Chandigarh

StateCommission

A/187/2015

Tata AIG General Insurance Co. Ltd, & anr. - Complainant(s)

Versus

Arvinder Brar - Opp.Party(s)

Rajesh K. Sharma

21 Sep 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

First Appeal No.	:	187 of 2015
Date of Institution	:	10.08.2015
Date of Decision		21.09.2015

 

1. TATA AIG General Insurance Company Limited, SCO 232-234, 2^nd Floor, Sector 34-A, Chandigarh through its Manager.
2. TATA AIG General Insurance Company Limited, Peninsula Corporate Park, Piramal Towers, 9^th Floor, Ganpatrao Kadam Marg, Lower Parel, Mumbai – 400013, through its Managing Director.

Both the appellants through its authorized officer Sh. Mohd Azhar Wasi, Head North Zone Claims, TATA AIG General Insurance Company Limited, 2^nd Floor, SCO 232-234, Sector 34-A, Chandigarh.

 ……Appellants/Opposite Parties.

Versus

Arvinder Brar S/o S. Harcharan Singh Brar, resident of H.No.2831, Sector 21-C, Chandigarh.

....Respondent/Complainant.

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:   JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                SMT. PADMA PANDEY, MEMBER.

               

Argued by:Sh. Rajesh K. Sharma, Advocate for the appellants.

                Sh. Gaurav Bhardwaj, Advocate for the respondent.                 

PER DEV RAJ, MEMBER

            This appeal is directed against the order dated 16.06.2015 rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (in short District Forum) vide which, it partly allowed Consumer Complaint No.538 of 2014, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants) as under:-

“12.     Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is partly allowed. The Opposite Parties are directed, jointly and severally, to:-

[a]  Pay Rs.88,089/- to the Complainant, as assessed by the Surveyor as per survey report Annexure  R-5,   along    with interest @9% p.a. from the date of filing of the claim, till realization (minus) the benefit of NCB given to the Complainant i.e. Rs.6,084.26P;

[b]  Pay Rs.15,000/- on account of deficiency in service and causing mental and physical harassment to the    Complainant; 

[c]   Pay Rs.10,000/- towards costs of litigation;

13.     The above said order shall be complied within 30 days of its receipt by the Opposite Parties; thereafter, Opposite Parties shall be liable for an interest @12% per annum on the amount mentioned in sub-para [a] of Para above from the date of filing of the claim, till it is paid. The compensation amount as per sub-para [b] above, shall carry interest @12% per annum from the date of institution of this complaint, till it is paid, apart from costs of litigation of Rs.10,000/-.” 

2.         The facts, in brief, are that the complainant got insured his vehicle bearing Regn. No.CH-01-AR-0307, from Opposite Party No.1, valid from 10.12.2013 to 09.12.2014, vide cover note dated 10.12.2013 (Annexure C-1) after paying a premium of Rs.41,742/-. It was stated that unfortunately, the said vehicle met with an accident on 6.5.2014 as a buffalo came in front of it. It was further stated that Opposite Party No.1 was immediately informed and the vehicle was taken to Pioneer Toyota for repairs. It was further stated that the vehicle of the complainant was repaired and the Surveyor Er. Mohit Sharma duly inspected the vehicle. It was further stated that the Opposite Parties were asked to pay the amount spent on repairs, but they refused to pay the amount and, as such, the amount of Rs.90,101/- was paid by the complainant to the repairer vide invoice dated 15.5.2013 (Annexure C-6). It was further stated that, to the utter shock of the complainant, the Opposite Parties cancelled the Insurance Policy and sent a cheque dated 23.5.2014 for Rs.10,360.72P after deductions for the period the Policy was in force (Annexure C-7). It was further stated that the Complainant did not get the said cheque encashed and the same was still lying with him. It was further stated that the complainant received a letter dated 3.6.2014 from Opposite Party No.1, denying its liability to pay the claim, on the ground that some wrong declaration with regard to the NCB was given by the complainant (Annexure C-9). It was further stated that the complainant visited the office of the Opposite Parties and explained the whole position, but nothing positive could come out. It was further stated that the aforesaid act of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice.

