some negligence or deficiency in service provided by the appellants, but the complainant has failed to discharge the said onus placed upon her.

12.    As regards the contention of the complainant that the other gadgets and appliances available in her premises had not got burnt or damaged, we are of the opinion that nothing really turns on it since only those appliance would be affected which receive electric current at a rather high voltage. In case the appliances are switched off and/or were not receiving electric current at a high voltage there can be no question of their getting burnt or damaged.

13.    For the reasons stated herein above, we are unable to uphold the decision rendered by the State Commission. The appeal is, therefore, allowed and the impugned order dated 26-10-2007 passed by the State Commission in Consumer Complaint No.88/05 is hereby set aside.

14.    The amount which the appellants had deposited pursuant to an interim order of this Commission be refunded to the appellants unless it has already paid to the respondent. In case the said amount has already been paid to the respondent in terms of the interim order dated 13-12-2007, the respondent shall deposit the said amount in this Commission, within two weeks of receiving a copy of this order and, thereafter, it shall be released to the appellants. If the respondent fails to deposit the said amount, the appellants shall be entitled to recover the same from her in accordance with law.

  

..…………………………..

(V.K. JAIN, J.) PRESIDING MEMBER

 

……………………………..


(DR. B.C. GUPTA) MEMBER

rk.4


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION  NO. 3124 OF  2013

(Against the order dated 19.03.2013 in First Appeal No. 353/2010 of the State Commission Delhi) WITH IA NO. 5498 OF 2013 (STAY)

Nirmal Arora w/o Shri Surinder Pal Arora r/o K-57, Kirti Nagar New Delhi – 110015

........ Petitioner (s)

  Vs.

Standard Chartered Bank Through its Manager 17, Parliament Street New Delhi – 110001 ......... Respondent (s)


REVISION PETITION  NO. 3125 OF  2013

(Against the order dated 19.03.2013 in First Appeal No. 354/2010 of the State Commission Delhi) WITH IA NO. 5499 OF 2013 (STAY)

 

Surinder Pal Arora w/o Late Shri Banarsi Dass Arora r/o K-57, Kirti Nagar New Delhi – 110015 ........ Petitioner (s)



  Vs.

Standard Chartered Bank Through its Manager 17, Parliament Street New Delhi – 110001 ......... Respondent (s)

 

BEFORE:

 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

 HON’BLE MRS REKHA GUPTA, MEMBER 

For the Petitioner (s)       :         Mr. Surinder Pal Arora, Auth. Rep (in RP No.3124/2013)

For the Petitioner (s)       :         In person

In RP No. 3125/2013

 For the Respondent (s)         :   Mr. Rahul Sharma, Advocate (in both the cases)

PRONOUNCED ON :   21st  JULY, 2014

ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER 

1.         By this order, we propose to dispose the above noted revision petitions involving exactly similar question of law and facts.

2.         Bereft of unnecessary details, facts relevant for the disposal of above noted revision petitions are that the petitioners in the respective petitions filed independent complaints against the respondent opposite party alleging deficiency in service in relation to their respective accounts.  It is the case of the complainants that both of them opened fixed deposit accounts for Rs.40,000/- each with the opposite party and alongwith the fixed deposit, zero balance saving accounts were also opened.  The fixed deposit accounts was opened in the year 1998 and the FDRs were renewed from time to time, for the maturity amount.  The OP, however, on maturity of the last FDR, without any authorisation from the petitioners renewed their respective FDRs for the face value and unilaterally transferred the interest accrued i.e. Rs.9293.24/- on each of FDR in their respective saving bank accounts.  Not only this, thereafter, the OP made quarterly deduction of Rs.750/-, Rs.830/- and Rs.830/- each by making debit entry in the respective accounts of the complainants on the ground that they had failed to maintain the minimum balance of Rs.10,000/- in their saving back accounts.   When the complainants came to know about this, they contacted the OP bank and they were told that since they had failed to maintain minimum balance of Rs.10,000/- each in their respective saving bank accounts, they have been levied with the service charge. The complainants were also told that if they were not satisfied with the above condition, they may close their accounts.  The complainants accordingly closed their accounts and the opposite party after deduction of Rs.830/- as service charges as on January 28 paid the remaining balance in the respective accounts to the petitioners.  This led to the filing of the consumer complaints.

