| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION PATIALA. Consumer Complaint No. 178 of 17.5.2017 Decided on: 1.9.2021 Sukhdev Singh s/o S.Jeet Singh r/o village Mirzapur, Tehsil & District Patiala ( since deceased) now represented by Amanpreet Singh (son) and Kulwinder Kaur (widow of Sukhdev Singh) LRs impleaded vide order dated 23.8.2021. …………...Complainants Versus - Bharti Axa General Insurance Co. Ltd.,SCO 350-351-352 , Ist Floor, Sector 34-A,Chandigarh-160034 through its Branch Manager.
- Taaresh Bhardwaj, authorized agent of Bharti Axa General Insurance Co. Ltd. SCO 125-126, New Leela Bhawan Market, Patiala.
…………Opposite Parties Complaint under Section 12 of the Consumer Protection Act, 1986. QUORUM Sh. Jasjit Singh Bhinder, President Dr.Harman Shergill Sullar, Member ARGUED BY Sh.Avtar Singh Dhaliwal, counsel for complainant. Sh.Jaspreet Singh, counsel for OP No.1. Opposite party No.2 ex-parte. ORDER JASJIT SINGH BHINDER,PRESIDENT - This complaint was filed by Sukhdev Singh but now the same has been represented by his LRs i.e. Kulwinder Kaur (his widow) and son Amanpreet Singh (impleaded vide order dated 23.8.2021) against Bharti Axa General Insurance Co. Ltd. and another (hereinafter referred to as the OP/s) under the Consumer Protection Act,2019 (for short ‘the Act’)
- Briefly the case of the complainant is that Sukhdev Singh is owner of vehicle make Malkit Combine bearing registration No.PB-11-BN-1530 and he got the same comprehensively insured with OP No.1 vide policy No.FCV/12210774/91/06/004065 valid from 1.7.2016 to 30.6.2017 and paid the amount of premium. It is further averred that the complainant got the combine in question financed from financial institution and was paying installments.
- It is further averred that on 10.11.2016, vehicle of the complainant met with an accident on Samana-Patran Road at about 10.30PM while saving stray cow, as a result of which the combine was damaged. It is further averred that FIR was not lodged because there was no third party damage. It is further averred that on 11.11.2016, the son of the complainant intimated the OP No.1 in writing regarding the aforesaid accident as his father was not feeling well. It is further averred that the complainant had already handed over medical records to OP No.1 as well to its surveyor Sh.S.P.Singh. The surveyor inspected the vehicle and prepared the estimate for repair of vehicle to the tune of Rs.10,00,000/- and the vehicle is lying parked at Malkit Agro Nabha .It is further averred that son of the complainant time and again visited OP No.1 for releasing the amount of claim but always the OPs gave him fake assurance. It is averred that on 19.1.2017 the complainant received email for certain documents and clarification and the complainant duly replied the same. It is averred that since the day of accident the vehicle of the complainant is lying parked and has not been repaired so far due to non release of claim by OP No.1 and he is suffering loss. It is further averred that due to non release of claim amount, the complainant is unable to derive income from combine and to pay the installment and the OP no.1 is deliberately delaying the matter. Ultimately the complainant sent legal notice cum reply to OP No.1 on 29.4.2017 for doing the needful but to no effect. There is thus clear cut deficiency of service on the part of OPs which caused mental agony, pain and physical harassment to the complainant. Hence this complaint with the prayer to accept the same by giving direction to the OP No.1 to release the amount of claim of Rs.10,00,000/-for repair of vehicle in question; to pay Rs.2,00,000/-as compensation alongwith any other relief which this Commission may deem fit.
- Notice of the complaint was duly served upon the OPs. OP No.1 appeared through counsel and contested the complaint by filing written reply while OP No.2 did not appear and was accordingly proceeded against ex-parte.
