This revision petition has been filed by the petitioner Tata AIG General Insurance Company Ltd. against the order dated 16.10.2014 of the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (hereinafter referred as State Commission) passed in First Appeal No. FA/12/872 .

2.     Brief facts of the case are that complainant submitted the proposal for insurance of his vehicle telephonically online to OP/petitioner insurance company and premium was paid on 25.10.2008 at 08.30 p.m. The policy was issued with validity from 26.10.2008 to 25.10.2009. The petitioner received an intimation telephonically on 12.11.2008 from father of the insured that the vehicle had met with an accident on 25.10.2008. The FIR was lodged on 27.10.2008. A surveyor was immediately appointed by the insurance company and he submitted his report on 30.11.2008.  The surveyor gave his finding that the policy was obtained by stating wrong facts and the accident had occurred prior to the commencing of the insurance policy. Hence, claim was repudiated vide letter dated 31.12.2008.

3.   The complainant filed a consumer complaint before the District Consumer Disputes Redressal Forum, Thane (hereinafter referred as 'District Forum’) which was allowed vide its order dated 27.6.2012 as under:

“3.  Opposite Party should  render the IDV of Rs,3,35,280/- declared by the complainant after applying proper depreciation and interest @ 9% p.a. on the balance amount from 31.12.2008 till its realization.

4.  Opposite Party should pay to complainant an amount of Rs.10,000/- towards physical and mental agony and Rs.1,450/- towards Misc. Expenses.

5.  Opposite Party should take a note that the Opposite Party should comply the aforesaid order within 30 days from the receipt of the award copy otherwise the rate of interest on the awarded amount will be 12% instead of 9% p.a.”

4.     Aggrieved by the order of the District Forum, the petitioner preferred an appeal before the State Commission which was dismissed vide its order dated 16.10.2014 which reads as follows:

6.       Learned District Forum has rightly observed that the risk commenced under the insurance policy immediately after payment of premium as provided under Sub-Section 2 of Section 64 VB of the Insurance Act, 1938.  In the case on hand, admittedly, amount of premium was paid on 25/10/2008 by cheque and the receipt was issued accordingly.  Therefore, the risk commences after receipt of payment of premium either paid in cash or by cheque as per the provisions of the Insurance Act.  On this count also, appeal has to fail since the risk commenced in this case has to be effective from 25/10/2008.  Now, there is a question of deducting the salvage since it is a case of total loss.  Learned District Forum has observed that the ill-fated vehicle was surveyed by Mr.R.B. Joshi who reported the case as “Total Loss” and he also reported that the vehicle is beyond the repairs.  However, said Survey Report is not available in the appeal compilation.  Quantification of salvage is not available on record.  Therefore, we need not go into all these details.

7.       The complainant relied on the order of the Hon’ble National Commission in the matter of New India Assurance Co. Ltd. V/s. Integrated Organic Pvt. Ltd. in First Appeal No.10 of 1995 decided on 20/09/2001.  Ratio of this case though may not be exactly required to be considered since in that case the amount of premium received on behalf of the Insurance Company by their Agent which was deposited late though the insured paid the said amount well in time and the Insurance Cover Note was issued stating that the insurance cover commenced from 04/03/1992 though the accident took place on 05/03/1992.  Here, case on hand is crystal clear that admittedly the amount of premium was paid on 25/10/2008 and accident took place on 25/10/2008. 

8.  In view of these observations, appeal must fail as there is no merit.  We hold accordingly and pass the following order:-

Order:-

1. Appeal stands dismissed.

2. No order as to costs.”

5.      Hence, the revision petition.

6.      Heard the ld. counsel for both the parties and perused the record.

7.      The ld. counsel for the petitioner stated that the District Forum has decided the complaint on the basis of the view that the policy commences from the date of receipt of premium amount.  Though the premium was received at 8.30 p.m. on 25.10.2008 and the accident also happened on 25.10.2008, yet the District Forum has allowed the claim on the basis of date of receipt of premium which is totally unjustified. All the input for the policy was given by the complainant telephonically and he himself requested for issuing the policy w.e.f. 26.10.2008 and accordingly, the policy was issued commencing from 26.10.2008. There are many judgments of Hon'ble Supreme Court and of this Commission that the policy has to be interpreted as per the terms and conditions and as per the written contents of the policy and courts should not interpret the policy on the basis of their own views. The State Commission has also not considered this fact and has dismissed the appeal filed by the petitioner. The ld. counsel further mentioned that the proposal form clearly detailed that the previous insurance with National Insurance Company Ltd. With Policy no.253100/31/07/6199992453 expired on 25.10.2008, and that no claim had been made under the said policy and the insured was entitled to 20% NCB (No Claim Bonus). However, it was later found that the policy mentioned in the aforesaid proposal form was wrong and was related to some other vehicle. In fact, it was discovered that the vehicle of the complainant was insured under policy no.  01505533733 issued by the Bajaj Allianz Insurance Company Ltd. Which expired on 11.9.2008. Thus, it is clear that the complainant purposely and knowingly gave the wrong information about previous policy so that the current policy may be  issued w.e.f. 26.10.2008 and also wrongly claimed the NCB of 20%. Thus, the policy was got issued fraudulently by the complainant based on wrong facts. Both the fora below have wrongly allowed the claim of the complainant.