3.         The consumer complaints were resisted by the bank.   According to the respondent bank, they had rightly deducted the service charges from the respective saving account of the petitioners as they had failed to maintain the minimum balance.

4.         The District Forum on consideration of the pleadings of the parties and the evidence on record allowed the respective complaints filed by the petitioners and passed similar directions which reads as thus:


1.       The OP shall refund Rs.9293.24 as interest and deposits to the complainant.

2.       The OP shall pay Rs.15000/- as compensation to the complainant.

3.       The OP shall also pay Rs.10,000/- as litigation expenses.

          In all the OP shall pay Rs.34,293.24/- to the complainant within one month from the issue of this order.

 

5.         During the pendency of the appeals, an offer was made by the respondent bank to pay to the petitioners a sum of Rs.10,792.24/- each.  Taking note of the aforesaid offer, the State Commission modified the order of the District Forum and directed thus:



The appellants shall pay an amount of Rs.10,792.24/- to the respondent complainant towards refund of the accumulated interest amount on FDR alongwith interest @ 3.5% p.a. from 01.01.2005 to 25.05.2006 only if the pay order handed over to the respondent complainant had not been encashed by him and the pay order handed over to the respondent complainant by appellant/OP before the District Forum during the course of proceedings shall be treated as cancelled forthwith.

b)         Keeping in view the facts of the case, the compensation and litigation amount of Rs.25000/- awarded by the District Forum is reduced to Rs.3000/- and accordingly the appellant / OP shall pay an amount of Rs.3000/- to the respondent / complainant towards compensation for mental agony and harassment alongwith litigation cost.

c)         The appeal is disposed off in above terms, copy of the order be sent to the parties free of cost as per law and case.  File be consigned to record room.

d)         FDR if any deposited by the appellant be returned to the appellant as per rules.

6.         The respondent bank has accepted the above noted order, so the order qua the bank has become final.  The petitioners are aggrieved of the reduction of the compensation / litigation cost of Rs.25,000/-each  awarded by the District Forum to Rs.3000/- each.

7.         The petitioner has contended that the order of the State Commission reducing the compensation and litigation amount to a meagre sum of Rs.3000/- is arbitrary.  It is argued that the State Commission while reducing the amount of compensation has failed to appreciate that the petitioners were compelled to file the consumer complaints because of unauthorised transfer of accrued interest on the FDRs to the respective saving account of the petitioners and also the unauthorized debit of the service charges in the respective saving bank accounts on the pretext that petitioners had failed to maintain the minimum balance of Rs.10,000/- in the respective account as per the norms of the bank.  It is further contended that State Commission has failed to appreciate that because of the aforesaid act of the respondent, the petitioners had been forced into a protracted litigation of almost 9 years.  During the said period, the petitioner has suffered expenses for travelling to the respective foras to attend the dates of hearings and also undergone harassment and suffering and that for the aforesaid mental harassment and agony, the compensation of Rs.3000/- is grossly insufficient.

8.         On the contrary, learned counsel for the respondent has argued in support of the impugned order and submitted that the State Commission has rightly reduced the amount of compensation.

9.         On perusal of record, we find merit in the contention of the petitioner.  Undisputedly, the subject saving bank accounts were opened with zero balance by the petitioners in the year 1998.  At that time, there was no rule of charging service charges from the account holder if he fail to maintain minimum balance of Rs.10,000/- in the saving bank account.  Case of the respondent is that in April 2002, the respondent bank introduced the scheme which require the saving bank account holder to maintain minimum balance of Rs.10,000/-failing which the service charges were to be levied.  Respondent has claimed that a general letter in this regard was sent to all the customers.  The respondent, however, has failed to lead any evidence to prove that the change in the rules was intimated to the petitioners.  Therefore, the respondent bank by levying service charges has committed an act amounting to deficiency in service.

