PER SHRI. S. G. CHABUKSWAR – HON’BLE  MEMBER

1)        This is a complaint for the reliefs of declaration that, Opposite Party is guilty and deficiency in service and unfair trade practice, vehicle repairing charges Rs.1,78,045/- with interest @ 24% p.a. from 24/11/2010, compensation Rs.5,00,000/- for mental agony and Rs.30,000/- cost of the complaint

2)        The case of Complainant in short is as under –

The Complainant has purchased vehicle Ford Endeavour 4 x 2 from S C Ford for consideration of Rs.15,04,500/- on 24/07/2007.  The Complainant had obtained the insurance policy of Tata AIG General Insurance Company Ltd. Thereafter, the Complainant changed the insurance from Tata AIG General Insurance Co. Ltd. to “Bharati AXA General Insurance Co. Ltd.  Thereafter, Complainant decided to opt the insurance policy of Opposite Party. Opposite Party had provided information of the proposed insurance policy through e-mail on 28/06/2010, two e-mail dtd.09/07/2010 and issued Cover Note.  Accordingly, the Complainant paid premium Rs.11,217/- to the Opposite Party on 15/07/2010. Opposite Party issued to the Complainant Private Car Package Policy bearing No.3001/6043093/00/000 commencing from 23/07/2010 to 22/07/2011 for insured declared value Rs.8,48,692/-.

3)        The further case of the Complainant is that, on 26/11/2010 the vehicle in question was on the Highway between Ahmedabad and Baroda and the said vehicle met with an accident and caused heavy damages to the said vehicle.  The Complainant had approached to the police station but police stated that there is no need to lodge the first information report as there is no injury to any person in the accident and police refused to register the first information report.  The photographs of the vehicle in question are prima facie evidence about the damages of said vehicle.  At the time of driving vehicle the driver was having valid driving license.

4)        The further case of the Complainant is that, he had informed to the Opposite Party the fact of accident of vehicle in question and submitted with Opposite Party the claim form.  The vehicle in question was sent to SC Ford to assess the loss and repair work required on the vehicle in question.  Opposite Party suddenly issued letter to SC Ford and directed not to repair the vehicle in question.  Opposite Party repudiated the claim of the Complainant without any justified ground. 

5)        The further case of the Complainant is that, he could not keep the vehicle in question in damaged condition for such a long time and also deprived of the vehicle and had to incur additional expense if he wants to travel by any other vehicle.  The Complainant had sent vehicle in question to SC Ford for carrying out necessary repair work of the said vehicle and incurred the expenses of Rs.1,78,045/-.  The repudiation of genuine claim of the Complainant is an unfair trade practice and deficiency in service.  Hence, this complaint for the reliefs mentioned in above para no.1.

6)        Opposite Party has resisted the claim by filing written statement.  The Opposite Party has admitted that they have issued to the Complainant Private Car Package Policy valid for the period from 23/07/2010 to 22/07/2011 for insurance declared value Rs.8,48,692/-.  The contentions of Opposite Party is that, after receipt of claim of the Complainant, the Opposite Party verified and investigated the claim, the documents submitted alongwith claim form and also conducted survey of alleged accident.  The further contentions of Opposite Party is that Complainant had made declaration while issuing the policy and claimed 25% of no claim bonus on the ground that there was no claim against the previous policy held by him.  During the investigation it is revealed that the Complainant had earlier made claim with previous insurer i.e. Bharti AXA Insurance Co. Ltd. on the policy bearing No.FPV/10074945/25/07/M211B, with regards to the same vehicle in question. The Complainant deliberately concealed this fact from the Opposite Party.

