O R D E R

Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this complaint u/s.12 of the C.P. Act 1986.

2. The case of the complainant is stated as follows:   The complainant is the registered owner of “Indigo Manza” Car bearing Reg.No.  KL-03-U-5066 made by Tata Company.  The said car has get full coverage of insurance from opposite parties company Policy No. 001 – 14 – 1610 – 1801 - 00000292 from 17.06.2013 to 16.06.2014.  On 21.09.2013 at about 6 am, another vehicle hit on this car and heavy damages caused to the said car.  As a result of this incident the complainant spend a huge amount for its repairment.  According to him, an amount of Rs. 2, 00,403/- (Rupees Two Lakhs Four Hundred and Three only) spend for the repairement purpose of this vehicle. The occurrence happened within the jurisdiction of Adoor Police Station and a G.D entry is entered in the said Police Station.  The complainant entrusted this vehicle at Divine Road Assistance workshop at Idappally at Kochi and remitted an amount of Rs. 2, 00,403/- as workshop expenses.  The complainant again stated that, he is eligible to get all the damages from the opposite party as an insured of the opposite party.  He again stated that, he remitted Rs.54,900/- for the full coverage insurance as stated earlier and the incident took place clearly within the insurance period.  When the opposite parties reluctant to pay the insurance amount which is deserved to the complainant he send a letter through his advocate on 21.11.2013, but even though the opposite party received this notice, no reply was given to the complainant.  The act of the complainant is a purposeful violation of the policy condition and it cannot be tolerated.  The cause of action for this case arised within the jurisdiction of this Forum.  Hence, the complainant requested this Forum to allow the claim amount of Rs.2,00,403/-  and as compensating the delay for the disbursement of an amount Rs. 30,000/- and the cost of the case against the opposite parties.  The complainant filed this complaint along with 6 documents. 

3. This forum heard the complaint and issue notice to the opposite parties for their appearance.  The opposite parties entered appearance and filed their version as follows.

4. According to the opposite parties this complaint is not maintainable either in law or facts.  This opposite parties admitted the ownership of the vehicle, accident on 21.09.2013 and the policy No. OG – 14 – 1610 – 1801 – 00000292 of the complaint.  This opposite parties are stated that the complainant’s previous policy was with another Insurance Company and this opposite party issued the policy to the complainant for the first time upon the declaration of the complainant in the form of a new proposal.  The opposite parties again stated that, they scrutinized the claim with due diligence subject to the terms and condition of the policy and relevant proof of the Indian Motor Tariff.  On the basis of the declaration given by the complainant, the complainant is eligible for 25% of no Claim Bonus if there is no claim put forwarded in their previous policy.  According to this opposite party, the complainant suppressed the actual fact of the previous claim and submitted the new proposal which renders the policy invalid from the very inception without any claim for refund of premium amount.  The opposite parties rely General Regulation No.27 of the Indian Motor Tariff which governs the matter of no claim bonus which is stated below.  “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 which the insured would have received from the previous insurer.  Evidence of the insured’s entitlement either in the forum of a renewal notice or a letter confirming 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 insurer, the claimed NCB may be permitted 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 has arisen in the expiring policy period ( copy of the policy enclosed) I/we further undertake that this declaration is found to be incorrect, all benefits under the policy in respect of section 1 of the policy will stand forfeited”.  Section 1 referred to herein is regarding own damage claim as is claimed by the complainant which gave rise to this consumer dispute.

5. According to the opposite parties, the insured has made a false declaration and later it was found that there was a claim in the previous policy which had been suppressed by the complainant by taking the said policy with opposite parties.  This suppression is to get the no claim bonus for his unjust enrichment.  This is the reason for the ground of repudiation of the complainant claim.  This opposite parties specifically denied that there is no deficiency in service on their side regarding this issue.  Therefore, the opposite parties prayed to dismiss the complaint with the cost of the opposite parties.

6. On the basis of the contention raised by the complainant and the opposite parties in this case we raised the following issues for consideration.

1. Whether this petition is maintainable before this Forum?
2.  If it is maintainable whether the complainant succeeds to prove the deficiency in service on the part of opposite party?
3. Regarding relief and costs?

