Future Generali India Insurance Company V/S Surender Singh - Consumer Court Case

Chandigarh

DF-II

CC/385/2014

Surender Singh - Complainant(s)

Versus

Future Generali India Insurance Company - Opp.Party(s)

R.C.Gupta, Adv.

24 Apr 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint No	:	385 of 2014
Date of Institution	:	31.07.2014
Date of Decision	:	24.04.2015

Surender Singh S/o Sh.Rattan Singh, Resident of House No.110, Sector 4, HUDA Colony, Naraingarh.

…..Complainant

Versus

1] Future Generali India Insurance Company, through its Manager, SCO 78-79, 2^nd and 3^rd Floor, Sector-17-C, Chandigarh

2] Claims Officer, Future Generali India Insurance Company, through its Manager, SCO 78-79, 2^nd and 3^rd Floor, Sector 17-C, Chandigarh.

….. Opposite Parties

BEFORE: SH.RAJAN DEWAN PRESIDENT

SH.JASWINDER SINGH SIDHU MEMBER

MRS.PRITI MALHOTRA MEMBER

Argued By: Sh.R.C.Gupta, Counsel for the complainant.

Sh.Vishal Aggarwal, Counsel for the OPs

PER JASWINDER SINGH SIDHU , MEMBER

As per the case of the complainant, his Car bearing Regd. No.HR-04D-6768, duly insured with Opposite Party Insurance Company from 10.2.2013 to 12.2.2014 vide Ann.C-2, unfortunately met with an accident at Naraingarh with another vehicle, while being driven by him and as such damaged. After intimation given to Insurance Company, on their advice, the vehicle was taken to M/s Charisma Gold Wheels (P) Ltd., Chandigarh for assessment of loss and repairs thereof. The Surveyor appointed by the Opposite Party Insurance Company inspected the vehicle at the workshop and he was provided with the estimate of repairs. Thereafter, the vehicle was repaired for which a sum of Rs.2,25,320/- was paid by the complainant vide Ann.C-3 & C-4. It is submitted that the Surveyor and Loss Assessor on the advice of OPs obtained one satisfaction voucher/discharge voucher singed blank by the complainant with an assurance that his claim was fully payable and on execution of discharge voucher, he shall be made payment of the claim. However, surprising the OPs vide letter dated 29.3.2014 illegally and arbitrarily proposed to repudiate the claim and asked for the explanation from the complainant (Ann.C-5), whereas OPs owe an explanation. It is pleaded that infact the OPs were required to call for the confirmation of entitlement of rates of NCB for the particular insured by writing a letter to the previous insurer within 21 days after grant of cover and non-compliance of it shall amount to breach of tariff by them only and they cannot penalize the complainant for that lapse. Therefore, alleging the said repudiation as illegal and deficiency in service, the present complaint has been filed.

2] The Opposite Parties have filed joint reply and admitted the factual matrix of the case i.e. insurance of the vehicle, its having been damaged in an accident during the currency of insurance policy, appointment of Surveyor for assessment of loss, repairs of the vehicle and the payment for repairs being made by the complainant as well as repudiation of the claim filed by the complainant. It is submitted that the Surveyor assessed the liability of the insurance company at Rs.2,21,095/- (Ann.R-2). It is stated that while getting the car insured, the complainant had handed over the earlier policy and had informed that no claim had been taken on the same. Accordingly 20% No Claim Bonus (NCB) was given to the complainant (Ann.R-1). The answering OPs vide letter dated 16.2.2013 sent an enquiry to the previous insurer of the complainant i.e. Oriental Insurance Company Limited, enquiring about the status of claim on the previous policy, but it did not sent any confirmation regard the NCB. However, on verification it was found that the complainant had earlier taken a claim on the earlier policy, which fact was concealed by the complainant. Accordingly, the claim of the complainant/insured was repudiated as he had failed to comply with the conditions of policy and GR 27 of the Indian Motor Tariff Rules (Ann.R-3 & R-4). Rest of the allegations have been denied with a prayer to dismiss the complaint.

3] Parties led evidence in support of their contentions.

4] We have heard the ld.Counsel for the parties and have also perused the record.

5] The complainant has preferred the present complaint against the OPs on the ground that he had subscribed for an insurance policy for his Hyundai Car No.HR-04-D-6768 by paying a premium of Rs.17,170/- vide cover note Ann.C-2 valid for the period 13.2.2013 upto 12.2.2014. The IDV of the vehicle in question was assessed as Rs.5.60 lacs. Unfortunately, on the fateful date of 6.2.2014, the vehicle in question met with an accident at Naraingarh, which was duly intimated to the Opposite Parties. The Surveyor appointed by the OPs assessed the loss to the tune of Rs.2,21,095/- vide Ann.R-2 and approved the claim. The complainant claims to have paid a total of Rs.2,25,320/- vide Ann.C-4 towards the repair cost of the vehicle in question and is aggrieved of the denial of his genuine claim by the Opposite Parties citing the reason of having availed a wrong No Claim Bonus. The complainant claims that denial of his rightful claim amounts to deficiency in service and has prayed for the relief quoted in his complaint.

6] The Opposite Parties have contested the claim of the complainant by declaring that the complainant had availed a 20% No Claim Bonus (NCB) on the insurance policy subscribed by the complainant from them and on seeking the information from the previous insurer i.e. Oriental Insurance Company, Chandigarh, the same was found that the complainant had sought a claim dated 26.8.2012 and therefore, he was not entitled to 20% NCB, which he had wrongly claimed and for such reasons, having claimed an NCB beyond his entitlement, after having suppressed the material information, the complainant has breached the terms & conditions of the policy issued to him, therefore, his claim is not payable and the same was closed as No Claim for fake NCB declaration. The OPs have prayed for the dismissal of the complaint with costs.

