Delhi

North

CC/82/2023

AKASH YADAV - Complainant(s)

Versus

ICICI LOMBARD GENERAL INSURANCE CO LTD - Opp.Party(s)

30 Apr 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No. 82/2023

In the matter of

Sh.Akash Yadav   

S/o Sunil Kumar Yadav

R/o 3859, Gali Mandir Wali

Pahari Dheeraj, Sadar Bazar-110006                                              …Complainant

         

Versus

ICICI Lombard General Insurance Co.Ltd.

Motor Claim Department

4^th Floor, Red Fort Capital, Parsvnath Towers

Bhai Veer Singh Marg, Gole Market

New Delhi-110001

Head office at :-

414, ICICI Lombard

House Veer Savarkar Marg, Near Siddhi

Vinayak Temple, Main Gate, Prabhadevi

Mumbai-400025, Maharashtra                                                    ...Opposite Party-1

 

The Manager

Motor Claim Department

4^th Floor, Red Fort Capital, Parsvnath Towers

Bhai Veer Singh Marg, Gole Market

New Delhi-110001                                                                     ...Opposite Party-2

ORDER
30/04/2024

Ms.Harpreet Kaur Charya, Member

Jurisdiction of this Commission has been invoked by the complainant, Sh.Akash Yadav against ICICI Lombard General Insurance Co.Ltd. & Ors. as OP.