8.      The learned counsel for the respondent/complainant stated that the receipt of the premium was issued at 20.34 hrs. on 25.10.2008  and the accident happened  at 10.30 p.m. on the same date.  This is the settled law that policy starts from the payment of premium as given in the Insurance  Act, 1938. Both the fora below have given concurrent finding on this issue and this Commission had limited powers under the provisions of revisionary jurisdiction. Hence, the revision petition needs to be dismissed.

9.        We have carefully considered the arguments advanced by both the sides and have examined the record. The policy in question mentions clearly that period of insurance is from 00.01 hrs. on 26.10.2008 to midnight on 25.10.2009.  The policy also allowed 20% deduction in the premium on the basis of NCB claimed. From the facts, it is evident that the complainant gave wrong information about previous policy relating to his vehicle in the proposal form and based on the information provided, that his previous insurance was expiring on 25.10.2008, the OP/petitioner issued the new policy w.e.f. 26.10.2008 granting him the benefit of NCB of 20%. During the arguments, learned counsel for the respondent did not clarify anything on this issue. This Commission has held in many of its judgments for example, R.P. No.1255 of 2009,  Tata AIG Insurance Company Ltd. vs. Guljari Singh, decided on 26.02.2010 (NC) that if the wrong NCB has been claimed then the policy becomes vitiated and the benefit of insurance claim is forfeited.  In this case, clearly the benefit of NCB claim has been claimed on wrong facts and therefore, policy of insurance has become vitiated ab-anitio and therefore no claim is payable under this policy.

10.    Both the fora below have relied upon the judgments of this Commission in New India Assurance Company Ltd. vs. Integrated Organic Pvt. Ltd. in First Appeal No.10 of 1995 decided on 29.09.2001. However, the facts in that case are different.  In that case, the accident has occurred on 5.3.1992, whereas the policy was valid from 4.3.1992. On the contrary, in the present case, the validity of the policy commences from 26.10.2008 whereas the accident has occurred on 25.10.2008. Thus judgement of this Commission in New India Assurance Company Ltd. vs. Integrated Organic Pvt. Ltd.(supra) cannot be applied in the present case. Thus, the fora below have erred in appreciating the facts and legal position in this regard. The State Commission observed that the risk has commenced from the date of payment of premium as per sub section 2 of Section 64VB of the Insurance Act, 1938. A perusal to this section shows that an insurance company is authorised to issue the policy after accepting the premium either by cash or in cheque and the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque. It does not clearly state that the insurance policy shall necessarily become effective from the date of receipt of the premium in the form of cash or by cheque.

11.   Clearly, in the present case, the policy states that the period of validity is from 26.10.2008 to 25.10.2009. We agree with the assertion  of the ld. counsel for the petitioner that the policy is to be interpreted in terms  of its wordings and contents only. The Hon'ble Supreme Court in the case of Deoker Exports Pvt. Ltd. vs.  New India Assurance Company Ltd. (2008)/INSC 1619(23 September 2008), has held that a policy of insurance is a contract based on an offer (Proposal) and an acceptance. It has been further held that in a contract of insurance, rights and obligations are strictly governed by the policy of insurance.

12.   Relying on the above judgment, it is clearly seen that accident had occurred on 25.10.2008 and the policy commences from 26.10.2008, therefore, it cannot be covered under the policy in question.

13.    Based on the above discussion, we find merit in the revision petition filed by the petitioner - Tata AIG Insurance Company Ltd. and the same is allowed.  Accordingly, the order dated 16.10.2014 of the State Commission, and order dated 27.06.2012 of District Forum are set aside. Consequently, the complaint also stands dismissed.

14. There shall be no order as to costs.