D.O.F:19/06/2019
D.O.O:20/05/2022
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION KASARAGOD
CC.No.116/2019
Dated this, the 20th day of May 2022
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Santhosh M.G,
Munnumakkal House, Pullur,
Haripuram P.O, Hosdurg Taluk, : Complainant
Kasaragod Dist
And
Bajaj Allianz General Insurance Company Ltd,
3rd Floor, Finance Tower,
Near Cochin Stock Exchange, : Opposite Party
Eranakulam. 682017
(Adv: Annama John.V)
ORDER
SRI.KRISHNAN.K :PRESIDENT
The complaint filed under section 12 of Consumer Act. Complainant is the R.C owner of Maruthi Alto car bearing registration No: KL 60 H 3656. The vehicle is duly insured with Opposite Party Bajaj Alliance General Insurance company through its agent Jayesh. The policy is valid up to 19/09/2019. Further case of complainant is that the car met with an accident on 02/02/2019. Intimation given and claim submitted. Complainant sent Rs. 65000/- for repair of car. A claim is made for reimbursement. Opposite Party repudiated the policy claim on the ground that complainant suppressed the claim availed from Cholamandalam and thereby availed no claim bonus and hence not liable. Complainant says previous accident and claim was informed to Opposite Party but not considered seriously since there is no reduction in premium or IDV. Complainant was under impression that no claim bar is given to him. It is the duty of Opposite Party to enquire regarding earlier claim, if any. The repudiation of claim by Opposite Party is illegal. Complainant sought the following relief to direct Opposite Party to pay Rs. 65000/- with interest and Rs. 20,000/- as compensation and cost of litigation costs.
2. The Opposite Party filed its written version admitting issue of policy of insurance but denying all the other allegations of complainant and further alleged that the complainant at the time of taking policy, declared that he had not made any claim in the previous policy with this previous insurer. Later it was come to know that complainant availed 45% no claim bonus from Opposite Party by giving a false declaration and policy is obtained by suppressing material fact. The complainant is guilty of fraud and thus all benefits to be forfeited, that good faith is breached in contract of insurance and since there is violation of policy conditions and complainant had availed 45% discount of no claim bonus , but at the time of processing the claim found that the complainant has availed the insurance amount for the damages caused to his vehicle and claimed no claim bonus 45% by suppressing the earlier claim such suppression of material fact amounts to breach of utmost good faith. Surveyor is deputed to assess loss. He reported damage of Rs. 34,016 only. Hence there is no deficiency in service on the part of Opposite Party. Thus not liable for any of the reliefs.
3. Complainant filed chief affidavit and marked documents Ext A1 to A6. Ext A1 is the registered notice issued to Opposite Party. Ext A2 and A3 is the reply letter, Ext A4 is copy of letter to complainant from Opposite Party. Ext A5 copy of general diary extract, Ext A6 is the policy schedule certificate issued to Opposite Party.
4. The Opposite Party filed documents and they are marked as Ext B1 to B11. Ext B1 is the policy certificate, Ext B2 claim form, Ext B3 letter submitted, Ext B4 is the postal AD, Ext B5 postal receipt, Ext B6 copy of letter issued to complainant, Ext B5 is the letter to complainant , Ext B6 is the letter sent by complainant to and Ext B7 the postal AD, Ext B8 is the Postal receipt, Ext B9 copy of letter to complainant , postal receipt is Ext B10, Ext B11 survey report.
5. After closure of the evidence. Opposite Party filed written arguments heard both parties .points for considerations are;
a) Whether there is deficiency in service on the part of the Opposite Party?
b) Whether the complainant is entitled to any compensation
c) To what reliefs complainant is entitled as prayed for?
Point No: 1&2
The complainant perused the records in the case, considered the evidence both documentary and oral. The repudiation of the claim by the Opposite Party is made on the ground that the complainant at the time of taking the policy with the Opposite Party has declared that he has not availed any claim from the insurer and availed 45% of no claim bonus from the Opposite Party. In the policy issued by the Opposite Party under Ext A6 ( Same as B1) it is clearly mentioned that the policy holder has declared no claim which means that the complainant has not made any claim during the previous policy period.
6. Further in the said policy there is a clause clearly stating that if declaration is found incorrect, benefits under the present policy in respect of own damage section will stand forfeited. In the present case, the complainant has claimed for the damages caused to her insured vehicle. In the complaint there is no specific denial of the complainant stating that he has not availed or claimed any amount from insurer for the damages caused to his vehicle previously. His only contention is that the claim availed or not earlier has no connection with the present policy as both policies ie, the present and earlier policies are two different and distinct policies. From the said averment of the complainant, it could be clearly inferred that the complainant has already claimed the insurance amount for the damages caused to the vehicle from the previous insurer.