- In the written reply filed by OP No.1 preliminary objections have been raised; that the present complaint is false, vexatious and has been filed with a malafide intention and is liable to be dismissed. It is submitted that the claim of the complainant has already been repudiated by OP No.1 due to concealment and fraud played by the complainant and letter dated 19.6.2017 was duly sent to the complainant in this regard. It is further submitted that the complainant had taken insurance policy FCV/12210774/91/06/004065 pertaining to the vehicle in dispute by playing fraud with the OP. It is further submitted that at the time of taking the aforesaid policy of the vehicle in question, the complainant produced one insurance policy bearing No.40740031/16/3600001982 alleged to be issued by the National Insurance Company for the period from 1.7.2015 to 30.6.2016 for getting the renewal of the said insurance policy pertaining to the vehicle in dispute. The OPs issued the renewal policy of the vehicle in dispute on the basis of earlier policy in good faith but later, on verifying the earlier policy from National Insurance Company, it came to know that the policy bearing No.40740031/16/3600001982 was a fake one. So the present policy in question was taken by the complainant by concealing material facts. So the present insurance contract became void. Further objections are that the complainant has not come to this Commission with clean hands; that the loss was occurred on 10.11.2016 and the claim was intimated to the OP on 20.12.2016; that the complainant is estopped by his own acts and conducts from filing the present complaint and that the complainant is not a consumer within the definition of the Act.
- On merits, it is pleaded that the complainant has taken the insurance policy by playing fraud with the OP. It is denied that the vehicle met with an accident on 10.11.2016 as the surveyor appointed by the OP found that the damage found in the vehicle was not fresh and was rusted. It is pleaded that the vehicle was got dismantled by the complainant before the inspection of the surveyor. It is pleaded that the loss was assessed @ Rs.3,46,500/-but the same is not payable due to the fraud played by the complainant with the OP. Further the OP has reiterated the facts as raised in the preliminary objections which are not repeated for the sake of brevity. After denying all other averments, the OP has prayed for the dismissal of the complaint.
- In support of the complaint, the ld. counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant, Ex.CB affidavit of Sh.Surinder Pal Singh alongwith documents Exs.C1 to C37 and closed the evidence.
- On the other hand, the ld. counsel for OP No.1 has tendered in evidence Ex.OPA affidavit of Smt.Shivali Sharma, Assistant Manager, Ex.OPB affidavit of S.P.Singh, Surveyor, loss assessor and valuer alongwith documents Exs.OP1 to OP32 and closed the evidence.
- We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
- The ld. counsel has argued that the deceased Sukhdev Singh was owner of Malkit Combine bearing registration No.PB-11-BN-1530.The ld. counsel further argued that he got the same comprehensively insured with the OP for the period from 1.7.2016 to 30.7.2017. The ld. counsel further argued that the complainant got the combine financed from Financial institution. The ld. counsel further argued that on 10.11.2016, combine met with an accident on Samana - Patran Road at about 10.30PM.The FIR was not lodged as there was no third party damage. The ld. counsel further argued that the combine was damaged and photographs are on the file. The ld. counsel further argued that Amanpreet Singh son of the complainant, on the next date i.e. 11.11.2016 intimated OP No.1 in writing regarding the accident as his father was not feeling well. The ld. counsel further argued that surveyor has duly inspected the spot and prepared the estimate of Rs.10Lakh. The ld. counsel further argued that on 10.12.2016 son of the complainant visited OP No.1 to enquire about the status of claim but OP told him that complainant himself has not intimated them so there was violation of policy. The ld. counsel further argued that from the day of accident i.e. 10.11.2016 the vehicle is lying parked and has not been repaired and the OP has not given the claim amount. In support of his submissions, the ld. counsel has relied upon the citations Anjani Gupta Vs. Future Generally India Insurance Company 2018(1) C.P.R. 522, wherein it has been held : Consumer Protection Act,1986 Sections 12,15 and 21(b) Insurance –Repudiation of vehicle accident claim- Complaint resisted by the insurer primarily on the ground that the complainant had played a fraud upon it by obtaining a No claim in the previous year, in respect of the same vehicle-Claim allowed by the District Forum, but dismissed by the State Commission, hence revision-Respondent insurer had an opportunity to verify the correctness or otherwise of the declaration made by the petitioner/complainant by making necessary enquiry from the concerned insurer-Held, that having not been done, the complainant is entitled to reimbursement of the loss sustained by him, subject of course to proportionate deduction. Further the ld. counsel has relied upon United Insurance Co. Ltd. Vs. Et.Trav Aids Pvt. Ltd. 2017(3) Law Herald(SC) 2288, wherein it has been held by the Hon’ble National Commission, New Delhi : Consumer Protection Act,1986, Section 12 Vehicle Insurance-Stolen of vehicle –appointment of surveyor-repudiation of claim- alleged deficiency in service-Complaint filed-Allowed by State Commission-Hence, revision petition-Allegations that claimant made wrong declaration about no claim Bonus at the time of taking policy, therefore, claim was not maintainable-Remarks stated to have been written by Insurance Company on the letter sent by the petitioner, do not say that any claim was paid by the previous insurance company to the complainant-Therefore, in the absence of any conclusive evidence on the issue it cannot be stated that complainant obtained any claim from the previous insurance company-Claim of NCB made at the time of obtaining the policy from the petitioner does not seem to be irregular-Complaint cannot be deprived of his claim under the current policy-Hence, order passed by Consumer Fora belows, upheld-Revision dismissed.” Further in the case of New India Assurance Co. Ltd. Vs. Shinder Pal Singh & Anr. III(2017)CPJ 559 (NC), it has been held : Consumer Protection Act,1986-Sections 2(1)(g), 21(b)-Insurance-Concealment and misrepresentation of facts-False declaration in proposal form-Insurance company failed to seek verification of declaration given by insured in support of his plea for no claim bonus, within 21 days of issue of insurance cover as envisaged in GR 27 of Indian Motor Tariff-However, as complainant had paid 20% less premium, equity demands that insurance company should have allowed insurance claim on pro rata basis i.e. by reducing entitlement under claim by 20% which amounts to Rs.3,43,200/-.”