7] We have minutely perused the documents placed on record by the parties. The only issue in question is with regard to the subscription of the insurance policy in question on the basis of the cover note bearing No.E2614506 (Ann.C-2) and also the claim of having availed a wrongful NCB to the extent of 20% of the own damage premium by the complainant by signing a declaration to that effect. The Ann.C-2 clearly gives the details of the vehicle in question, the previous insurance policy as well as a 20% NCB to the extent of Rs.3574/- is found calculated. The same cover note also mentions the detail of Smt.Kuldeep Kaur, age 42 years (Wife), but this fact is not detailed in the insurance policy. However, the agent, who had completed the cover note and received the premium amount is shown to be one Mr.Davinder Kumar with intermediary code as 60018522, which clearly indicates that he was the person responsible for completing the contents of the cover note and also taking the signatures of the subscriber on the declaration found printed on the cover note. Ann.R-1, which is the insurance policy also shows the details of Mr.Davinder Kumar Mehta with his mobile number 9896244933 as well as e-mail ID as

GR.27. No Claim Bonus

(a) No Claim Bonus(NCB) can be earned only in the Own Damage section of Policies covering all classes of vehicles but not on Motor Trade Policies (Road Transit Risks / Road Risks / Internal Risks) and policies which cover only Fire and / or Theft Risks. For policies covering Liability with Fire and/or Theft Risks, the NCB will be applicable only on the Fire and / or Theft components of the premium. An insured becomes entitled to NCB only at the renewal of a policy after the expiry of the full duration of 12 months.

xxxxxx xxxxxx xxxxxx

xxxxxx xxxxxx

(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 which the insured 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 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 as 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 I 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.”

9] In the light of aforementioned clause (f) of G.R.27 ibid, it is mandatory for the insurance company to ascertain the status of any claim availed by the proposer from his previous insurer before honouring any such request, while issuing afresh policy, within 21 days. The breach of aforementioned G.R. 27 deserves to be construed against such insurance company, which fails to adhere to such guidelines, in the present case, the Opposite party. The Opposite party has failed to satisfy us on this score as the annexure placed on record by the OPs as Ann.R-5 clearly shows that the Opposite Parties while seeking the information from the previous insurer, did the same after the lapse of 13½ Months after the issuance of the policy for the reasons that the report dated 20.3.2014 found appended on Ann.R-5 is almost 1½ months beyond the date of currency of the policy i.e. 12.2.2014, which clearly indicates the breach of tariff condition by the Opposite Parties.

10] The other relevant aspect about the claim of No Claim Bonus is with regard to the signing of the declaration on the proposal form by the complainant, which has been denied by him and in order to fathom the truth behind this fact, the only best person, who could through light on this issue was Mr.Davinder Kumar Mehta, Agent of the Opposite Parties, who had issued the Cover Note (Ann.C-2). The Opposite Parties have failed to place on record any evidence in support of its pleadings whether the complainant has signed the declaration himself or not. The affidavit of Mr.Davinder Kumar Mehta would have suffice the purpose of leading evidence to that effect. In the absence of any such evidence, the defence of the OPs sound hollow and the same cannot be believed and at the same time deserves to be construed against them. Our such views are fortified by the observations of the Hon’ble National Commission, New Delhi in the case titled as Vijay Somany vs. Reliance General Insurance Company Ltd., R.P. No.3134 of 2013, decided on 13.8.2014 - III(2014) CPJ 576 (NC), wherein the Hon’ble National Commission has held that in the absence of any signatures on declaration, it cannot be inferred that complainant has given any false declaration regarding non-receipt of claim from earlier insurer – Merely because no claim bonus of 25% amount has been allowed by agent of respondent from payable premium, it cannot be inferred that no claim bonus amount was deducted on declaration of petitioner – Change of insurance company not prove intention of fraud – repudiation not justified. The Hon’ble National Commission, while allowing the claim of the complainant, had also awarded an interest @12% per annum on the claim amount.

11] As it is evident that there is only a scribble instead of proper signature by the proposer, therefore, the agent of the OPs responsible for filling-up the cover note has certainly ignored this fact and it was his responsibility to obtain a declaration in the proper format as mentioned in GR 27 of Indian Motor Tariff Regulations. The present case is also squarely covered by the judgment titled as National Insurance Co. Limited Vs. Prem Singh, Vol. IV (2008) CPJ 355, wherein the Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla, while upholding the orders of the District Fora has held that the Agent/ Development Officer were duty bound to obtain a declaration from the insured, as no such declaration was obtained in terms of G.R. 27 of Indian Motor Tariff and the non-settlement of motor accident claim, as assessed by the Surveyor, amounts to deficiency in service. Hence, the act of the Opposite Parties in not settling the rightful claim of the Complainant, which has been duly assessed by the Surveyor to the tune of Rs.2,21,095/- amounts to deficiency in service against it and the present complaint deserves to succeed on this score qua Opposite Parties. However, we feel that an amount of Rs.3574/-, which was charged less on account of NCB in the premium amount, the same deserves to be recovered from the complainant, as it is a public money, and the OPs were entitled to the same.

12] In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant is allowed qua OPs. The Opposite Party are jointly & severally directed as below:-