Haryana

Panchkula

CC/612/2019

AZAD SINGH. - Complainant(s)

Versus

GENERAL MANAGER,M/S RADIAT AUTO'S. - Opp.Party(s)

COMPLAINANT IN PERSON.

03 Aug 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

 

                                                       

Consumer Complaint No	:	612 of 2019
Date of Institution	:	11.11.2019
Date of Decision	:	03.08.2022

 

Azad Singh son of Sh.Prem Singh Resident of House No.53, Adrash Group Housing Building Co.OP Society, Ward No.4, Village Dhamala, Pinjore, District Panchkula, Haryana.

                                                                          ..….Complainant

Versus                                                                  

1.     General Manager, M/s Radiant Auto’s, Plot No.185, Industrial Area, PH-1, Panchkula- 134109, Haryana.

2.     Policy Bazaar.com, Plot No.119, Sector-44, Gurugram-122001 (Haryana).

3.     National Insurance Company, SCO-131, Sector-17, Panchkula-134113(Haryana).

                                                                      ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

 

For the Parties:   Complainant  in person.

                        Sh. Assem Gupta, Advocate for OP No.1.

                        Sh. Faisal Zafar, Advocate for OP No.2.

                        Sh. Kapil Gupta, Advocate for OPs No. 3.

                       

ORDER

(Satpal, President)

 

1.             The brief facts of the present complaint as alleged are that  the complainant had purchased  the car bearing  registration no.HR-49-G-3400 make Tate Tiago, in the year 2017 i.e. 28.06.2017 and was initially insured  with the National Insurance Co. and the said policy was issued by the agency  at the time of purchase of the said car. It is stated that the complainant has further insured his car with National Insurance Co. for the premium of Rs.5492/-through Policy Bazaar.com.  The complainant was asked to provide the details of the car i.e. Registration No. and No. of previous policy etc. and the said detail was provided by the complainant after registering it on the website of policy Bazaar.com.  The  OP No.2 sent the quotation for premium for the car in question online and after being agree,  the complainant made the payment for agreed premium  by way of Debit Card  for a sum of Rs.5,492/-. After making the payment, he was issued the insurance policy which starts from 28.06.2018 to 27.06.2019. The car of the complainant met with an accident with one Motorcycle on 27.05.2019 due to negligent driving of Bike driver, near Ismailabad, Tehsil Pehowa. He dialed the helpline of Policy Bazaar.com i.e. 1800-258-5881 and informed them about the accident and he was attended by Rashmi Shukla. After getting the car released on Superdari, the complainant asked the helpline of OP No.2 and he was advised by OP No.2 to hand over his car to the Radiant Motors Panchkula on his own expenses. The complainant delivered the car to the workshop by spending Rs.6,000/- as carriage charges and the said amount was not refunded by the Insurance Co. to him even after making repeated requests. The car was handed over to the OP no.1 on 26.06.2019 and the complainant was assured for delivery of his car on 10.07.2019 and he is to make the estimated depreciation for a sum of Rs.10,000/- to 12,000/-. It is further submitted that the estimate for the repair of the car was not given to the complainant at the time of handing over the car in the workshop of OP No.1. The car in question was not delivered on the date fixed as some parts had not been received by them.  The complainant then have a conversation with the OP No.2, it come to the notice that some dispute with regard to the claim for repair of the car due to the discrepancy in the insurance policy. Thereafter, he visited the office of OPs No.2 & 3 with regard to deficiency of premium for the insurance of his car. On the same day i.e. 05.9.2019, he had a detailed telephonic, conversation on the helpline of OP no.2 and after conversation the complainant received an email message for making the payment of Rs.983/- on account of deficiency of premium of insurance and the complainant deposited the same. After making payment of additional premium, the complainant visited the workshop of OP no.3 on the same day for taking delivery of his car but the officials of OP no.3 had made detailed conversation with OP No.2 as well as OP No.1, it came out that the said additional premium would be valid for the future claims. The OP No.1 verbally told to him that he has to make the payment of R.s 88,800/- for repair charges for his car and he has to settle his claim with OP No.3 & OP No.2 at his own. Since the OPs No.2 & 3 had received the premium of insurance policy and later on received an amount of Rs.983/- on account of additional premium for the same policy but even then they are enforcing him to make the payment to OP no.1 for repair of his car and the amount/ expenses occurred upon the repair of the car would not be reimbursed to the complainant or then 40% of the cost of repair. Due to the intentionally delay by the OPs, in delivery of the repaired car, the complainant has suffered a great financial loss and mental agony, harassment; hence, the present complaint.

