INSIGHT DIAGNOSTIC AND ONCOLOGICAL RESEARCH INSTITUTE PVT. LTD. vs Divisional Manager, New India Assurance Co. Ltd.

COMPLAINT is partly heard. In that we have heard the submissions on behalf of the complainants by their Advocate on 12th September, 2003.

SINCE, dispute as would noticed is pending since 1993 i.e., for nearly 11 years and as the statute namely Consumer Protection Act, 1986 mandates speedy disposal of such dispute, we proceed to dispose of this complaint on the basis of material available in the proceedings herein such as pleadings, etc. and on hearing the learned Advocates for the O.Ps. The complainant is a Private Limited Company, which has filed this complaint against the O.P.-Insurance Company claiming damages in respect of CT-Scan Machine and allied appliances alleging defects therein and in respect of which insurance coverage was obtained from the Insurance Company. FEW RELEVANT FACTS:

The complainants claimed a sum of Rs. 10 lakhs on that count with interest, etc.

IT is noticed that the complainants purchased the said CT Scan machine from particular agency as an old machine but not made them party in the complaint. The complainants also acquired certain spare parts for the said machine. The complainants obtained the insurance coverage from the O.P. in respect of the said machine for a sum of Rs. 92 lakhs.

THE complainant has stated on 30th July, 1991 and again on 24th October, 1991 there were breakdown in the said machine and it did not function and X-ray print could not had therefrom. It is these circumstances that the claim was lodged for a sum of Rs. 10 lakhs. The complainant has filed the complaint alleging deficiency against the Insurance Company in not settling its claim in respect of which insurance coverage was in force. The Insurance Company-O.P. has filed the written statement opposing and resisting the claim as made in the complaint inter alia contenting, (i) complaint being barred by law of limitation, (ii) complaint not maintainable as consumer dispute.

BESIDES the preliminary points raised as above, the Insurance Company has vehemently denied it being deficient in services as alleged.

THE Insurance Company has made reference to the correspondence which had preceded prior to the institution of the complaint and has stated that the complainants by number of letters was called upon to furnish particulars and certain documents needed for the Insurance Company for the purpose of consideration and settlement of their claim. The letter requesting the complainants to furnish particulars and documents followed by various reminders have been referred to and relied upon by the O.P.-Insurance Company.

Inasmuch as Insurance Company further states that it engaged services of M/s. Shankar Dhawan, Chartered Engineer, Surveyor, Assessor and Valuer as a ''Valuer'' in the matter and the said Surveyor contacted the complainants and called upon it to furnish various particulars.

THE Insurance Company has made reference to such letters being dated 27.5.1992, 18.6.1992, 28.9.1992, 9.11.1992, 23.9.1993, 2.11.1993, etc. Copies of the same have also been made available. It is to be stated by the said correspondence, complainants were called upon to furnish certain particulars as also clarifications to identify the precise cause of the breakdown of the machine but complainants did not respond to the same.

THEN the reference is made to the letter dated 2.11.1993 addressed by the Insurance Company to the complainants repudiating the claim for non-submission of the particulars called upon and treating the claim of the complainants as ''No Claim'' and closed the file. Copy of the said letter is Exhibit-8 to the written statement. There is no rejoinder filed by and on behalf of the complainants. Following points would arise for consideration: (i) Whether complainants prove O.P. being deficient in the matter of rendering services in the settlement of the claim of the complainant herein? (ii) If answer in affirmative what damages the complainants would be entitled? Our findings on the above points: (i) No (ii) Does not arise.

Reasoning: Point No. (i) : Whether complainants prove O.P. being deficient in the matter of rendering services in the settlement of the claim of the complainant herein? The material clearly shows that on receipt of the claim lodged by the complainants, Insurance Company referred the matter to its panel Surveyor Mr. Shankar Dhawan who by his letter dated 27th May, 1992 on behalf of the Insurance Company called upon the complainants to respond to the following queries, which we reproduce as it appears in paragraph 4 of the said letter. "4. The term ''external event'' means damage due only to the following causes: (a) Voltage fluctuation. (b) Faulty operation. (c) Carelessness of Operator (d) Foreign objects hitting or striking the apparatus. In view of the Endorsement No. 537, please state the exact cause of the damage."

Thereafter, as noticed earlier, number of reminders were sent to the complainants for compliance of the said requisition as also for furnishing the necessary particulars, which was not done. It is in these circumstances, O.P.-Insurance Company addressed its letter to the complainants being dated 2nd November, 1993 and since the contents of the said letter are of significance considerably bearing merits of the claim herein that we produce the text of the said letter in verbatim- "Re: EEP Claim No. UR/44/91-92/016 Damage to X-ray tube insert OPTI 151 CT of CAT Scanner Siemens SOMATOR CR on 24.10.1991. Policy No. 44671103 30814. ............................................. This has reference to the above claim. We have requested vide our letter No. 3069 date 28.9.1992 to submit claim Forms and bills along with other claim papers to enable us to proceed in the claim. There is no response from your end so far. Even our Surveyor Mr. Shankar Dhawan had sent you letters on 27.5.1992, 18.6.1992, 9.11.1992 and 20.7.1993 to submit claim documents. Since the claim documents were not received from you, we presume that you are not interested in pursuing the claim further. We are, therefore, treating the claim as ''No claim'' and closing the file."

IT is obvious that the complainants thereafter approached this Commission in filing the complaint.

IT is to be stated that as per terms of the policy, O.P.-Insurance Company is under obligations to settle the claim in accordance with the terms of the policy. The policy in such situation is in par with the contract. There are corresponding obligations caste under the contract upon the insured i.e., complainants herein as well. If one reads the printed terms and conditions of the policy, there are specific indication given for steps those have to be taken by the ensured while lodging the claim. Such terms and conditions clearly provide furnishing of requisites particulars as will be required and demanded by the Insurance Company.

In the matter herein as it is amply demonstrated from the correspondence between the parties, which preceded to filing of the complaint that complainants, despite being repeatedly called upon for compliance with the requisitions and for furnishing the particulars have not done so.

IT is also necessary to make reference to the conduct of the complainants. In a complaint filed there is no reference made to all the relevant correspondence that came to be exchanged between the parties herein prior to filing of the complaint. The nature of correspondence as noticed earlier was material letters that addressed by the Insurance Company and their Surveyor to the complainants calling upon the complainants and repeatedly reminding for furnishing particulars. Pertinently the complainants withheld all these facts and did not mention in the complaint and this will be reflective upon the conduct of the complainants. To constitute deficiency within the meaning of Section 2(1)(g) of Consumer Protection Act, 1986 it is necessary for the party alleging deficiency to establish there being failure on the part of the provider of the services like O.P. herein. In the matter herein as noticed earlier this is not the position. As a matter of fact there is a failure on the part of the complainants to discharge their contractual obligations to furnish requisite particulars to the Insurance Company, which were repeatedly called upon by it from the complainants.

THAT being so, the grievance of the complainants against the Insurance Company-O.P. of deficiency has to be rejected as being not established. We, therefore, hold that the complainants failed to establish charge of deficiency against the Insurance Company-O.P. and Point No. (i) above stands answered accordingly. Point No. (ii) : If answer in affirmative what damages the complainants would be entitled to? Since the complainants failed in Point No. (i) above, point herein would not survive. Hence the complaint requires to be dismissed. ORDER 1. Complaint stands dismissed. 2. Complainants shall pay cost to the O.P. quantified at Rs. 6,000/-. 3. Copies to be furnished to the parties.

Complaint dismissed.