FINAL ORDER/JUDGEMENT
Smt. Sahana Ahmed Basu, Member.
The case of the complainant in a nutshell is that upon purchasing a vehicle on 25.11.2019 the complainant obtained motor insurance from HDFC ERGO General Insurance Company Limited vide Policy NO. 2311203141679900000 having validity from 25.11.2019 to 24.11.2020 upon paying a sum of Rs.18,301/- as and by way of insurance premium. During first year the complainant availed benefits of motor insurance policy and hence a claim was raised and such claim was duly honoured. During second year the complainant renewed the motor insurance with the OP herein vide policy No. 3001/O/210090729/00/001 having validity from 25.11.2020 to 24.11.2021 upon paying a sum of Rs.8,326/-. However, the complainant admittedly made a wrong declaration about No Claim Bonus due to his lack of knowledge. Again the complainant lodged a claim after his vehicle met with an accident on 26.01.2021and the OP informed the complainant that due to non- declaration of No Claim bonus, the claim of the complainant could not be honoured and to get benefit of the existing motor insurance policy , the complainant had to pay an excess amount of Rs.1,038.40/- in connection with the insurance policy existing for the period from 25.11.2020 to 24.11.2021 and immediately thereafter the complainant paid such extra amount of Rs.1,038/- without any dispute and/or demand as he understood his mistake. Consequently the OP updated the policy bond showing all details including extra payment received by them. But in spite of paying the extra amount as directed by the OP, claim of the Complainant was repudiated and in spite of diligent effort followed by representation, the OP did not issue any reply disclosing the reason, if any , for such repudiation. Therefore, the complainant had to pay entire repairing cost of Rs.59,123/- from his own fund . After the insurance company refused to honour the claim of the complainant, several correspondences were made and ultimately the OP failed to justify its action in refusing to honour Complainant’s claim as a result Doctrine of Uberimae fidei comes into action. As such, alleging deficiency in service on the part of the OP the complainant has filed the present complaint petition seeking refund of deposited amount including interest, compensation and litigation cost.
OP did not resist the consumer complaint despite service of notice. No WV is filed by the OP within the statutory period. Thus, the case runs ex parte hearing against OPs.
In support of his case the complainant has tendered evidence supported by an affidavit and also relied on documents annexed with the complaint petition. We have heard argument on merit and have also perused the record.
The admitted fact is that after purchasing a motor vehicle the complainant obtained a motor insurance from HDFC ERGO General Insurance Company Limited vide policy No.2311203141679900000 for the period from 25.11.2019 to 24.11.2019 upon paying a sum of Rs.18,301/- as and by way of insurance premium. During subsistence of the policy bond the complainant availed the facility of the insurance policy in connection with some repair work cost whereof was adjusted and/or recovered from sum assured under the said insurance policy. Upon expiry the said policy the complainant insured the vehicle with the OP vide Policy No. 3001/O/210090729/00/001for the period from 25.11.2020. to 24.11.2021.
Fact remains that at the time of purchase of the policy from the OP the complainant failed to provide details regarding claim made under the previous insurance policy bond issued by HDFC ERGO General Insurance Company Limited and as such the policy bond was issued by the OP with the ‘No Claim Bonus’. Undisputedly, the said vehicle met with an accident on 26.01.2021 under Nanoor P.S. , District-Birbhum and accordingly the complainant submitted a written complaint with Nanoor P.S. vide G.D.E. No. 1050 dated 26.01.2021 . Photocopy of the said G.D.E. furnished by the complainant along with the complainant petition.
On perusal of the documents on record it is observed that for the purpose of bringing the vehicle to the service station at Kolkata the complainant paid a sum of Rs.9,834/- as and by way of towing charges. It is argued by the Ld. Advocate for the complainant that after the vehicle was brought to Kolkata and delivered at the garage of service center the Complainant lodged an insurance claim to avail cashless insurance facility for repair of the vehicle as it was covered by a legally valid insurance policy issued by the OP. Said vehicle was duly assessed by Surveyor appointed by the OP and on the basis of survey report a job card was issued describing details of repair work and value of repair work was assessed at Rs.80,000/- and accordingly the service center made a demand for release of necessary fund . Photocopies of documents relating to survey record , job card and demand messages are annexed by the complainant with the complaint petition are perused by us.Ld. Advocate for the complainant further submitted that on 07.01.2021 the OP informed the Complainant by issuing a letter under reference No. 70121784608 that the insurance claim made by the Complainant cannot be processed due to wrong declaration regarding claim made under previous Policy No. 2311203141679900000issued by HDFC ERGO General Insurance Company Limited and therefore the complainant has to pay an amount of Rs.1038.40/- to avail the benefits under the insurance policy issued by the OP . We have perused the photocopy of the said letter. Upon receiving the letter the complainant paid the amount of Rs.1038.40/- on 04.02.2021 so that he can avail benefits under the insurance policy issued by the OP. The OP acknowledged the aforesaid payment and issued a receipt captioned ‘Endorsement Schedule of Private Car Package Policy’ vide receipt No. 1123767333dated 17.02.2021 disclosing modification in the original policy bond No. 3001/O/210090729/00/001 issued by the OP. We have carefully gone through the photocopies of the NEFT transaction and Endorsement Schedule of Private Car Package Policy issued by the OP. It is also observed by us that in the said Endorsement Schedule of Private Car Package Policy it is mentioned by the OP that: ‘Not withstanding anything to the contrary contained in the policy , it is hereby declared and agreed that the policy stands amended’ and New Value of the said policy is mentioned as Change of No ClaimBonus .Photocopies of the sms dated 25.02.2021 sent by the OP reveal that repairs of the said vehicle of the complainant was approved by the OP undermotor policy claim No.10689073and claim process was ‘going smoothly’ .ButSurveyor of the OP Mr. Kaustab Lahiri sent emails to the complainant on 18.02.2021 stating that :