2.             Upon notice, OP No.1 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being vexatious, vague; no locus-sandi; estoppels; the complainant has not come with clean hands; suppressed the material facts; no jurisdiction; complainant does not fall under the definition of consumer. It is stated that the car of the complainant was met with an accident on 27.05.2019 and he visited the workshop for repairing his vehicle/car. As per insurance policy provided by the complainant himself, the terms and conditions for depreciation value of the vehicle was on a higher side and the said fact was disclosed by it to him. The complainant assured that he shall pay the difference of amount i.e. total amount incurred on repair of vehicle and amount reimbursed by the insurance company and thereafter, the complainant requested it to repair the vehicle. The OP no.1 made sincere efforts to repair the vehicle of the complainant, after arranging the genuine new parts from the vendors and repaired the vehicle. It is also pertinent to mention here that the complainant often visited the workshop of OP no.1, from time to time and all the repair work was done under his approvals. After the vehicle of the complainant was repaired, he came to pick the vehicle and was fully satisfied with the services of OP No.1 and he also signed a satisfactory letter dated 03.08.2019 but the vehicle could not be delivered/handed over the vehicle to the complainant, as the claim of the vehicle was not passed by the concerned Insurance Company. The OP No.1 has spent a huge amount of Rs.88,824/- from their own pocket, in repairing the vehicle. The OP no.1 is also incurring expenses for taking care of the vehicle and shall also claim parking charges @ Rs.200/- per day from the complainant, as the same is also mentioned on the worksheet/job card opened, against the repair of the vehicle. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.1 and as such, the complaint of the complainant is liable to be dismissed.

                Upon notice, OP No.2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable. It is stated that the OP No.2 operates by facilitating comparison of various products of different insurers on its web portal “policy bazaar.com” and thereby providing its customers with an opportunity to view, compare and then decide as to what product/ policy suits their requirements. The OP No.2 only acts as an intermediary between the policyholder and insurance company. The complainant visited the website of the OP no.2 and after filling in the details over the website, he compared various insurance policies as per his requirements and opted/purchased the policy in question from OP No.3 on the terms and conditions agreed upon between them.  He paid the premium to the OP No.3 and thereafter, OP No.3 issued the insurance policy to the complainant. It is stated that the complainant had first conversation with the OP No.2 on 09.06.2019 when he informed it that he has wrongly availed NCB of 50% and he wishes to get the correction done in his insurance policy. The complainant had obtained the insurance policy by availing NCB of 50% whereas he was not entitled to the same. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.2 and as such, the complaint of the complainant is liable to be dismissed.

                Upon notice, OP No.3 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being vexatious, vague; no jurisdiction and complainant does not fall under the definition of consumer. It is stated that the complainant has purchased insurance policy for insuring  his new Tata Motors car from it by paying  the premium of Rs.11,352/- through Tata Motors, Secunderabad and the OP issued Policy no.55270031176160057672 w.e.f. 28.06.2017 to 27.06.2018 subject to terms and conditions of the policy. Thereafter, before expiry of the aforesaid policy, on 25.6.2018, the complainant got renewed  online his insurance policy through policy bazaar insurance Web Aggregator Pvt. Ltd./OP No.2 by wrong declaration of No-claim bonus(NCB) of 50% instead of 20% valid w.e.f. 28.06.2018 to 27.06.2019 by paying the premium of Rs.5,492/- only.  On 27.06.2019, the complainant lodged a claim with OP No.3 for damage to his vehicle, immediately thereafter the OP has deputed Engineer, Sh. Vinod Kumar Sharma, Surveyors & Loss Assessors to assess his detailed Motor Survey(Final) Report dated 24.08.2019 in the office of OP No.3. In this survey report, the surveyor assessed the loss to the tune of Rs.64712/- subject to terms and conditions of the Insurance Policy. Thereafter, the claim of the complainant was processes by the competent authority of the OP and observed that he has got renewed online his previous insurance policy through OP No.2 by wrong declaration of no-claim bonus (NCB) of 50% instead of 20%. Therefore, the claim of the complainant was rightly repudiated as per GR-27 of India Motor Tariff by the OP no.3 and informed to the complainant vide letter dated 05.11.2019. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.3 and as such, the complaint of the complainant is liable to be dismissed.