7)        The further contention of Opposite Party is that, the Complainant has signed the undertaking-cum-declaration letter and provided to the Opposite Party it amounts to misrepresentation of fact and it nullified the contract of insurance which made the Complainant ineligible to claim any compensation from the Opposite Party.  The Complainant was ineligible for any benefit under the policy. The Opposite Party is not liable to pay any amount to the service center regarding repairs of the vehicle in question.  Opposite Party had intimated to the said service center/garage that as the Opposite Party is not liable to pay any amount under the policy, Opposite Party repudiated the claim of the Complainant and no amount can be claimed from the Opposite Party for repair work under cashless.  The contention of the Opposite Party is that to prove the occurrence of accident the production of FIR is mandatory.  The Complainant failed to produce the FIR and failed to prove the occurrence of the alleged accident and therefore, Complainant is not entitled to claim any compensation from the Opposite Party. Opposite Party has rightly repudiated the claim of the Complainant.  Opposite Party never adopted unfair trade practice and there is no deficiency in service on the part of Opposite Party.  Opposite Party has denied rival contention of the Complainant and prayed for dismissal of complaint with cost.

8)        From the rival pleadings of both parties, following points arises for consideration and our findings thereon are noted against each of them for the reasons given below –

                                                   Points                                         Findings

1.      Does the Complainant prove that there was                     Affirmative.

         deficiency in service on the part of Opposite Party ?                                 

2.      Whether Complainant is entitled to the reliefs as             Rs.1,25,000/- for loss of      

          claimed ?                                                                         vehicle, Rs.5,000/- for mental

                                                                                                  agony and Rs.3,000/- cost of complaint.           

3.      What reliefs and order ?                                                   As per final order

Reasons

9)        The Complainant has filed his affidavit of evidence.  Opposite Party has filed affidavit of evidence of Shri. Kalpesh Modey, Legal Manager.  We have gone through the documents produced by the parties.  Both parties have submitted their written notes of arguments.  We heard oral arguments of Smt. Rashmi Manne, Ld.Advocate for the Complainant and Shri. Ankush Navghare, Ld.Advocate for the Opposite Party.  

10)      Point Nos.1 & 2 :-  As per the evidence of the Complainant the vehicle in question met with an accident at Ahmedabad-Baroda Express Highway on 26/11/2010.  The Complainant had sent the damaged vehicle in question to SC Ford to access the total damage and repair work required of the said vehicle.  The Complainant informed to the Opposite Party the fact of accident and submitted claim form.  The Complainant has submitted alongwith complaint copy of claim form at Annexure - C-5 (page No.31 & 32).   The Complainant has submitted Annexure– C-6, a copy of letter issued by Suraj Birwatkar Officer of Opposite Party to SC Ford by mail on 09/12/2010.  Opposite Party by the said mail requested to SC Ford for not starting the repairing work under cashless as the said claim is repudiated by the Opposite Party due to violation of policy terms and breach of trust by the Complainant.  The case of Opposite Party is that at the time of issuing policy the Complainant had duly signed undertaking –cum-declaration letter by which the Complainant claimed 25% of no claim bonus stating that there was no claim against his previous policy.  The Complainant has availed the no claim bonus benefit in the policy issued by Opposite Party. 

11)      On 08/06/2013 Opposite Party has produced some documents on record alongwith list.  The document filed at page no.5 in the list shows that on 31/03/2011 Suraj Birwatkar, Officer of Opposite Party sent mail to Prashant Patil of Bharati AXA Insurance Company and requested for providing the claim status of Policy No.FPV/10074945/25/7/M5211B of the complaint.  On 01/04/2011 Prashant Patil sent mail to Suraj Birwatkar and informed that the Complainant had lodged claim No.C0016729 with Bharti AXA General Insurance Company regarding accident dtd.28/01/2010 for Rs.28,102/- on 05/02/2010 and said payment has been made to S.C. Auto Agencies.  From the above mail communication it appears the Complainant had lodged claim with Bharti AXA General Insurance Company regarding accident dtd.28/01/2010 during the policy period 23/07/2009 to 22/07/2010 and obtained insurance amount Rs.28,102/- from Bharti AXA General Insurance Company.  The Complainant has admitted above fact in his evidence. 