- On the other hand, the ld. counsel for the OP has argued that the complainant Sukhdev Singh has played fraud with the OP as his policy was roll over and previous policy was found vague. The ld. counsel further argued that there is no document on the file to show that the accident took place and combine was damaged. The ld. counsel further argued that as per the complainant it was over damaged and the accident never took place during the policy in question. The ld. counsel further argued that the fraud has been played. In support of his submission, the ld. counsel has relied upon the citation Reliance Life Insurance Co. Ltd. & Anr. Vs. Rekhaben Nareshbhai Rathod Civil Appeal No.4261 of 2019 (arising out of SLP ( c ) No.14312 of 2015) in which it has been held by Hon’ble Supreme Court that suppression of facts in the proposal form is voidable.
- Sukhdev Singh has tendered his affidavit, Ex.CA and he has deposed as per the complaint.Ex.C1 is the registration certificate,Ex.C2 is the insurance policy of the combine in the name of Sukhdev Singh s/o Jeet Singh valid from 1.7.2016 to 30.6 .2017 and amount of Rs.18.228/- was paid,Ex.C4 is photograph,Ex.C5 is intimation letter dated 11.11.2016 by Amanpreet Singh s/o Sukhdev Singh to the insurance company. In this letter, it is submitted that combine of his father met with an accident on 10.11.2016 and his father is not feeling well and the vehicle is standing at the spot.Ex.C6 is medical record of Sukhdev Singh dated 23.11.2016, Ex.C7 to Ex.C28 are medical reports of Sukhdev Singh, Ex.C24 is letter written by Sukhdev Singh to Insurance company,Ex.C27 is reply to legal notice, Ex.C28 is another legal notice,Ex.C29 is postal receipt, Exs.C33 to C37 are the photographs. Sh.Surinder Pal Singh has also tendered his affidavit, Ex.CB .
- On the other hand Shivali Sharma, Asstt. Manager has tendered her affidavit, Ex.OPA and she has deposed as per the written statement,Ex.OP1 is document of insurance company, vide which complainant was shown to have given 20% no claim bonus but in fact no such bonus was given to the complainant at the time of taking of this insurance policy,Ex.OP2 is insurance policy,Ex.OP4 is the document in which no such claim was given to the complainant. So the insurance company has wrongly stated that vide Ex.OP1 they have given no claim bonus to the complainant,Ex.OP5 is total bifurcation of Rs.18,229/- charged from the complainant Sukhdev Singh in which basic value of the vehicle is shown as Rs.12Lakh and no claim bonus is shown as zero.Ex.OP8 is letter written by the insurance company to Sukhdev Singh vide which the claim was repudiated on 19.6.2017,Ex.OP9 is request letter sent to Sukhdev Singh, Ex.OP10 is also document of insurance company, Ex.OP11 is letter of National Insurance Company , in which they have mentioned that they have not issued any insurance policy to the complainant.