1. Facts as per the complaint are, the complainant purchased a second hand Honda I-VTec Car bearing No.DL-9C-AC-0160 in 2021 and in continuation of the previous insurance got the same insured with OP vide policy No.3001/246783679/00/000 on 06/05/2022. 
2. The complainant has stated that he had gone to the online portal to fetch the quote by filling all the details which took him to the payment gateway.  No claim had been taken in the previous policy so No Claim Bonus (NCB) was automatically applied. 
3. On 18/11/2022, the insured vehicle was hit by some unknown vehicle when it was parked near the residence of the complainant, resulting in damage.   OP was informed, the complainant was advised to tow the insured vehicle to Cherish Honda workshop by crane for which the complainant paid Rs.4,000/-.
4. Surveyor was appointed and all claim documents were submitted.  Despite inspection the repairs were not approved on the ground that the claim had been denied for misrepresentation of facts. The complainant has alleged that No Claim Bonus of Rs.401/-plus 18% GST was wrongly calculated by their portal which was not informed to the complainant till the date of accident.
5. The complainant has further alleged that in case of NCB the same is to be confirmed by the Insurance Company from the previous insurer and an amount of NCB can be recovered within 90 days from the insured which has not been done in the present case.
6. The workshop Cherish Honda charged Rs.5,000/- as parking charges and again  the complainant had to pay Rs.2,200/- as towing charges upon rejection of the claim.  The complainant has further alleged that he is paying Rs.2,400/- per month as parking charges to DMRC for safe custody till date.
7. A complaint was made to the office of OP on 25/02/2023 which was not replied.  Feeling aggrieved by the non-settlement of his claim, the complainant has prayed for direction to OP to pay Rs.2,78,805/- (Rs.2,58,005/- +Rs.600/- as towing charges + Rs.5,000/- as parking charges paid to the workshop and  Rs.2400/- per month as parking charges to DMRC) and Rs.1,00,000/- as compensation for mental harassment and agony.  
8.  The complainant has annexed the copy of legal notice dated 22/02/2023 alongwith postal receipts; copy of Adhar card; copy of registration certificate; copy of insurance policy by the previous owner; copy of insurance policy purchased by the complainant; photographs of the car before accident; photographs of car after accident; copy of towing receipt dated 21/12/2022; receipt issued by authorised DMRC parking; copy of receipts issued by workshop and repudiation letter dated 04/01/2023.
9. Notice of the present complaint was issued to OP. 
10. Written statement was filed on their behalf.  Several preliminary objections have been raised in defence such as: the complaint is misconceived, false and frivolous; complainant has suppressed material facts,etc.
11. It has been submitted that policy bearing No.3001/246783679/00/000 was issued to the complainant for a period of 08/05/2022 to 07/05/2023.  The policy terms and conditions were explained to the complainant at the time of receipt of proposal and same were served to the complainant alongwith the policy schedule. 
12. It has been submitted that the insured vehicle got hit by unknown vehicle while it was parked outside the home of the complainant and upon intimation claim was registered vide claim no.MOT12954398 and Surveyor was appointed.
13. Upon scrutiny of the documents it was observed that the complainant/insured had availed 20% NCB whereas, he was the second owner of the vehicle and as per the norms of the insurance policy the complainant was not eligible for NCB.  The complainant had given wrong declaration about the NCB to the insurer at the time of renewal of the policy which amounts to misrepresentation and concealment of material facts. 
14. The claim was treated as “No claim” and the same was  communicated vide letter dated 04/01/2023 as the contract of insurance is based on principal law of utmost good faith and party are bound by the terms of the contract .  Thus, there is no deficiency of service on part of OP.  Rest of the contents of the complaint have been denied with the prayer for dismissing the complaint with cost.
15. Rejoinder to the written statement was filed by the complainant, where the contents of the complaint have been repeated and those of the written statement have been denied.
16. Complainant has filed evidence by way of affidavit reiterating the contents of the complaint.  He has relied upon the documents such as:  copy of the Adhar card as Ex.CW1/1; copy of registration certificate as Ex.CW1/2; copy of previous insurance policy as Ex.CW1/3; insurance policy issued by OP as Ex.CW1/4; photographs of the damaged car as Ex.CW1/5; copy of denial letter as Ex.CW1/6; copy of parking receipt issued by Cherished Honda as Ex.CW1/7; copy of receipt for payment of crane charges and parking charges to DMRC as Ex.CW1/8.
17. OP has got examined Sh. Rohan Mishra, Manager Legal.  He has also repeated the contents of the written statement.   
18. We have heard the arguments addressed by the Ld. Counsel for the complainant and Ld. Counsel for the OP.  The complainant is aggrieved by the non-settlement of his claim for repairs vide letter dated 04/01/2023 on the ground “wrong NCB declaration Misrepresentation of facts”.  The factum of claim is not in dispute.  The OP has denied the claim of the complainant on the ground that the complainant has availed the benefit of 20% NCB by misrepresentation and concealment of facts.
19. To decide the issue, the provisions of GR-27 of Indian Motor Tariff need to be taken into consideration which deals with the NCB of insured vehicle as per GR-27 and insured becomes entitled to NCB on renewal of the policy on the expiry of full duration of 12 months. In the event of the  insured, transferring his insurance from one insurer to another insurer, evidence of the NCB entitlement should be provided either in the form of a renewal notice or a letter confirming the NCB entitlement from the previous insurer.  In the absence of above two requirements, NCB may be permitted after obtaining a declaration from the insured.  Thereafter, the insurer allowing the NCB will be obliged to write to the policy issuing office of the previous insurer /transferee within 21 days regarding the NCB who would be obliged to provided information sought within 30 days from the date of receipt of the letter.  In the present case undisputedly the insurance was obtained on 06/05/2022 and the insured vehicle was damaged on 18/11/2022.
20. As per GR-27 of the Indian Motor Tariff the insured can take benefit of No Claim Bonus, only if he provides the information that he had not taken any claim during the previous policy. If the insured does not furnish such information, the insurance Company can take the declaration from the insured and collect information from the previous owner by writing a letter within 21 days failing which it would constitute, the breach of the Indian Motor Tariff on  part of the insurer.  In the instant case the OPs have failed to place on record any evidence that any declaration was taken from the complainant at the time of issuing policy or that any letter was written to the previous insurer within 21 days as required.
21. In the case of “Anjani Gupta versus Future Generali India Insurance Company, II (2018) CPJ 535 (NC) , the Hon’ble National Commission relying on the decision by a Three-Members Bench of the Commission in RP No. 1836 of 2016, Branch Manager, National Insurance Company Ltd. v. Naresh Kumar, decided on 20.2.2017 held:

