Haryana

Ambala

CC/181/2019

Harmohinder Singh - Complainant(s)

Versus

IFFCO Tokio Gen Inss Co Ltd - Opp.Party(s)

Ripanjit Singh

17 Mar 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case No.          :  181 of 2019.

                                                          Date of Institution            :    24.05.2019.

                                                          Date of decision               :    17.03.2021.

 

Harmohinder Singh son of Shri Gurdyal Singh, aged about 64 years, resident of Village Kanwla, Tehsil and District Ambala (HR).

……. Complainant.

                                                    Versus

1. IFFCO-TOKIO, General Insurance Company Limited, through its Manager, IFFCO Sadan, C-1, District Centre, Saket, New Delhi-110017.
2. IFFCO-TOKIO, General Insurance Company Limited, through its Manager, 1^st Floor, Minerva Complex, Rai Market, Ambala Cantt 133001 (HR).
3. Samrithi Motors Pvt. Ltd. through its Manager, Ambala Jagadhri Road (SH-5) Village Tepla, Ambala-133001.

     ….…. Opposite Parties.

 

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri Ripanjit Singh, Advocate, counsel for the complainant.

                   Shri R.K.Vig, Advocate, counsel for the Ops No.1 & 2.

OP No.3 already exparte vide order dated 11.07.2019.  

 

ORDER:     SMT NEENA SANDHU PRESIDENT.

 

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay all the expenses incurred by the complainant for repair of his vehicle.
2. To pay Rs.3,00,000/- as compensation for the mental agony and physical harassment suffered by him.
382.  

                   Any other relief which this Hon’ble Commission may deem fit.

 

Brief facts of the complaint are that the complainant owned a vehicle (car) make Hyundai i20 Magna CRDI, model 2013 bearing registration No.HR-01-AG-2610, engine No.255226 and chasis No.541474. He got his said car insured from the OPs No.1 and 2, through their agent OP No.3 by paying premium of Rs.15,905/- valid for the period from 21.04.2018 to 20.04.2019. He had taken the previous insurance policy from the New India Assurance Company Ltd. and got insured his vehicle and the OPs No.1 and 2 issued the said policy after thorough examination. In the policy, it is clearly mentioned that No Claim Bonus (NCB) was availed @ 20% and Rs.2201/- was deducted from the total premium to be paid. The OPs No.1 and 2, told him that they will provide hassle free and cashless claim, in case of any damage to the vehicle. On 25.02.2019, complainant’s son collided with stray cattle and luckily he escaped, but the vehicle got damaged badly. On the next day i.e. 26.02.2019, complainant along with his son, visited the office and workshop of OP no.3 for the repair of the said vehicle. OP No.3 told him that as the vehicle is duly insured with OPs No.1 and 2, so the accidental repair charges including spare parts and labour will be paid by them. However, after few days, the OP No.3, informed the complainant that the OPs No.1 and 2 refused to pay the repair charges. Complainant got shocked and he along with his son visited the office of OP No.2 and inquired as to why it has refused to settle the claim. The official of OP No.2 told him that he has communicated the head office via E-mail for the approval of the case and asked him to come after 3-4 days. Complainant again contacted the official of OP No.2, but of no avail. He constantly visited the office of all the OPs, and also sent E-mails to them to settle his claim, but they flatly refused to pay the claim amount with the plea that NCB (No claim bonus) has wrongly been availed. He served a legal notice dated 10.04.2019, upon the OPs, but of no avail. By not paying the genuine claim amount, the OPs have committed deficiency in service. Hence, the present complaint.