3.             The complainant has tendered affidavit as Annexure C-A along with document Annexure C-1 to C-7 and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.1 has tendered affidavit Annexure R1/A along with documents Annexure R-1/1 to R-1/3 and closed the evidence.  The ld. counsel for the OP No.3 has tendered affidavits Annexure R3/A & R3/B along with documents Annexure R-3/1 to R-3/5 and closed the evidence.

4.             We have heard the complainant as well as learned counsels for the OPs No.1 to 3 and gone through the entire record available on file including written arguments filed by the OP No.1 & OP No.3, minutely and carefully.

5.             Admittedly, the car bearing no.HR-49-G-3400 of the complainant was, initially, insured with OP no.3 vide policy no.55270031176160057672(Annexure C-1) w.e.f. from 28.06.2017 to 27.06.2018 on the basis of payment of premium amounting to Rs.11,352/- and thereafter, the said car was insured with OP No.3 vide policy no.36140031186100121208(Annexure C-2) w.e.f. 28.06.2018 to 27.06.2019 through Policy Bazaar.com i.e. OP no.2 on the basis of payment of premium of Rs.5,492/-.Undisputedly, during the subsistence of the aforesaid policy (Annexure C-2), the said car met with an accident on 27.05.2019 and the claim was lodged with OP no.3 by the complainant seeking the indemnification of the losses caused to the said car in the accident.

6.             The OP no.3 has repudiated the claim (Annexure R-3/3) vide letter dated 16.08.2019(Annexure R-3/3) on the ground that the complainant had availed the policy mentioning no claim bonus as 50% instead of 20%. The OP No.3 has justified  its act of repudiation vide Annexure R-3/4 of the claim stating that the complainant had wrongly availed the benefit of no claim bonus of 50% fraudulently in place of 20%. The learned counsel for OP No.3 has vehemently contended that the claim in question was rightly repudiated by OP no.3 as per GR-27 of India Motor Tariff, wherein it is provided that in case, the claim is reported in a policy with wrong NCB, then, all benefits under the policy would stand forfeited. It is contended that there was no lapse and deficiency on the part of the OP no.3 as Engineer, Sh.Vinod Kumar Sharma, Surveyor and Loss Assessor was immediately deputed to assess the loss and submit his report. It is contended that the said surveyor assessed the loss to the vehicle to the tune of Rs.64,712/- vide his report(Annexure R-3/1). Concluding the arguments, the learned counsel has prayed for dismissal of the complaint being baseless and meritless.

7.             The OP No.2, i.e. Policy Bazaar.com who had facilitated the complainant in providing the insurance policy in question from OP no.3, has resisted the claim primarily on the ground that veracity of inputs provided by the consumer on its website cannot be checked as the OP no.2 neither has any mechanism to check the veracity of the contents filled by the customer over its website nor can it be verified. It is contended that the result shown on the website of OP No.2 depends upon the inputs provided by the consumer. It is further contended that the complainant was duty bound to disclose truthfully all the details over the website but he filed the false details so as to avail the undue advantage by claiming higher NCB. It is vehemently contended that the complainant had first conversation with the OP No.2 only on 09.06.2019 and prior to it, the complainant did not communicate with the officials of the OP No.2. Concluding the arguments, our attention was drawn towards Annexure mark ‘A’, wherein the complainant was asked to ensure that the previous NCB value matches one mentioned on the previous policy. Reliance has been placed on the following case laws:-

1. P.C.Chacko and Ors. Vs. Chairman, Life Insurance Corporation of India & Ors. in Civil appeal no.5322 of 2007 decided on 20.11.2017(SC).

 

2. Branch Manager, Bajaj Allianz Life Insurance Company Ltd. and Ors. Vs. Dalbir Kaur in Civil Appeal no.3397 of 2020 decided on 09.10.2020(SC).