7. The evidence of this case consists of oral evidence adduced by PW1, PW2, DW1 and DW2.  On the side of complainant apart from this oral evidence Ext.A1 to Ext.A6 were marked through PW1 for his evidence.  But on the other hand, opposite parties were examined DW1 and DW2 and through DW1, B1 to B7 were marked and through DW2 Ext.B8 and B9 were also marked.  Ext.A1 is the photocopy of G.D entry dated 21.09.2013 of Adoor Police Station. Ext.A2 series (1 to 6) are the copy of invoice dated 20.11.2013 for Rs.2,00,403/- issued by Tata Motors to the complainant. Ext.A3 is the photocopy of Insurance policy. Ext.A4 is the advocate notice sent by the complainant to 1^st opposite party. Ext.A5 is the acknowledgment card of Ext.A4 and Ext.A6 is the postal receipt of Ext.A4.   But on the other hand, DW1 examined and marked Ext.B1 to B7 documents.  Ext.B1 is the copy of certificate cum policy schedule of Bajaj Allianz General Insurance Company Ltd. Ext B2 is the Proposal form. Ext.B3 is the declaration form. Ext.B4 is the proposal cum coverage note for package policy. Ext.B5 is the letter dated 30.09.2013 sent by the opposite parties to the complainant. Ext.B5(a) is the acknowledgement card of Ext.B5. Ext.B6 is the letter dated 08.10.2013 sent by the opposite parties to the complainant and Ext. B6 (a) is the acknowledgement card. The Ext. B6 (b) is the letter dated 04.11.2013, sent by the opposite parties to the complainant and the acknowledgement card is Ext.B6(b1). The Photocopy of Restricted Power of Attorney is Ext.B7.  Ext.B8 and Ext.B9 are the claim details.  After the closing of the evidence we heard both parties.  The opposite parties filed an argument note apart from their submission before the Forum.
8. Point No. 1 to 3 : For the sake of convenience we would like to consider point No.1 to  3 together.  Regarding the issue of maintainability we do admit that the opposite parties raised serious contentions.  Though they raised this contentions the opposite party not succeed to prove or substantiate their contention in this aspect.  This is an admitted case that the complainant is the insured and the opposite parties are the insurer.  The transaction between this parties are also admitted and when we go through the evidence in this case it is clearly comes out in evidence that the complainant in this case is a customer as per Section 2(d) of the Consumer Protection Act.  The opposite party has not raised any question of jurisdiction or limitation against the complainant.  Hence we find point No.1 in favour of the complainant.  In order to prove the case of the complainant, the complainant himself filed a proof affidavit in lieu of chief examination along with Ext.A1 to Ext.A6.  When we peruse the evidence adduced by PW1 in this case it is revealed that, he is the owner of the vehicle and the vehicle met with an accident on 21.09.2013 and at that time the opposite parties insurance was in force as far as the complainant is concerned.  As per Ext.B1 certificate cum policy schedule it reveals that, the commencement of the policy was on 17.06.2013 and the policy will expire only on 16.06.2014 midnight and it also so clear that the complainant is the policy holder of the opposite parties.  As per Ext.A3, Ext. B2 and Ext.B3 it reveals that the complainant signed and filed a proposal form before the opposite party on 15.06.2013 and the policy is valid from 17.06.2013 onwards. Ext.A1 is the G.D entry which shows that the alleged incident took place on 21.09.2013 at 6 am.  As per Ext.A2 it shows that, Rs. 2,00,403/- has spent by the complainant for the repairment of the vehicle.  Ext.A3 page No.2 and Ext.B3 are one and the same.  This evidence of Ext. A3 page 2 and Ext.B3 shows that, the complainant file a declaration along with the proposal form to the effect that the complainant has not received any claim from the expiring policy period.  The declaration is made like this ‘I/ We declare that the rate of NCB claimed by me/us is correct and that no claim has arisen in the expiring policy period (copy of the policy enclosed).  I/We further 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’.  Ext.A4 revels that, the complainant issued a legal notice through his counsel on 21.11.2013 to the first opposite party and Ext.A5 and Ext.A6 shows that the said letter send through registered post and the same is accepted by the opposite party No.1.  Through DW1 Ext.B4 is marked.  The Ext. B4 is a cover note for the renewal of the policy which was issued on 15.06.2012.  Ext.B5 dated 30.09.2013, Ext.B6(b) dated Nil, Ext.B6(b1) dated 17.11.2012 and  Ext.B6 dated 08.10.2013 these all are shows that the claim put forwarded by the complainant is repudiated by the opposite party as a result of suppression of the fact at the time of filing the proposal form (Ext.A3).  It is evident to show that as per Ext.B6, it is stated “As per information submitted by your good self you have availed 25% NCB in spite of having experienced a claim on previous policy.  This had lead to breach of Insurance contract and as per declaration which states as : I/We the above named, do hereby, to the best of my/our knowledge and belief, warrant the truth of the foregoing statements in every respect and agree that if I have made any false or fraudulent statement of there be any suppression or concealment, the policy shall be canceled and the claim shall be forfeited”.  