- The ld. counsel for the complainant has made stress on this letter as he has stated that the previous policy of National Insurance Company was false.Ex.OP1 is proposal form in which the previous insurance details is mentioned as National Insurance Company and policy No.401104156391 but in the letter of National Insurance Company, the policy number is mentioned as 40740031/16/3600001982.So there is difference of policy number in both the documents Exs.OP1 and OP11.In Ex.OP1 it is mentioned that 20% no claim bonus was given but in fact no such no claim bonus was given to the complainant when he took the policy of Bharti Axa. It has been clearly held by the Hon’ble National Commission in the case of New India Assurance Co. Ltd. Vs. Shinder Pal Singh & Anr.(supra) that where there is concealment and misrepresentation of facts, repudiation of insurance claim was not justified because insurance company failed to fulfill its obligation under GR 27 of Indian Motor Tariff.
- In the present case the combine in question was duly insured vide Ex.OP2 from 1.7.2016 to 30.6.2017 and it was duly signed by Insurance company and they took the total amount of insurance from the complainant and as per the complainant the accident took place on 10.11.2016.Ex.OP12 is final reminder of letter,Ex.OP13 is also reminder. Ex.OP14 is also letter of Bharti Axa to Sukhdev Singh.Ex.OP16 is important document, it is investigation report in which the particular of insurance company have been mentioned by the surveyor.It is also opined by him that the date , time and place of accident seems to be genuine but details of previous year policy was not verified by the insurance company and the cause of accident is also found to be correct. Ex.OP18 is surveyor fee bill.Ex.OP19 is statement of Sukhdev Singh, Ex.OP22 is affidavit of Sukhdev Singh,Ex.OP23 is letter,Ex.OP24 is claim form, Ex.OP25 is driving licence, Ex.OP26 is RC, Ex.OP27 is bill of Malkit Agro for the purchase of combine, Ex.OP28 is Aadhar card, Ex.OP29 is Election Commission card, Ex.OP30 is medical certificate.
- Sh.S.P.Singh surveyor has also tendered his affidavit, Ex.OPB in support of his survey report. Ex.C32 is also part of surveyor report in which total liability was assessed as Rs.3,46,500/-. This is accompanied by the photographs.
- From all the documents produced on file it is not proved that combine was a total loss. No estimate has been submitted by the complainant to prove that how much amount shall be spent on the repair of the combine. As per the averments of the complainant the combine is total loss but these are without any force as from the photographs it is not clear that the combine was total loss and false arguments were addressed by the ld. counsel for the complainant. In the written statement filed by the insurance company they have stated that the loss was Rs.3,46,500/- but the same is not payable due to fraud played by the complainant with the inception of the policy. The company cannot deny the payment of Rs.3,46,500/- on the basis of fraud as it was incumbent upon the OP to verify the previous policy and the company has shown 20% no claim bonus whereas no payment of bonus was deducted from the insurance policy of Bharti Axa and Bharti Axa charged the entire amount for comprehensive insurance policy.
- As already stated above, there is difference of policy numbers mentioned by the OPs and the letter of National Insurance Company. The ld. counsel for the complainant has cited various judgments in which the Hon’ble National Commission has held that where the OP had an opportunity to verify the correctness or otherwise of the declaration made by the complainant by making necessary enquiry from the concerned insurer and having failed to do so they are liable to reimburse the amount to the complainant.
- The policy was taken for the period from 1.6.2016 to 30.6.2017 and the accident took place on 10.11.2016 and as per the surveyor he had admitted the correctness of accident. So the insurance company cannot say that complainant had played fraud with the present insurance company. Once the insurance company has issued the insurance cover for one year by taking entire amount from the complainant, and the accident has taken place and the surveyor assessed the loss of Rs.3,46,500/- ,they cannot deny the payment of Rs.3,46,500/-.
- The complainant is claiming Rs.12Lakh from the insurance company but they are not entitled to this amount of Rs.12Lakh as they have not submitted any estimate that the combine in question is total loss and as per the admission of the OP in the written statement and the surveyor report on the file, the insurance company is liable to pay Rs.3,46,500/- alongwith interest @6% per annum from the date of repudiation i.e. 9.6.2017.
- So due to our above discussion, keeping in view the law laid down, no fraud has been played by the complainant with the insurance company while taking the insurance policy. Accordingly the complaint is partly allowed and the OP No.1 is directed to pay the amount of Rs.3,46,500/- to the LRs of Sukhdev Singh (since deceased) in equal shares alongwith interest @6% per annum from the date of repudiation of claim till realization. No order as to costs and compensation.
Compliance of the order be made by the OP No.1 within a period of 45 days from the date of the receipt of the certified copy of this order. ANNOUNCED DATED:1.9.2021 Dr.Harman Shergill Sullar Jasjit Singh Bhinder Member President | |