10.       From the record it is evident that this litigation started because of unfair and unauthorised act on the part of the respondent opposite party. The consumer complaints were filed in the year 2005. Thus, it is clear that because of the wrong act of the opposite party, the petitioners have been forced to undergo the rigours of a protracted litigation for 9 years before the District Forum, State Commission as also the National Commission.  Obviously, the petitioners must have attended the proceedings before all the three foras and their visit to the foras must have entailed expenses.  Even if the travelling expenses for attending the dates of hearings are taken into account, then also in all likelihood, the petitioners must have spent more than Rs.3000/- for attending the proceedings.  Besides the expenses incurred, the petitioners have also suffered unnecessary harassment and mental agony due to protracted litigation, for which also they should be compensated.  Taking the aforesaid aspects into account, we find that the compensation and litigation expenses awarded by the District Forum is more than reasonable.  The State Commission in exercise of its appellate powers had no jurisdiction to arbitrarily reduce the compensation and litigation expenses to Rs.3000/- without assigning any justified reasons for the same.  That being the case, the order of the State Commission reducing the amount of compensation and litigation expenses cannot be sustained. 

11.       We accordingly allow the revision petitions, set aside the  order of the State Commission and direct the respondent opposite party to pay to the petitioners compensation as well as litigation expenses in terms of the respective orders of the District Forum.  The revision petitions are disposed of accordingly.

………………………………….


(AJIT BHARIHOKE, J) ( PRESIDING MEMBER)

 
………………………………….



(REKHA GUPTA) MEMBER



NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION  NO. 2830  OF  2012

(Against the order dated 31.10.2011 in First Appeal No. 2217/2010 of the State Commission Karnataka, Bangalore)

 

1. K.D.Mandappa s/o Late Annalah                                                               



2.  K.M.Seethamma w/o K.D.Mandappa 

(Both residing at Cherambane Post) Madikeri Taluk, Kodagu District (Karnataka State)

 ........ Petitioner (s)

Vs.


1. Metlife India Insurance Co. Ltd. Regd. Office Brigade Seshamahal 5, Vani Vilas Road, Basavanagudi Bangalore-560004 Karnataka State 

2.  The Manager, Karnataka Bank Cherambane Branch Madikeri Taluk, Kodagu District Karnataka

......... Respondent (s)

 BEFORE:

 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

 HON’BLE MRS REKHA GUPTA, MEMBER      

For the Petitioner (s)            :           Mr.Anand Sanjay M Nuli, Advocate

For the Respondent (s)       :          Nemo



PRONOUNCED ON : 21st  JULY, 2014 

ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

            This revision is directed against the order of the State Commission dated 31.10.2011 whereby the State Commission allowed the appeal of the respondent insurance company against the order of the District Forum Madikeri in Complaint No.77/09, set aside the order and dismissed the complaint.

2.         Briefly put facts relevant for the disposal of this revision petition are that Shri K.D.Mandappa son of the petitioners complainants obtained a Unit Linked Insurance Policy from respondent insurance company  on annual premium of Rs.12000/-.  The sum assured was Rs.2,40,000/-.  During the currency of the insurance policy, K.D.Mandappa died on 31.03.2009 because of kidney failure.  The petitioners being parents of deceased insured submitted the insurance claim but the claim was repudiated by the respondent insurance company on the ground that deceased insured had obtained the insurance policy by concealing the fact that he was suffering from “Diabetes Mellitus”.  Being aggrieved by repudiation of the claim, the petitioner filed the consumer complaint in District Forum Madikeri.

3.         The District Forum after considering the pleadings and evidence produced by the parties allowed the complaint and directed the insurance company to pay a sum of Rs.2,40,000/- together with 100 per cent of the fund value in the unit account to the complainants.  It was also directed that the aforesaid amount shall carry future interest @ 10% per annum from the date of the complaint till realization.