“We are unable to process the captioned claim no MOTO10689073 subject to void of utmost goodfaith.” Thereafter, issuing a letter dated 28.02.2021(No.2802258274) the OP repudiate the claim of the Complainant on the ground that:
“This with reference to the Claim No. MOT10689073 filed with us for the Policy NO. 3001/O/210090729/00/000. We have perused the documents submitted by you and regret to inform you that your claim cannot be settled for the following reason:
As per verification in order to process the said claim, it has been found that as per the Risk letter/proposal form/ Policy documents you have claimed 20% of No Claim Bonus and declared that there was no claim against your previous policy,(Previous insurer: M/s HDFCErgo General Insurance Co.Ltd)”
Photocopies of the several correspondences between the parties furnished by the complainant which reveal that the Complainant made several attempts to communicate with the OP to resolve the dispute and settle the claim. Ld. Advocate for the Complainant argued that this gesture of the OP violated the Doctrine of Uberrimaefides as well as fall deficient in service.
It is true that no WV has been filed by the OP though several opportunities were given to them for filing WV yet they have failed to file the same and as such the allegation stated in the complaint petition remained unchallenged.
In view of the above circumstances, we can safely state that on failure to file WV by the OP tantamount to admission of the allegations stated in the complaint petition. Letters dated 07.01.2021 and 28.02.2021 clearly reveal that there is a negligence and deficiency in service on the part of the OP .OP intimated the complainant through letter that actual premium payable by the complainant for NCB benefit is Rs.9364/- whereas the premium paid by the complainant is Rs.8326/- and the OP requested the complainant to make balance payment of Rs.1038/- to be entitled to enjoy the claim benefits under the said policy. The Complainant paid the said amount as per instruction of the OP and the OP issued a receipt in respect of that payment. In spite of making such payment the OP repudiate the claim of the complainant without any cogent ground. Ld. Advocate for the complainanthas cited adecision of theHon’ble State Commission : Delhiin the matter ofL& T GENERAL INSURANCE CO. LTD. Vs. SH. SHADI LAL KAPOORin which an observation of the Hon’ble National Commissionis mentioned . In the matter of United India InsuranceCo. Ltdv. M/s Jindal Poly Buttons Ltd. in Revision Petition No. 2920of 2015wherein the insurer repudiated the claim of the insured on the ground that a wrongful representation was made by the insured to the insurer with regard to no claim bonus, in this regard Hon’ble National Commissionhad a look on Section 19 of IndianContract Act 1872 . It is stated there that :
“Section 19 of Indian Contract Actprovides that if the consent to an agreement is caused by coercion, fraud, or misrepresentation, such agreement is voidable at the instance of the parties whose consent was so caused . The relevant section reads as under:
“19. Voidability of agreements without free consent. –When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so cause.
A party to contract, whose consent was caused by fraud or misrepresentation, may , if he thinks fit , insist that the contract shall be performed , and that he shall be put in the position in which he would have been if the representations made had been true .
Exception – If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence.
Explanation – A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practiced, or to whom such misrepresentation was made, does not render a contract voidable.”
Hon’ble National Commission Observed that:
“On reading of the Exception to Section 19 , it is clear that even in the case in which consent was caused by misrepresentation or by silence fraudulently , the contract would not be voidable if the party whose consent was so caused had the means of discovering the truth with ordinary diligence . Therefore , 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 .”
Under the above facts, the gross negligence and deficiency in service on the part of the OP is proved and the complainant is entitled to get relief as prayed for.
Based on the discussion above, we disposed of the instant consumer case in the following terms:-
- OP is directed to make payment of Rs.59,123/- to the complainant .
- OP is further directed to make payment of Rs.25,000/- as compensation for mental agony caused to the complainant due to deficiency in service.
- OP is also directed to pay Rs.15,000/- as cost of litigation to the complainant.
- Above payments shall be made within 06 weeks from the date of this order failing which shall carry interest @9% per annum from the date of the order till realization.
Consumer case is thus allowed Ex parte against the OP and disposed of as per above observation.
Copy of the judgement be supplied to the parties as per rules. Judgement be uploaded on the website of this Commission forthwith for perusal of the parties.