Hence at the material time of accident the said policy was void.  The reason for the repudiation of the amount is due to the suppression of the actual fact by PW1 at the time of filing the proposal form with the opposite party No.1.  It is a cogent and conclusive evidence for repudiation.  The complainant in this case availed no claim bonus from the opposite party as per the said proposal form.  Subsequently it reveals that, the complainant received claim bonus from the previous insurance policy holder and the said fact purposefully suppressed at the time of filing Ext.A3.  The learned counsel appearing for the opposite parties has a definite case,  at the time of filing the version and at the time of cross examination, the complainant purposefully suppress the receipt of claim from the prior insurer.  When this PW1 is cross examined before the Forum he deposed like this ഈ പോളിസിക്കു മുന്പ് എൻറെ വാഹനത്തിന്  Reliance ൻറെ പോളിസി ആയിരുന്നു. ഞാൻ Declaration form ലും  Proposal form ലും ഒപ്പിട്ടിരുന്നു. ഈ പോളിസി എടുത്തപ്പോള് എനിക്ക്  20% No Claim Bonus ലഭിച്ചിരുന്നു. എതിർകക്ഷി സ്ഥാപനത്തിൽ നിന്നും പോളിസി എടുക്കുന്നതിനു മുൻപ് മുൻ ഇൻഷ്വററായ Reliance പോളിസി Renewal letter ആയോ  letter conforming No Claim Bonus ആയോ നിങ്ങള് ഹാജരാക്കിയോ ? (Q) ഹാജരാക്കിയിരുന്നു.  (Ans.) and again he answered എൻറെ മുൻ പോളിസി ആയ  Reliance ൽ ഒരു ക്ലെയിം ഉണ്ടായിരുന്നു. 'രണ്ട് ക്ലെയിം ഉണ്ട് എന്ന് പറഞ്ഞത് ഞാൻ ഓർക്കുന്നില്ല.'  But it is seen that, there is no records produced on the side of complainant to prove that he produced policy renewal letter or letter conforming no claim bonus before this Forum and more over he admitted that, he had one claim against the former insurance company, that is Reliance Insurance company.  The opposite parties raised another contention to the effect that the complainant has not a definite case with regard to the alleged incident.  As per the testimony of PW1 in cross examination he stated that the occurrence took place on 21.09.2013 at 1’O clock in midnight.  At the same time it is so interesting to see that, as per Ext.A1 the G.D entry of the Adoor Police station dated 29.09.2013 the incident took place on 21.09.2013 ‘പുലർച്ചെ' 1 മണി (1 am) .  When we peruse the complaint it reveals that, the incident took place on 21.09.2013 at 6 am and the same date is repeated in the proof affidavit of the PW1 also.  All these self contradictions are clearly asked by the counsel at the time of cross examination and through his testimony all these contradiction are proved. The learned counsel appearing for the opposite parties submitted that as per Ext.B3 declaration there was an undertaking on the part of the complainant to the effect that, if the said declaration is found to be incorrect all benefits under the policy in respect of Section 1 of the policy will  stands forfeited.  In order to substantiate the said declaration the counsel pointed out General Regulations contained in No.27(f) of the Indian Motor Tariff .  Apart from this he pointed out Ext.B8 and Ext.B9.  It reveals that same vehicle was caused two accidents on 01.10.2012 and 29.12.2012 and for both these incidents the complainant claimed for an amount of Rs.13,958/- and Rs.21,570/- respectively.  The learned counsels appearing for the opposite party cited the decision of our Hon’ble Supreme Court in 2008(1) SCC 321 in P.C Chacko and  Others Vs Chairman LIC of India and Others.  The dictum in said decision is “ The  purpose for taking a policy of insurance is not in our opinion very material.  It may serve the purpose of social security but then the same should not be obtained with a fraudulent act by the insured.  Proposal can be repudiated if a fraudulent act is discovered.  The proposer must show that his intension was bona fide.  It must appeared from the face of record. In a case of this nature it was not necessary for the insurer to establish that the supersession was fraudulently made by the policy holder or that he must have been aware at the time of making the statement that the same was false or that the fact was suppressed which was material to disclose.  A deliberate wrong answer which has a great bearing on the contract of insurance, I discovered may lead to the policy being vitiated in law”.  On the basis of the above discussion we find that, the complainant here in suppressed a material fact at the time of filing Ext.A3 proposal form and the suppression is proved by Ext.B3 and it is so important to see that the complainant has no consistent view with regard to the time of incident also.  We do admitted that, on the basis of evidence adduced by the complainant  it reveals that, the complainant vehicle met with an accident and spend Rs.2,00,403/-  for its maintenance.  Here we have to consider the plea of the opposite party regarding the issues earlier discussed.  When we consider the issue raised by the opposite parties it is evident to see that, the complainant has no specific explanation with regard to the main issue discussed above.  Hence we find point No. 2 and 3 against the complainant.

