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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
K.S. Chaudhari, Presiding Member
New India Assurance Co. Ltd. —Appellant
versus
M/s. Kamboj Ultra Sound & Diagnostic Pvt. Ltd. —Respondent
First Appeal No.741 of 2007
(From the order dated 10.09.2007 in Consumer Complaint No.C-90/99 of the State Consumer Disputes Redressal Commission, Delhi)
Decide on 27.8.2014
Council for the Parties:
For the Appellant :Mr. K.L. Nandwani, Advocate
For the Respondent:Mr. Sanjiv Kumar, Advocate with Mr. Naveen Kamboj, A.R.
IMPORTANT POINT
Insurance Company cannot escape liability after accepting premium from insured.
Headnote:Consumer Protection Act, 1986—Sections 17, 19 and 21—Insurance—Breakdown of Scanning Machine—Repudiation of claim on ground of 100% depreciation—Endorsement has not been filed within time granted by National Commission—Endorsement apparently does not form part of policy issued in favour of respondent—Merely because same policy number has been mentioned in endorsement, it cannot be presumed that it was forming part of policy particularly when at the time of insurance, X-Ray tube had already completed 42470 slices— Appellant was well aware about fact that X-Ray tube had already completed 42470 slices; even then appellant granted insurance policy in favour of respondent for machine—When policy was issued on replacement basis, there was no question of endorsement regarding compensation on depreciation basis based on number of exposures—Respondent was entitled to get benefit of insurance under policy so he paid 30% extra premium on renewal of policy—Rs.50,000/- has been allowed as compensation for mental agony, harassment and cost of litigation—No any illegality in impugned order passed by State Commission allowing interest on refund amount—Appeal dismissed. (Paras 6 to 14)
Result: Appeal dismissed.
K.S. Chaudhari, Presiding Member—This appeal has been filed by the appellant against the order dated 10.09.2007 passed by the learned State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in Consumer Complaint No. C-90/99 – M/s. Kamboj Ultra Sound and Diagnostic Pvt. Ltd. Vs. The New India Assurance Co. Ltd. & Ors. by which, while allowing complaint, OP was directed to refund Rs. 9,15,200/- with 12% p.a. interest and further allowed Rs.50,000/- as compensation for mental agony and cost of litigation.
2. Brief facts of the case are that complainant/respondent had purchased “CT MX 640 whole Body CT Scanner with 8 x 10 multi format camera, voltage stabilizer, lead glass and frame for lead class” from M/s. Wipro G.E. Medical System Ltd., Bangalore, for a sum of Rs.65,75,000/- and installed the aforesaid machine on 25.11.1995 at Jaipur Golden Hospital Plot No. 2, Institutional Area Sector – 3, Rohini, Delhi. M/s. Wipro GE gave warranty for the aforesaid machine w.e.f. 25.11.1995 to 24.11.1996. This machine was insured by OP/appellant for a period of one year from 9.1.1997 to 8.1.1998 on replacement basis. On 25.10.1997, scanning procedure came to standstill at about 5.00 p.m. Engineer from M/s. Wipro GE was informed about stoppage of functioning of machine. M/s. Wipro G.E. quoted cost of Rs.9,15,200/- for replacement of defective tube. Complainant lodged claim with OP. OP appointed surveyor, but OP failed to settle the claim. It was further submitted that OP again approached complainant for renewal of policy on its expiry and complainant paid Rs. 99,823/- towards renewal charges of the aforesaid policy, but even then OP did not issue policy and complainant is entitled to refund of the aforesaid premium. It was further submitted that OP vide letter dated 16.1.1998, informed complainant that OP was not liable to any claim in respect of X-Ray tube, as it had undergone 100% depreciation which was illegal. Alleging deficiency on the part of OP, complainant filed complaint before the learned State Commission and claimed cost of tube, refund of premium and compensation of Rs.50,000/- and cost of litigation. OP resisted complaint and submitted that complaint has not been filed by duly authorised person. It was further submitted that complainant took EEI policy which carries endorsement applicable to all electro medical equipment and as X-Ray tube had already done more than 40,000 exposures, complainant was not entitled to any claim and prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint, as aforesaid.
3. Heard learned Counsel for the parties and perused record.
4. Learned Counsel for the appellant submitted that appellant rightly repudiated claim in the light of endorsement attached to the policy; even then, learned State Commission has committed error in allowing complaint and further allowing interest along with compensation; hence, appeal 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 there was no endorsement attached with the police; hence, appeal be dismissed.
5. Learned State Commission has observed in the order that there was no such endorsement attached with the policy in respect of the X-Ray tube. Learned Counsel for the appellant submitted that as per order dated 6.2.2008 of this Commission, appellant has filed endorsement for calculation of depreciation and as this order has not been challenged, endorsement is to be treated as part of the policy. On the other hand, learned Counsel for the respondent submitted that policy does not contain aforesaid endorsement and it cannot be considered.
6. This Commission vide order dated 6.2.2008 directed appellant to file documents regarding how depreciation has been considered within a period of 4 week from that date. Admittedly, this endorsement has been filed on 16.4