12)      The Complainant has denied in his evidence that he signed undertaking-cum-declaration and he violated the terms and conditions of the policy issued by Opposite Party.  Opposite Party has not submitted documents of declaration and undertaking which bears the signature of the Complainant. The Complainant has produced alongwith complaint Annexure - C-2 (page 12-17) copies of mail of Opposite Party dtd.28/06/2010 & 09/07/2010. The mail dtd.28/06/2010 is in respect of motor insurance proposal of ICICI sent by Seema Panambur, Officer of Opposite Party to Shreedh by which Opposite Party offered to the Complainant for obtaining their policy.  The email dtd.09/07/2010 is in respect of quotation for insurance renewal of vehicle in question of the Complainant sent by Abhishek Sahu to Shreedh. The Opposite Party has issued Private Car Package Policy, Certificate-cum-Policy Scheduled Policy No.3001/60430934/00/000 to the Complainant which is filed alongwith complaint at Annexure - C-3 (page no.20).  The Complainant has paid the premium of said policy to Opposite Party by the cheque.  The xerox copy of said cheque and customer copy of policy are produced with complaint at page Nos.19 & 18.  If it is presumed that the documents sent by the parties to each other on mail and therefore question of signature of Complainant on the alleged declaration does not arise. Under the above circumstances it was necessary on the part of Opposite Party to file affidavit of evidence of their officer to whom and on which date, and place the Complainant had stated the fact of no claim during the policy period of 23/07/20009 to 22/07/2010 and who has mentioned no claim bonus 25% in the relevant column of policy issued by the Opposite Party for the period 23/07/2010 to 22/07/2011.  The policy issued by the Opposite Party bears the signature of authorized officer.  Opposite Party has not submitted affidavit of evidence of said officer to prove the alleged declaration made by the Complainant. The documents proposal letter and quotation for insurance renewal letter shows that no claim bonus 35%  Rs.5,555/- and 25% Rs.2,815/- respectively have been mentioned in the relevant columns of those documents.  It has also not come on record who has mentioned fact of no claim bonus in the said columns and at whose instances.  There is no evidence on record to show that the above information has been recorded in the relevant columns of offer letter, quotation for insurance letter, at the instance of the Complainant.   

13)      Opposite Party comes with the case that, Complainant has violated the terms and conditions of their policy by intentionally suppressing the fact of claim obtained by him from Bharti AXA General Insurance Company during the period of previous policy 23/07/2009 to 22/07/2010 and hence, Complainant is not entitled to any claim from the Opposite Party. Both the parties have submitted copies of Private Car Package Policy Certificate-cum-Policy Scheduled, Policy No.3001/ 60430934/00/000 issued by the Opposite Party to the Complainant.  A clause of “disclaimer” is in the said document.  It has been contended in the disclaimer clause that, “please visit www.icicilombart.com for the policy wording for complete details of terms and conditions governing the coverage and NCB.  This document is to be read with the policy wordings.” Opposite Party has not produced on record the terms and conditions governing the coverage and NCB mentioned above to show that, insured disentitles to claim the loss due to suppression or misrepresentation of fact.  Opposite Party failed to prove that there is above such terms and condition in the policy which disentitled the complainant to claim loss from the Opposite Party.  

14)      Opposite Party has also challenged the claim of Complainant on the ground that Complainant has not produced copy of FIR to prove the alleged accident. The Complainant failed to prove the accident hence, he is not entitled to claim the loss of vehicle in question.  It is true copy of FIR is not on record.  The Complainant pleaded and deposed on oath that he had approached to police station to lodge the report but concern police advised him that as there no injury to any person in the accident therefore, filing and registration of FIR is not necessary. Opposite Party has submitted a document at page nos.7 & 8 alongwith list of documents dtd.06/08/2013.  The said document does not bear the signature of surveyor however, it has been produced by the Opposite Party therefore, it can be read in the evidence against Opposite Party.    In the said document the number of policy as 3001/60430934/00/000 and loss of date as 26/11/2010, intimation date 06/12/2010, Policy start 23/07/2010, Claim No.MOIO 1825909 have been mentioned in the relevant columns. The cause of loss has been shown as rear left tyre burst and vehicle went of the road.  The reason of repudiation has been shown on wrong NCB declaration. The columns of Surveyor category and and Surveyor License number and validity are blank.  However, the contentions of said document shows that Opposite Party has rejected the claim of Complainant only on the ground of wrong NCB declaration.  The fact of burst of rear tyre of the vehicle in question mentioned in the said document is the sign of accident. This column of cause of loss itself show that the vehicle in question met with an accident. Under these circumstance non filing of FIR does not fatal the case of the Complainant.   In view of the above discussion it cannot be said that Complainant failed to prove the accident