3.         When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking various reliefs.

4.         Opposite Parties, in their written version, while admitting the factual matrix of the case, stated that on receipt of intimation of loss to the vehicle, they deputed a Surveyor to assess the loss as per the terms & conditions of the Policy. It was further stated that the said Surveyor assessed the loss to the tune of Rs.88,089/- vide report (Annexure R-5). It was further stated that the Opposite Parties had requested the confirmation of “No Claim Bonus” earned during the previous year by the complainant from its previous insurer i.e. ICICI Lombard General Insurance Company, who replied that a claim was paid to the complainant (Annexure R-4). It was further stated that as per the IRDA Rules, if any undertaking regarding “No Claim Bonus” is found to be incorrect, all the benefits under the Policy in respect of Section 1 stand forfeited. It was further stated that the complainant was asked to explain, as to why his claim be not repudiated vide letter dated 14.5.2014, to which he did not reply (Annexure R-6). It was further stated that the claim of the complainant was, therefore, repudiated vide letter dated 3.6.2014 by the Opposite Parties. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

5.         The complainant filed replication, wherein, he reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of the Opposite Parties. 

6.         The Parties led evidence, in support of their case.

7.         After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the District Forum, partly allowed the complaint, against the Opposite Parties, as stated above, in the opening para of the instant order. 

8.         Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

9.         We have heard the Counsel for the parties and have gone through the evidence, and record of the case, carefully.

10.       The Counsel for the appellants/Opposite Parties submitted that accident took place on 6.5.2014 during the subsistence of the Insurance Policy, effective for the period from 10.12.2013 to 09.12.2014 (Annexure R-2). He further submitted that the respondent/complainant submitted incorrect declaration that there was no claim during the outgoing Policy of the vehicle, in question. He further submitted that no doubt, it was also the duty of the Insurer to seek clarification about the correctness of the declaration given by the respondent/complainant, within 21 days as per Clause (f) of GR 27 of India Motor Tariff and the appellants/Opposite Parties did seek confirmation to this effect, though belatedly. The Counsel placed reliance on the judgment of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled ‘Inder Pal Rana Vs. National Insurance Co. Ltd.’, Revision Petition No.4470 of 2014 decided on 02.01.2015. He further submitted that the District Forum erred in allowing the complaint and the impugned order was liable to be set aside.

11.       The Counsel for the respondent/complainant submitted that the alleged declaration (Annexure R-1) placed, on record, by the appellants/Opposite Parties, was manipulated by the appellants/Opposite Parties and the same was not signed by the respondent/ complainant. It was stated that even basic particulars such as date of birth was incorrectly mentioned as 1.2.69 whereas as per Annexure C-12/C-13, correct date of birth of the complainant was 16.3.1968. He further submitted that no prudent person will fill in wrong date of birth. He vehemently pleaded that difference in signatures on proposal form and claim form, driving licence, discharge voucher was visible and complainant was ready to get his alleged signature on the proposal form examined from any hand-writing expert. He further submitted that cover note (Annexure C-3) was issued on 10.12.2013, which was valid for 60 days and the Insurance Policy as per Annexure R-7 was issued from Mumbai on 16.03.2014. He further submitted that the Insurance Policy, in question, and letter dated 16.03.2014 (Annexure R-7) were never received and the appellants/Opposite Parties did not produce any postal or courier receipt. He further submitted that appellants/Opposite Parties sought confirmation regarding NCB from the previous insurer only after claim was lodged whereas they were required to do so within a month from the date of cover.