7. But in evidence while cross examination. Pw1 deposed that, “ He has claimed and obtained damages from Cholamandalam. Insurance and even admitted having obtained damages page.1. But he admits insurance policy is a contract and is bound to obey the policy conditions:
At the same time complainant content that no question was asked about previous claim.
8. In Ext B3 and B6 letter sent by Opposite Party to complainant, it is specifically stated that inspite of having experienced a claim on previous policy, you have availed 45% NCB. To these letters complainant not sent his reply. But “even assumed to be a non-disclosure, it would not be a material fact to repudiate the claim under the policy”.
9. Complainant has no case that entries in the proposal form was made without his knowledge or consent or that entries in any of the column are wrong or not binding on here.
10. As per B9 repudiation letter, it is specifically stated that he has failed to provide satisfactory reply with documentary evidence to quires and thus claim is repudiated.
11. The case of Opposite Party is that complainant suppressed earlier claim is evident and clearly indicates that the complainant has made previous claims for the damages caused to the vehicle from previous insurer ie, cholamandalm insurance. Hence the policy though obtained by the complainant are from two different insurer companies, the complainant deliberately suppressed the material facts of previous claim to the Opposite party and obtained of 45% of no claim bonus . The complainant has obtained the policy by fraud and breached the principle of grand faith. Such an act on the part of the complainant is not fair and proper.
12. Thus case of the insurer is that the policy is one obtained by practicing fraced. If the policy had been one obtained by suppressing the fact no provisions claim thereby got NCB, in terms of section 149 (2) of the Act, the insurer is entitled to raise a contention in a case of these nature that the policy proposal obtained by the appeallant is void. The insurer did not produce the policy proposal which is an integral part of the policy. So complainant had not disclosed about earlier claim in his policy proposal form, his present claim is not admissible claim and policy claim is rejected thus the complainant concealed factuary that he had lodged a claim with the previous insurer, made a wrong declaration of NCB all the benefits of under the present policy stood forfeited. Complainant opted to purchase policy by giving false declaration concealed material facts. Such suppression of materilised fact amounts to breech of at most good faith. Hence there is no deficiency in service on their and repudiation justified.
There is no evidence about the cause of accident as where it happened and how happened and also no FIR was dodged as his car insured. The onus to prove damages rest upon complainant and here he has failed to prove so.
The settled law is that if the complainant obtains insurance policy from Opposite Party by false declarations; the insurance policy is void at the complainant is not entitled to any compensation. The facts and circumstances explained in the said cases are squarely applicable to the present case on hand in the present case, the Opposite Party is justified with send reasoning the repudiating the claim of the complainant.
But Opposite Party failed to produce policy proposal form which is an integral form of policy which contains information about previous claims if any R-27 of the Indian Motor Tariff deals with ‘ No claim Bonus”. A minute perusal of that regulation makes to clear that the insurance company was duty bound to call for the confirmation of entitlement and the rate of NCB for the particular insured from the previous insurance company, only when “ No claim Bonus” was allowed on the basis of the declaration made by the insured. Further surveyor appointed by Opposite Party reported that vehicle suffered damage worth claim of Rs. 34,016/-. So consumer complaint finds that Opposite Party is liable to pay Rs. 34,016/- assessed by surveyor to complainant towards damages suffered to vehicle if the complainant with litigation costs of Rs. 5000/-.
In the result complaint is allowed in part. The Opposite Party is directed to pay Rs. 34, 016/- to the complainant and Rs. 5000/- (Rupees Five thousand only) to the complainant within 30 days of the receipt of the order.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1- Lawyers notice
A2 & A3 Reply letter
A4- A letter Dt: 13/03/2019
A5- General Diary abstract
A6- Policy schedule certificate
B1- Certificate of Insurance
B2- Motor Insurance claim form
B3- A letter Dt: 13/03/2019
B4-Postal Acknowledgment
B5- Postal receipt
B6- A letter Dt: 19/03/2019
B7- Postal Acknowledgment card
B8- Postal receipt
B9- Copy of letter to complainant Dt; 25/03/2019
B10- Postal Receipt
B11- Survey Report
Witness Examined
Pw1- Santhosh.M.G
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Ps/ Assistant Registrar