9. In the result the petition is dismissed.  No order of cost.

         Declared in the Open Forum on this the 30^th day of September, 2015. 

                                                                                  (Sd/-)

                                                                   P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                                         (President)

Smt. K.P. Padmasree (Member – I)               :   (Sd/-)

Smt. Sheela Jacob (Member – II)                  :   (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1    :        Thomas Mammen

PW II  :        Varghese T.M

Exhibits marked on the side of the complainant:

A1     :  Photocopy of G.D entry dated 21.09.2013 of Adoor Police  Station.

A2     :  Copy of invoice dated 20.11.2013 for Rs.2,00,403/- issued  by Tata                 

            Motors to the complainant. 

A3     :  Photocopy of Insurance policy.

A4     :  Advocate notice sent by the complainant to 1^st opposite party.

A5     :  Acknowledgment card of Ext.A4

A6     :  Postal receipt of Ext.A4.  

Witness examined on the side of the opposite parties: 

DW1  :         Alice John

DW II :         Jobin George

Exhibits marked on the side of the opposite parties: 

B1     :        Copy of certificate cum policy schedule of Bajaj Allianz  General  Insurance Company Ltd.

B2      :       Proposal form.

B3      :       Photocopy of the Declaration form.

B4      :       Photocopy of Proposal cum coverage note for package policy.

B5       :       Photocopy of letter dated 30.09.2013 sent by the opposite parties to the complainant.

B5(a)   :       Acknowledgement card of Ext.B5.

B6     :        Photocopy of the letter dated 08.10.2013 sent by the opposite parties to the   complainant.

B6(a)   :       Acknowledgement card.

B6(b)            :        Photocopy of letter dated 04.11.2013, sent by the opposite parties

                   to the complainant         

B6(b1) :       Acknowledgement card

B7      :       Photocopy of Restricted Power of Attorney.

B8 & B9 :    Photocopy of Claim details.

                                                                                                                         (By Order)

Copy to:- (1) Thomas Mammen, Kodannur Samudayathil, Keezhukara,

 Kozhenchery, Pathanamthitta.

              (2)  The Branch Manager, Bajaj Allianz General Insurance

Co. Ltd., Parayil Building, Near Regional Transport Office,

College Road, Pathanamthitta.

              (3) Authorised Signatory, Regional Manager,

Bajaj Alianz General insurance Co. Ltd.

2^nd Floor, Finance Tower, Kaloor, Cochin – 682 017.

              (4)  The Stock File.