“(a) The cases in which it is established that the insured by making wrongful declaration has taken benefit of No Claim Bonus and the insurer had means to verify the correctness of the declaration of the insured seeking No Claim Bonus by exercising ordinary diligence of verifying the truthfulness of the claim from the insurer’s own record, Exception to 19 of Indian Contract Act would come into play and the insurer would not be justified in repudiating the insurance claim on the ground of misrepresentation or concealment of fact. However, because the insured had taken benefit of No Claim Bonus and paid fewer premiums, the insurance claim would be reduced proportionately.

(b) In cases of the insured taking the insurance policy of the vehicle from New Insurance Company and it is established that the insured by making wrongful declaration has taken benefit of No Claim Bonus and where the insurer had failed to seek confirmation regarding correctness of the declaration submitted by the insured in support of plea for No Claim Bonus within the stipulated period as provided in GR 27 of Indian Motor Tariff, the insurer would not be justified in repudiating the insurance claim. However, because the insured had taken benefit of No Claim Bonus by making false declaration his insurance claim would be reduced proportionately.”

(c)It would therefore be seen that if No Claim Bonus is wrongfully taken by the insured, the claim would still be payable on a non-standard basis, if the insurer had the means to verify the correctness of the declaration made by the insured, while claiming the No Claim Bonus. In the present case also, the respondent had an opportunity to verify the correctness or otherwise of the declaration made by the petitioner/complainant by making necessary inquiry from the concerned insurer. That having not been done, the complainant is entitled to reimbursement of the loss sustained by him, subject of course to proportionate deduction. Since the No Claim Bonus was availed by the complainant @ 25%, the amount payable to the complainant/petitioner has to be reduced in the same proportion.

22.  In the light of above judgment, OP in the present complaint should have settled the claim by proportionate deduction of the benefit claimed by the Complainant on account of NCB. The non settlement of the claim amounts to deficiency in services.
23.  In para 6 of the complaint, the complainant has stated that on 18/11/2022 when the car was parked near his residence and unknown vehicle hit his car, when he came to the place in the morning where his car was parked he found that the car was totally damaged. This averment has not been denied by OP in their written statement.  In reply on merits it has been submitted by the OP that the contents of para 6 of the complaint are matter of record hence needs no reply, this is deemed admission on part of OP. Thus, the vehicle is to be considered as total loss.
24. The prayer clause as mentioned in the complaint is different from the relief claimed in the complainant’s evidence.  The complainant has added the relief of interest, pendente lite parking charges and litigation expenses without seeking amendment in the prayer clause.  In the case of Messrs. Trojan & Co. Ltd. vs. Rm. N.N. Nagappa Chettiar AIR 1953 SC 235 917 , the Apex Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Apex Court held as under:-

"It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case."

25. Hence, confining to the relief prayed in the complaint and in the facts and circumstances of the present complaint we direct OPs to pay to the complainant:

1. An amount of Rs.2,06,404/- (being the 20% proportionate deduction of  NCB benefit availed by the complainant).
2. We also award Rs.7,200/- (Rs.2,200/-+Rs.5,000/-) paid towards crane/towing charges and Rs.2,400/- per month paid as parking charges to authorized DMRC parking from 22/12/2022 till 21/04/2023 (Ex.CW1/8).
3. We further award compensation of Rs.50,000/- on account of mental harassment and agony.
4. OP is further directed to collect the salvage within 30 days from the date of receipt of this order and Complainant shall cooperate with the Op in collecting the salvage from DMRC parking.

The order be complied within a period of 30 days from the date of receipt of this order.  In case of non-compliance, the complainant shall be entitled to interest @7% p.a. on (a)+(b)+(c) from the date of order till realization.

Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

 

 

(Harpreet Kaur Charya)             Member	(Ashwani Kumar Mehta)                          Member   (Divya Jyoti Jaipuriar)           President