4.         Being aggrieved of the order of the District Forum, the respondent insurance company preferred an appeal.  The State Commission Karnataka on perusal of record particularly the Discharge summary of the deceased insured issued by Vikram Hospital Mysore came to the conclusion that deceased insured had obtained the insurance policy by concealing the material fact regarding his previous ailment i.e. Diabetes Mellitus.  Thus, the State Commission took the view that the repudiation of the claim was justified.  Accordingly, the State Commission allowed the appeal and dismissed the complaint while setting aside the order of the District Forum.

5.         Learned counsel for the petitioner has contended that the impugned order of the State Commission is not sustainable for the reason that the State  Commission has failed to appreciate that there was no concealment of previous ailment on the part of the insured.  It is contended that the State Commission has failed to appreciate that it was only on 25.08.2008, the deceased was admitted with the complaint of stomach ache in Vikram Hospital Mysore when it was found that the deceased was suffering from diabetes and one of his kidney was not properly functioning.  It is further contended that the State Commission has fallen in error in relying upon the discharge summary purported to have been issued by Vikram Hospital Private Limited without there being a proper proof of discharge summary on record.  It is further contended that the insured or his parents were not aware of any previous ailment of the insured. Thus, learned counsel has urged us to allow the revision, set aside the order of the State Commission and restore the order of the District Forum.

6.         On perusal of record we do not find merit in the contention of the petitioners.    In para 4 of the complaint filed before the District Forum, the petitioners took the stand that the deceased insured K.D.Mandappa was admitted at Vikram Hospital Mysore on 25.08.2008 and discharged on 27.08.2008.  Thereafter he was admitted in Vivus Hospital Madikeri for kidney treatment.  In para 6 of the revision petition, petitioners have alleged that deceased insured was admitted in the hospital on 25.08.2008 and there for the first time, it was noticed that he was suffering from diabetes and functioning of one of his kidney is impaired.   From the above allegations in the complaint, it stands established that the deceased insured was admitted inVikram Hospital on 25.08.2008.  The State Commission while deciding the appeal has relied upon the discharge summary issued by Nephrology Department of Vikram Hospital Private Limited where the deceased had admittedly gone for treatment.  In the aforesaid discharge summary, in the coloumn of History, it is recorded:

Patient admitted with the complaints of puffiness of face and dysuria.  Known case of Diabetes Mellitus since 8 years on treatment”.

7.         The aforesaid history obviously must have been given by the patient himself or the person who accompanied him to the hospital.  Therefore, the correctness of the fact recorded in the discharge summary cannot be doubted.  From this document, it is clearly established that the deceased was a known case of diabetes mellitus for the last eight years and was on treatment for the said disease.   On perusal of the application for Life Insurance policy submitted by the deceased insured ( annexture R1), we find that in response to a query whether applicant / insured was suffering from diabetes, the insured had answered in ‘negative’.  Thus, this is clear case of concealment of material information regarding the medical condition of the insured.  We may note that diabetes is a serious disease and it can adversely impact the functioning of vital human organs.  Therefore, in our opinion, the insurance contract was obtained by the insured by concealing the material information which could have impaired the decision of respondent insurance company to accept or reject the insurance proposal.  Thus, the order of the State Commission accepting the appeal and dismissing the complaint cannot be faulted.  (Reference be made to the judgments of the Supreme Court in the matter of P .C.Chacko & Anr. Vs. Chairman, LIC of India (2008) 1 SCC 321 and Satwant Kaur Sandhu Vs. New India Assurance Company (2009) 8 SCC 316).

8.         In view of the discussion above, we are of the opinion that petitioner has not been able to point out any jurisdictional error or material irregularity in the impugned order in exercise ofrevisional jurisdiction of this Commission.  Revision petition is, therefore, dismissed.

…………………………….

(AJIT BHARIHOKE, J)

( PRESIDING MEMBER)

 

…………………………….



(REKHA GUPTA)

MEMBER

Am/


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 




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