2.                Upon notice, OPs No.1 & 2 appeared through counsel and filed written version, raising preliminary objections regarding maintainability etc. On merits, it is stated that the car No.HR-01-AG-2610 was insured with the Ops No.1 and 2, w.e.f. 21.04.2018 to 20.04.2019, as per terms and conditions of the insurance policy. It is further stated that the car of the complainant was previously insured with the New India Assurance Company Limited and thereafter he got insured his car with the Iffco Tokio General Insurance Company Limited. Copy of the policy issued in favour of complainant clearly indicate that concession of NCB of 20% i.e. Rs.2201/- was given to him on the assurance that he has not availed no claim bonus under the previous policy. The insurance company, finally on 16.03.2019, informed to the complainant regarding refuting his claim on account of wrong declaration given by him regarding no claim bonus and there was breach of condition No.8 of the terms and conditions of the policy. The OPs No.1 and 2 are thus well within their rights to repudiate the claim which is based on false declaration. The insurance company acted legally and action taken by it is not violative of natural justice, equity or law. The loss of the vehicle was assessed to the tune of Rs.43,922.05/-, but the same is not payable. The rest of the allegations levelled by the complainant were denied for want of knowledge and prayer has been made for dismissal of the present complaint.

                   Upon notice, none has appeared on behalf of the OP No.3 before this Commission, therefore, he is proceeded against ex-parte vide order dated 11.07.2019.

3.                Complainant tendered his affidavit as Annexure CA alongwith documents as Annexure C-1 to C-14 and closed the evidence. On the other hand, the learned counsel for the OPs No.1 and 2 tendered affidavit Shri Rajiv Ranjan, Authorized Signatory # Iffco Tokio General Insurance Company Limited, Iffco Bhawan, 3^rd Floor, Plot No.2 B & C, Sector- 28 A Chandigarh and affidavit of Shri Chander Parkash, in House Surveyor of Iffco-Tokio General Insurance Company Limited, presently posted at Ambala office as Annexure OP1/1 and OP1/2 respectively along with documents annexure OP1/3 to OP1/10 and closed the evidence on behalf of OPs No.1 and 2.

4.                We have heard the learned counsel for complainant & learned counsel for OPs No.1 & 2 and carefully gone through the case file.

5.                The learned counsel for the complainant argued that the complainant got insured the car in question from the OPs No.1 and 2 through OP No.3 for the period from 21.04.2018 to 20.04.2019. During the subsistence of the policy, it met with an accident. The claim lodged by the complainant was

 

wrongly repudiated by the insurance company vide letter dated 16.03.2019 Annexure OP1/8.  

6.                On the contrary, the learned counsel for OPs No.1 and 2 argued that the claim of the complainant was rightly repudiated by the insurance company because while taking the policy in question, the complainant had availed no claim bonus @ 20%, whereas, he had already availed no claim bonus during the period of previous policy, which he obtained from New India Assurance Company Ltd. for the accidental loss dated 30.08.2017. By doing so, complainant breached the terms and conditions of the policy and thus not entitled to any relief.  In support of his contention, the ld. Counsel for the OPs No.1 & 2 has placed reliance on the cases, titled as Tata AIG General Insurance Company Limited & Another Vs. Gulzari Singh, 2010 II CPJ 272 (NC) and Brij Bhushan Vs. National Insurance Company Limited & Another, IV (2012) CPJ 80 (NC).

7.                Admittedly, the car of the complainant having registration No.HR-01AG-2610, was duly insured with the OPs No.1 and 2, for the period from 21.04.2018 to 20.04.2019 vide policy document Annexure C/7/OP1/9. From the said policy, it is evident that no claim bonus was claimed @ 20%.  However, from the perusal of Motor Claim History of the vehicle in question given by IIB (Insurance Information Bureau of India) Annexure OP1/7, it is quite clear that an amount of Rs.1700/- was paid by New India Assurance Co. Ltd. for the car in question, as accidental loss occurred on 30.08.2017. Meaning thereby, the complainant had availed no claim bonus during the subsistence of the previous policy and by not disclosing this fact and giving wrong declaration, while taking the policy in question has certainly committed a mistake. However, at the same time, it cannot be ignored that as per Clause (f) of GR 27 of India Motor Tariff, which is extracted as under:

                   “(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 while the insurer 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 owner, the claimed NCB may be premised 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. I/We undertake that if this declaration is found to be incorrect, all benefits under the policy in respect of Section 1 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.”                 