15)      Opposite Party has produced copy of claim form submitted by the Complainant with the Opposite Party.  It is at page no.30 with list dtd.06/08/2013. The Complainant has shown therein exact location of accident Ahmedabad – Baroda Express Highway and in the column of brief description of accident that, rear tyre blasts vehicle lost the control and run over the divider and turn around and slip up to 600 feet causing damages at front, rear both sides and under chassis.  From the above contention it appears that the vehicle in question sustained loss due to burst of it’s rear tyre. The above contention of claim form and document filed by Opposite Party at page no.7 with list dtd.06/08/2013 and affidavit of evidence of Complainant clearly goes to show that the vehicle in question sustained loss in the accident on 26/11/2010.

16)      The Complainant has claimed Rs.1,78,045/- from the Opposite Party towards the estimate of repair required on the vehicle in question. The Complainant in support of his above claim produced a receipt of Rs.1,28,045/- paid by him to S.C. Ford by D.D. No.011/54 Bank of India on 05/01/2011 and another receipt of payment of Rs.50,000/- by cheque on 04/12/2010, total Rs.1,78,045/-.  The Complainant has not produced evidence to Show that the depreciation value of new parts of the said vehicle has been deducted from the estimated value.  On the contrary Complainant himself has used the word estimate of repair of vehicle Rs.1,78,045/- in the prayer clause C of the complaint. Opposite Party in the document filed at page no.7 with list dtd.06/08/2013 has shown IL Liability Rs.1,25,000/-.  It appears Opposite Party has prepared the said document as the claim number is appearing as MOIO 1825909 therein.  As per the said document liability of payment of loss of Opposite Party is Rs.1,25,000/-.  The amount of depreciated value out of the estimated value has not deducted by the Complainant therefore, Complainant is entitled to the loss of Rs.1,25,000/- and not for Rs.1,78,045/-. Opposite Party has repudiated the claim of Complainant without making enquiry about the person/officer who has mentioned NCB 25% in the policy and on whose instance, and it is the deficiency in service on the part of Opposite Party.  Smt. Rashmi Manne, Ld.Advocate for the Complainant relied on the judgment delivered by our Hon’ble State Commission in First Appeal No.A/921/2010, The New India Assurance Co. Ltd. V/s. Balkrishna Ganesh Joshi, decided on 06/07/2011. The facts of the said case are different hence, it is not applicable to the present case. In view of above discussion we hold that the Complainant is entitled to loss of Rs.1,25,000/-, Rs.5,000/- compensation for the mental torture and Rs.3,000/- cost of the complaint.

            In the result complaint deserves to be partly allowed with cost.  Hence, we proceeds to pass following order –           

O R D E R

i.                   Complaint No.13/2011 is partly allowed with cost.

ii.                  Opposite Party is directed  to  pay  to  the  Complainant loss of vehicle Rs.1,25,000/-(Rs. One Lac Twenty Five Thousand

                    Only) with interest @ 6% p.a. from the date of filing complaint till full realization of the amount.

             iii.                 Opposite Party is directed to pay to the Complainant Rs.5,000/-(Rs. Five Thousand Only)  compensation  for  mental torture

                                 caused to him.

                     iv.                Opposite Party is directed to pay to the Complainant Rs.3,000/-(Rs. Three Thousand Only) towards cost of the complaint.  

             v.                Opposite Party is directed to pay amount mentioned in above para Nos. ii to iv to the Complainant within one month from the

                                date of this order.   

             vi.               Certified copies of this order be furnished to the parties.