Haryana

Ambala

CC/278/2019

Sanjeev Kumar - Complainant(s)

Versus

Bajaj Allianz General Inss Co Ltd - Opp.Party(s)

Jai Bhagwan Rana

08 Feb 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                                      Complaint case no.         :  278 of 2019

                                                          Date of Institution           :   02.09.2019

                                                          Date of decision     :   09.02.2021.

 

Sanjeev Kumar son of Shri Satnam Dass Resident of House No.2150, Opp. Police Station, VPO Barara, Tehsil Barara, Distt. Ambala at present resident of Modern Complex, Opp. Gas Agency, Barara, Tehsil Barara District Ambala.

……. Complainant.

 

1. Bajaj Allianz General Insurance Company Limited, Bajaj Finserv Building, 1^st Floor, Behind Weikfield IT-Park, Viman Nagar, Pune-411014 through its Authorized signatory.
2. Bajaj Allianz General Insurance Company Limited, CBIP Building, 3^rd Floor, Plot No.21, Sector 32, Gurugram (Haryana) through its authorized signatory.
3. Mr. Jagjeet Singh, JS Associates, #949, Opp. Allahabad Bank, Govt. School Road, Barara, Tehsil Barara, District Ambala.

                                                                                                         

           ….…. Opposite Parties.

 

Before:        Ms. Neena Sandhu,  President.

                   Ms. Ruby Sharma, Member,

Sh. Vinod Kumar Sharma, Member.          

                            

Present:       Shri J.B.Rana, Advocate, counsel for complainant.

Shri R.K.Vig, Advocate, counsel for the OPs No.1 & 2.

OP No.3 already exparte.

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of  following directions to them:-

1. To pay Rs.65,363/-, the cost of repair of the car to the complainant alongwith interest upto date @ 24% per annum.   
2. To pay Rs.1,00,000 /- as compensation for the mental agony and harassment suffered by him alongwith cost of litigation.

 

382.  

Any other relief whichthis Hon’ble Commission may deemfit.

 

Brief facts of the case are that the complainant got insured his car make Hyundai I20 having Registration No.HR-54B-3555 with the OP No.1 & 2 through their agent OP No.3, by paying premium of Rs.17,494/-. The OPs No.1 & 2 issued a insurance policy No.OG-19-9906-1801-00039454, valid for the period from 22.07.2018 to 21.07.2019. Complainant met with an accident on 30.11.2018 at about 6:30 p.m., on Barara Bypass, as a truck which was ahead of the car of the complainant suddenly applied the brakes as a result whereof his car collided with the said truck and badly damaged. For repairs, he took his car to the M/s Samrithi Motors Pvt. Ltd. Jagadhri Road, Tepla, Ambala and   information was given to the OPs. M/s Samrithi Motors Pvt. Ltd. had sent the estimate of repair of vehicle of the complainant to the OPs, through email, but they did not release the claim amount and repudiated his claim on the flimsy ground. Inspite of fulfilling the eligibility of claiming compensation of damaged car, the OPs have simply repudiated the same to avoid their liability and he was forced to pay the entire repair cost of his vehicle amounting to Rs.65,363/-. The OPs did not pay the legitimate claim of the complainant and it appears that the OPs are not adhering to the terms and conditions of the contract of the policy. Complainant also sent legal notice dated 23.07.2019, to the OPs, but they failed to give any reply to the said notice. By not paying the genuine claim amount the OPs have committed deficiency in service. Hence, the present complaint.

2.                Upon notice, OPs No.1 & 2 appeared through counsel and filed written version, raising preliminary objections regarding maintainability, suppression of true and material facts and estoppel. On merits, it is stated that the Car of the complainant i.e. Hyundai bearing registration No.HR-54-B-3555 was insured w.e.f 22.07.2018 to 21.07.2019, by the answering OPs as per terms and conditions of the insurance policy. The information regarding the accident was received and the company took all necessary steps as required, so as to ensure to decide the claim as per terms and conditions of the insurance policy. The car got repaired from M/s Samrithi Motors Private Limited, Tepla, Ambala. The company acted promptly on the receipt of claim, got it verified from the surveyor, who after inspection assessed the loss of Rs.63,670/, which was subject to terms and conditions of the policy. Complainant obtained the policy by declaring false information to the extent that he did not claim any NCB from the previous policy, whereas after verification, it was found that claim had been taken by the complainant under the previous policy and thus he is not entitled for any compensation. Thus, filing of claim was devoid of any logical reasoning. It is further stated that on 03.01.2019, answering OPs informed the complainant and gave him an opportunity to offer his comments, but, he failed to respond to the letter, which was sent through registered cover and as such the claim was rightly repudiated, as it was based on false declaration. The rejection is perfectly legal and valid and as such there arises no question of deficiency of services on the part of the answering OPs, therefore, complaint filed by the complainant may be dismissed with heavy costs.