                   The insurer was also duty bound to write to the previous insurer within 21 days, after granting the cover for confirmation of the entitlement and rate of NCB. Since the policy had been issued by the OPs No.1 and 2 in respect of the vehicle in question, in favour of complainant, it was their duty to obtain the information, as to whether, any claim had been obtained by the complainant in respect of the policy, of the previous year, within 21 days, but they failed to do so. Under these circumstances, the fault also lay, on the shoulders of the insurance company, in not confirming about this factum, within the specified time, stipulated in the aforesaid Clause (f) of GR 27 of India Motor Tariff, thus, both the complainant and the OPs No.1 and 2 were at fault. As stated above, in these circumstances, by no stretch of imagination, it could be said that by repudiating the claim of the complainant, as a whole, especially when the OPs No.1 and 2 were also at fault, on account of contravention of Clause (f) of GR 27 of India Motor Tariff, have committed deficiency in rendering services to some extent.

8.                The next question, that falls for consideration, is as to whether, there was a breach of fundamental condition of the policy by the complainant. In our considered opinion, when both the complainant and the OPs No.1 and 2 were at fault, to the extent, referred to above, breach of condition of the policy, by claiming the NCB @20%, could neither be said to be fundamental nor germane to the incident. In the case of United India Insurance Co. Ltd. Vs. Bhupinder Singh, III, 2013 CPJ 333 (NC), the duly insured vehicle was stolen and the insured wrongly claimed no claim bonus at the time of renewal of the policy. The claim was repudiated by the insurance company, The Hon’ble National Commission by making reliance on the case of National Insurance Co. Ltd. Vs. Nitin Khandelwal, 2008 CPJ, 1 (SC), wherein the Hon’ble Supreme Court of India has held that the breach of condition was not germane to theft, hence the claim is required to be settled on non-standard basis, has directed the insurance company to settle the claim of the complainant, on non-standard basis. The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case. The insurance company i.e OPs No.1 and 2, therefore, was required to settle the claim of the complainant, on Non-Standard basis, by not doing so, it has committed deficiency in rendering services. The surveyor vide report dated 08.03.2019 (Annexure OP1-6) has assessed the net amount of Rs.43,922.05. The report of the surveyor is based on cogent and convincing material and data. No evidence was produced, on the record, to rebut the report of the surveyor. In the case of United India Insurance Co. Ltd. Vs. Deen Dayal, II (2009) CPJ, 45 (NC), the Hon’ble National Commission has held that the surveyor’s report being important document cannot be brushed aside lightly without any material to contrary on record. The complainant, is thus, held entitled for a sum of Rs.32,941/- i.e. 75% of Rs.43,922/-, on non-standard basis. The complainant has also claimed compensation to the tune of Rs.3,00,000/- for loss suffered by him. It may be stated here that by claiming no claim bonus wrongly, the complainant had committed mistake, thus, he is not entitled to get compensation as sought for. So, far as the deficiency on the part of OP No.3 is concerned, the complainant has merely stated that he obtained the policy from the OPs No.1 and 2 through OP No.3, neither any specific allegation has been levelled against him nor it has been proved, therefore complaint filed against the OP No.3 is liable to be dismissed.

9.                In view of the aforesaid discussion, we hereby dismiss the present complaint against the OP No.3 and partly allow the same against OPs No.1 and 2 with no order as to costs and direct the OPs No.1 and 2 to pay Rs.32,941/-, i.e. 75% of the Rs.43,922/- on non-standard basis, to the complainant. The above said amount shall be paid by the OPs No.1 and 2 to the complainant within 45 days from the date of the receipt of the copy of this order, failing which, the said amount shall carry interest @ 5% per annum from the date of filing the complaint till its realization. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :17.03.2021.

 

 

 

(Vinod Kumar Sharma)            (Ruby Sharma)               (Neena Sandhu)

           Member                            Member                          President

                                                                                      DCDRC, Ambala