 

3. Life Insurance Corporation of India & Ors. Vs. Sunita in Civil Appellate Jurisdiction Civil Appeal No.6537 of 2021 decided on 29.10.2021(SC)

 

 

8.             The learned counsel for OP No.1 reiterating the averments made in the complaint as well as in the written submissions has prayed for dismissal of the complaint qua the OP No.1 on the ground that there was no lapse and deficiency on his part.

9.             Since the OP No.3 has raised the issue of non compliance of GR-27 of Indian Motor Tariff, we deem it expedient to reproduce the relevant part of portion of the same as under:- 

“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 falling  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”.

10.              A perusal of above makes it evident that after the issuance of the insurance policy, it was incumbent upon the OP No.3 to make verification about the entitlement of the complainant  qua No Claim Bonus within a mandatory period of 21 days but in the present case, no such verification was carried out  by the OP No.3 within the mandatory period of 21 days and thus, OP No.3 itself has failed to make compliance of the provisions contained in GR-27, which obviously amounts to breach of tariff on the part of the insurance company and disentitle it to take shelter of the plea of mis-representation of the facts on the part of the complainant. Moreover,  the OP no.3 was not to seek the information  qua the entitlement of NCB of the complainant from any other company as vehicle was insured  in the previous year vide policy no.55270031176160057672 (Annexure C-1) w.e.f. from 28.06.2017 to 27.06.2018. Needless to mention here that the OP no.3 could easily have detected the wrong declaration in the proposal form qua the entitlement of the complainant of NCB as vehicle was insured with it in the previous year. The Op No.3 has failed to put in place the robust and dynamic detection mechanism so as to find out the wrong declaration in the proposal form qua the NCB.

11.              We may safely place reliance upon the order dated 06.10.2020 passed by the Hon’ble State Commission(Delhi) in F.A.No.226 of 2016 titled as L & T General Insurance Co. Ltd. Vs. Sh. Shadi Lal Kapoor, wherein in para no.15 it is held as under:-

“Keeping in  mind  the facts and circumstances of the present case, it is clear that the appellant did not comply with the requirements under GR 27 of the Indian Motor Tariff, else the issue related to misrepresentation of No Claim Bonus would have been raised and settled. In fact, the onus was on the appellant to check from the previous insurer about the status of the no claim bonus of the insured-respondent, which the appellant failed to do”.

12.            In the aforementioned factual and legal position, it is evident that the OP No.3 had been deficient while repudiating the claim in question and the complainant is entitled to relief. The complaint is dismissed qua OP No.1 as complainant was satisfied with his service as evident from Annexure R-1/1 and R-1/3. The present complaint is also dismissed qua OP No.2 as no deficiency has been found on its part.

13.            Coming to the relief, it is found that the surveyor vide his report(Annexure R-3/1) has assessed the loss to the vehicle as  Rs.64,712/-. The complainant has not disputed the correctness of the said assessment made by surveyor vide his report(Annexure R-3/1); therefore, the complainant is entitled to the said assessed  amount of Rs.64,712/- alongwith interest @9% per annum w.e.f. the date of filing of the complaint till its realization. However, as per version of the OP No.1, an expenses to the tune of Rs.88,824/- has been incurred and in this regard repair bill(Annexure R-1/1) is available on record.

14.            Vide our interim order dated 04.03.2020, a sum of Rs.20,000/- had already been paid by the complainant to OP No.1 and thus, the OP No.1 is entitled to the balance sum of Rs. 68,824/- only.

15.            As a sequel to the above discussion, we partly allow the present complaint with the following directions:-

1.     The complainant is entitled to the amount of Rs.64,712/- as assessed by the surveyor vide his report(Annexure R-3/1) alongwith interest @9% per annum w.e.f. the date of filing of the complaint till its realization. The OP No.3 is directed, firstly, to clear the balance payment amounting to Rs.68,824/- of OP No.1 and the remaining  amount after making the payment to the OP No.1, shall be paid to the complainant.
2.     The OP No.3 is also directed to make the payment of sum of Rs.5,000/-each to the OP No.1 as well as the complainant on account of mental agony,  harassment and litigation charges.

 

16.            The OP No.3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OP No.3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 03.08.2022

 

 

 

          Dr.Sushma Garg         Dr. Pawan Kumar Saini             Satpal

                  Member                  Member                          President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President