3.                Upon notice, none has appeared on behalf of the OP No.3 before this Commission, therefore, he was proceeded against ex-parte vide order dated 23.10.2019.

4.                 To prove his version, complainant tendered his affidavit as Annexure CA along with documents as Annexure C-1 to C-11 and closed the evidence. On the other hand, learned counsel for OPs No.1& 2 tendered affidavit of Shri Saurav Khullar, Senior Executive, Bajaj Allianz General Insurance Company Limited as Annexure OP-1/1 alongwith documents as Annexure OP1/2 to OP1/14 and closed the evidence on behalf of the OPs No.1 and 2.

4.                 We have heard the learned counsel for complainant & learned counsel for OPs No.1 & 2 and carefully gone through the case file.

5.                The learned counsel for the complainant argued that the complainant got insured the car in question from the OP No.1 and 2 through OP No.3 for the period from 22.07.2018 to 21.07.2019. During the subsistence of the policy, it met with an accident. The claim lodged by the complainant was wrongly repudiated by the Ops No.1 and 2 vide letter 03.01.2019 Annexure C-7/OP1/12.   

6.                On the contrary, the learned counsel for OPs No.1 and 2 argued that the OPs No.1 and 2 have rightly repudiated the claim of the complainant because while taking the policy in question, the complainant obtained no claim bonus @ 20%, whereas, he had already availed no claim bonus during the period of previous policy, which he obtained from New India Assurance Company. By doing so, complainant breached the terms and conditions of the policy and thus not entitled to any relief.  In support of his contention, the ld. Counsel for the OPs No.1 & 2 has placed reliance on the cases, titled as Tata AIG General Insurance Company Limited & Another Vs. Gulzari Singh, Revision Petition No.1255 of 2009, date of decision 26.02.2010 (NC) and Brij Bhushan Vs. National Insurance Company Limited & Another, Revision Petition No.33 of 2012, date of decision 22.08.2012 (NC).

7.                Admittedly, the car of the complainant having registration No.HR-54-B-3555, was duly insured with the OPs No.1 and 2, for the period from 22.07.2018 to 21.07.2019 vide policy document Annexure OP1-14. From the said policy, it is evident that no claim bonus was claimed @ 20%. From the perusal of proposal form Annexure C-6, at Sr. No.17, it is specifically mentioned that “NCB (No Claim Bonus) claimed by you and granted by us based on your declaration of no claim during your previous policy:20%”. However, from the perusal of Motor Claim History of the vehicle in question given by Insurance Information Bureau of India Annexure OP1/6, it is quite clear that an amount of Rs.20648/- was paid by New India Assurance Co. Ltd. as accidental loss occurred on 02.08.2017. Meaning thereby, the complainant had availed no claim bonus during the subsistence of the previous policy and had taken the policy in question by not disclosing this fact and giving wrong declaration, while taking the policy in question has certainly committed a mistake. However, at the same time, it cannot be ignored that as per Clause (f) of GR 27 of India Motor Tariff, which is extracted as under:

                   “(f)” in the event of the insured, transferring his insurance from one insurer to another insurer, the transferee insurer may allow the same rate of NCB while the insurer would have received from the previous insurer. Evidence of the insured’s NCB entitlement either in the form of a renewal notice or a letter confirming the NCB entitlement from the previous insurer will be required for this purpose.

                    Where the insured is unable to produce such evidence of NCB entitlement from the previous owner, the claimed NCB may be premised after obtaining from the insured a declaration as per the following wording:

                    I/We declare that the rate of NCB claimed by me/us is correct and that no claim as arisen in the expiring policy period. I/We undertake that if this declaration is found to be incorrect, all benefits under the policy in respect of Section 1 of the Policy will stand forfeited”.