12.       Perusal of record reveals that the cover note for the Policy was issued on 10.12.2013 and the Policy was issued from Mumbai on 16.03.2014 (Annexure R-2). The respondent/complainant has also specifically stated that the Policy, in question, was never received by him. The cover note issued, did not contain bifurcation/break-up of the premium amount of Rs.41,742/-. The validity of the cover note was 60 days, which period expired on 9.2.2014. Even as per document (Annexure R-2), the Policy was issued from Mumbai on 16.03.2014, receipt of which has been categorically denied by the respondent/complainant. The appellants/Opposite Parties have not indicated, as to by which mode, the same (Policy) was sent to the respondent/complainant. The respondent/complainant has specifically averred that proposal form which contained declaration regarding no claim bonus was manipulated, same was not signed by him and difference in signatures on the same, when compared with signatures on claim form, discharge voucher etc. was clearly visible. The proposal form is undated and it does not contain the basic important information regarding age of the proposer correctly. Even as per Sr. No.7 of the Proposal Form, vehicle is shown to be Brand New when actually the same was an old vehicle. Since the appellants have not successfully controverted the pleas of complainant on the basis of cogent evidence, we are inclined to accept the contention of the respondent/complainant that proposal form was not signed by him.

13.       The car met with an accident on 06.05.2014, claim was lodged on 8.5.2014, and the same was rejected by the appellants/Opposite Parties vide letter dated 3.6.2014 (Annexure C-9) sent through registered post. As is clearly evident from Annexure R-4, it was only after lodging of the claim by the respondent/complainant that the appellants/Opposite Parties took up with the previous Insurer for verification of No Claim Bonus details whereas they were required to do so within 21 days. Paras 9 and 10 of the order of District Forum, being relevant are produced hereunder:-

“9.     It is evident from the afore-extracted Clause (f) of G.R.27 of India Motor Tariff that the insurer was also duty bound to write to the previous insurer, within 21 days, after granting the cover for confirmation of the entitlement and rate of NCB.  Since the policy had been issued by the Opposite Parties, in respect of the vehicle,  in question, in favour of the complainant, it was its duty to obtain the information, as to whether, any claim had been obtained by the complainant, in respect of the Policy, of the previous year, within 21 days, but it failed to do so. Under these circumstances, the fault also lay, on the shoulders of the Opposite Parties, in not confirming about this factum, within the specified time, stipulated in the aforesaid Clause (f) of GR 27 of India Motor Tariff.

10.     The Surveyor and Loss Assessor vide report Annexure R-5, assessed the loss, to the tune of Rs.88,089/-. Report of the Surveyor and Loss Assessor, is based on the cogent and convincing material and data. No evidence was produced, on the record, to rebut the report of the Surveyor and Loss Assessor. It is, no doubt, true that the report of the Surveyor is neither binding, on the parties, nor the Consumer Fora, yet it being a very significant document, cannot be discarded lightly.” 

Thus, there was clear cut deficiency attributable to the appellants/Opposite Parties, as they failed to adhere to the provisions of Clause (f) of G.R.27 of India Motor Tariff, by not obtaining the requisite information, in respect of the Policy, in question, of the previous year, within the stipulated period of 21 days. The appellants were very prompt in declining the claim but they did not care to send the Insurance Policy to the complainant. On the face of facts and circumstances aforesaid, the facts of the instant case are distinguishable from the facts of Inder Pal Rana Vs. National Insurance Co. Ltd.’s case (supra).

14.       The District Forum, in our opinion, rightly partly allowed the complaint. The impugned order passed by the District Forum is, therefore, liable to be upheld.

15.       No other point was urged by the Counsel for the parties.

16.       For the reasons recorded above, the appeal, being devoid of any substance, is dismissed with no order as to cost. The impugned order dated 16.06.2015 passed by the District Forum is upheld.

17.       Certified copies of this order, be sent to the parties, free of charge.

18.       The file be consigned to the Record Room, after due completion.

Pronounced.

September 21, 2015

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

MEMBER

 

Ad