                   Notwithstanding the above declaration, the insurer allowing the NCB will be obliged to write to the Policy issuing office of the previous insurer, by recorded delivery calling for confirmation of the entitlement and rate of NCB for the particular insured and the previous insurer shall be obliged to provide the information sought within 30 days of receipt of the letter of enquiry, failing which the matter will be treated as a breach of Tariff on the part of the previous insurer. Failure of the insurer granting the NCB to write to the previous insurer within 21 days, after granting the cover will also constitute a breach of the Tariff.”                 

                   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 OPs No.1 and 2 in respect of the vehicle in question, in favour of complainant, it was their 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 they failed to do so. Under these circumstances, the fault also lay, on the shoulders of the insurance company, in not confirming about this factum, within the specified time, stipulated in the aforesaid Clause (f) of GR 27 of India Motor Tariff, thus, both the complainant and the OPs No.1 and 2 were at fault. As stated above, in these circumstances, by no stretch of imagination, it could be said that by repudiating the claim of the complainant, as a whole, especially when the OPs were also at fault, on account of contravention of Clause (f) of GR 27 of India Motor Tariff, they were deficient in rendering services to some extent.

8.                The next question, that falls for consideration, is as to whether, there was a breach of fundamental condition of the policy by the complainant. In our considered opinion, when both the complainant and the OPs No.1 and 2 were at fault, to the extent, referred to above, breach of condition of the policy, by claiming the NCB @20%, could neither be said to be fundamental nor germane to the incident. In the case of United India Insurance Co. Ltd. Vs. Bhupinder Singh, III, 2013 CPJ 333 (NC), the duly insured vehicle was stolen and the insured wrongly claimed no claim bonus at the time of renewal of the policy. The claim was repudiated by the insurance company, The Hon’ble National Commission by making reliance on the case of National Insurance Co. Ltd. Vs. Nitin Khandelwal, 2008 CPJ, 1 (SC), wherein the Hon’ble Supreme Court of India has held that the breach of condition was not germane to theft, hence the claim is required to be settled on non-standard basis, has directed the insurance company to settle the claim of the complainant, on non-standard basis. The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case. The insurance company i.e OPs No.1 and 2, therefore, was required to settle the claim of the complainant, on Non-Standard basis, by not doing so, it has committed deficiency in rendering services. The surveyor vide report dated 05.12.2018 (Annexure OP1-7) has assessed the net amount of Rs.63,670/-. The report of the surveyor is based on cogent and convincing material and data. No evidence was produced, on the record, to rebut the report of the surveyor. In the case of United India Insurance Co. Ltd. Vs. Deen Dayal, II (2009) CPJ, 45 (NC), the Hon’ble National Commission has held that the surveyor’s report being important document cannot be brushed aside lightly without any material to contrary on record. The complainant, is thus, held entitled for a sum of Rs.47,752/- i.e. 75% of Rs.63,670/-, on non-standard basis. The complainant has also claimed compensation to the tune of Rs.1,00,000/- for loss of work, mental agony and physical harassment suffered by him. It may be stated here that by claiming no claim bonus wrongly the complainant had committed mistake, thus, he is not entitled to get compensation on account of loss of work, mental agony and physical harassment suffered by him. So, far as the deficiency on the part of OP No.3 is concerned, the complainant had stated that he obtained the police from the OPs No.1 and 2 through OP No.3, neither any specific allegation has been levelled against nor it has been proved, therefore complaint filed against him is liable to be dismissed.

9.                In view of the aforesaid discussion, we hereby dismiss the present complaint against the OP No.3 and partly allow the same against OPs No.1 and 2 with no order as to costs and direct the OPs No.1 and 2 to pay Rs.47,752/-, i.e. 75% of the Rs.63,670/- on non-standard basis, to the complainant. The above said amount shall be paid by the OPs to the complainant within 45 days from the date of the receipt of the copy of this order, failing which, the said amount shall carry interest @ 5% per annum from the date of filing the complaint till its realization. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on : 09.02.2021.

 

 

                     Sd/-                                       Sd/-                                 Sd-

          (Vinod Kumar Sharma)            (Ruby Sharma)               (Neena Sandhu)

              Member                                  Member                       President