Punjab

Fatehgarh Sahib

CC/35/2016

Rajnish Mittal - Complainant(s)

Versus

IFFCO TOKIO GEN INSU. - Opp.Party(s)

SH AK Gupta

03 Nov 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

                         Consumer Complaint No.35 of 2016

                                                                Date of institution:  18.03.2016                                  

                                                              Date of decision   :  03.11.2017

Shri Rajnish Mittal aged 26 years s/o Shri Vinod Kumar Mittal, Resident of Ward No.10, Amloh, Tehsil Amloh, district Fatehgarh Sahib.

……..Complainant

Versus

1. IFFCO TOKIO General Insurance Co. Ltd., 2^nd Floor, Above Hotel, Hot Chop, Kaula Park Market, Sangrur through its Branch Manager.
2. Iffco TOKIO General Insurance Co. Ltd., Regd. Office: IFFCO Sadan C 1, Distt. Centre, Saket, New Delhi-110017 through its Managing Director.
3. Jaswant Kaur W/o Sh. Parvesh Verma R/o Byepass Road C/o Bharat Computer Centre Opposite Loksewak Petrol Pump, Amloh, District Fatehgarh Sahib.

 

 …..Opposite parties 

Complaint under Sections 11 to 14 of the Consumer Protection Act

Quorum

Sh. Ajit Pal Singh Rajput, President          

Sh. Inder Jit, Member

 

         

Present :      Sh. Ashok Kumar Gupta, Adv.Cl. for the complainant.

                   Sh. Amit Gupta, Adv.Cl. for OPs No.1 & 2.

                   Opposite party No. 3 exparte.

 

 

ORDER

By Ajit Pal Singh Rajput, President

                Complainant, Rajnish Mittal aged 26 years s/o Shri Vinod Kumar Mittal, Resident of Ward No.10, Amloh, Tehsil Amloh, district Fatehgarh Sahib, has filed this complaint against the Opposite parties (hereinafter referred to as “the OPs”) under Sections 11 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.             The complainant got insured his car make Mahindra Verito bearing registration No.PB-65-V-0005, Engine No.72790, Chassis No.83876, Model 2013, with OPs No. 1 & 2 through OP No.3, vide policy No.1-3MLWE6H/92940621 for the period from 24.06.2015 to 23.06.2016 and paid an amount of Rs.9249.88P as premium.  Unfortunately on 25.09.2015, the said car met with an accident and got damaged. The intimation of the said accident was given to the OPs and the claim was also lodged by the complainant. The OPs deputed Mr. Inder Pal Singh, Mohali as Surveyor and the car of the complainant was taken to M/s Swami Automobiles Pvt. Ltd. Chandigarh, who is authorized Dealer of Mahindra & Mahindra Ltd., for its repair. The said dealer repaired the car of the complainant and an amount of Rs.86,807/- was spent by the complainant on account of entire repair, labour, replacement of parts etc, vide invoice No. RBR16C005077 dated 20.10.2015 under Job Card No. RO16B002038. The complainant completed all the formalities for recovery of the insurance claim of the said accidental vehicle. The insurance policy was cashless policy and the amount of claim was to be directly paid by the insurance company, but the OPs have illegally and unlawfully declined to make the payment of insurance claim and have repudiated the claim vide letter dated 30.11.2015 on the false allegations.  The act and conduct of the OPs amounts to deficiency in service and unfair trade practice on their part. Hence, this complaint for giving directions to the OPs to pay an amount of Rs.86,807/-as insurance claim and Rs.2,00,000/- as compensation for mental tension, pain, agony, undue and unnecessary harassment being suffered by the complainant.

3.             Notice of the complaint was issued to the OPs, but OP No.3 chose not to appear to contest this complaint. Hence, OP No.3 was proceeded against exparte.

4.             The complaint is contested by OPs No. 1 & 2, who filed joint written reply. In reply to the complaint, they raised certain preliminary objections, inter alia, that the complainant does not come to this Forum with clean hands and this Forum has got no jurisdiction to entertain the present complaint. As regards the facts of the complaint, OPs No. 1 & 2 stated that the complainant had availed no claim bonus while obtaining the policy No.92940621 covering the vehicle No. PB-65V-005 w.e.f. 24.06.2015 to 23.06.2016.  The complainant also declared that no claim had been lodged with regard to the earlier insurance of the vehicle. But there is one claim under the previous policy from Reliance General Insurance Co. Ltd. for loss dated 21.06.2014 and the said claim was paid for a sum of Rs.6412/- by the said insurance company and as such, there was gross misrepresentation and withholding of material information at the time of obtaining the policy. Accordingly, the claim of the complainant was not payable as the same was rightly repudiated vide letter dated 30.11.2015. Hence, there is no deficiency in service and unfair trade practice on the part of the OPs. After denying the other averments made in the complaint, OPs prayed for dismissal of the complaint.

5.             In order to prove his case, the complainant tendered in evidence his affidavit Ex. C-1,  copy of insurance policy Ex. C-2, copy of invoice issued by Swami Automobiles Pvt. Ltd. Ex.C-3, copy of driving license Ex. C-4, copy of photographs Ex. C-5  & C-6, copy of text messages Ex. C-7 to C-9, true copy of legal notice Ex. C-10, postal receipts Ex. C-11 & C-12 and closed the evidence. In rebuttal, OPs No. 1 & 2 tendered in evidence affidavit of Sh. Sanket Gupta as Ex. OP-1, copy of insurance policy with terms and conditions Ex. OP-2 (3 pages), copy of survey report Ex. OP-3, copy of claim form Ex. OP-4, copy of print out of motor claim history Ex. OP-5, copy of letter dated 30.11.2015 Ex. OP-6 and closed the evidence.

6.             The learned counsel for the complainant has submitted that the main controversy involved in the present case is that the claim of the complainant was repudiated vide letter dated 30/11/2015 in an arbitrary and illegal manner. He argued that the claim had been repudiated on false and illegal ground and complainant deserves to be compensated for the act and conduct of the OPs.

7.             On the other hand, learned counsel for the OP no.1 & 2 has stated that the claim had been rejected keeping in view the terms and conditions of the policy. He pleaded that complainant intentionally gave false undertaking as regard to No Claim Bonus. Learned counsel argued that there was gross misrepresentation and withholding of material information at the time of obtaining the policy. Thus the OPs had righty repudiated the claim of the complainant. Learned counsel has also relied upon the judgment of Hon’ble National Commission in case titled as Inder Pal Rana Vs National Insurance Company, Revision Petition No.4470 of 2014, Date of Decision 02/01/2015, wherein it has been held as under:-

"8. Even if there  has been failure on the part of the officers of the Insurance Company in verifying the declaration made by the petitioner, while taking the policy, what cannot be a good ground for reimbursing him on the basis of a policy, which he obtained by misrepresentation to the Insurance Company. If we allow such a claim only on the ground that the officials of the Insurance Company should have verified the declaration made by the petitioner, and they having not done so, the insured cannot be denied his claim, that may result in a situation where pursuant to a connivance between the insurer and the officials of the Insurance Company the insured makes a misrepresentation and the officials in connivance with him does not verify the said representation. In such a case, the Insurance Company would be saddled with liability on the basis of a contract which has been entered on the basis of misrepresentation. We, therefore, reject the contention advanced by the learned counsel for the petitioner.

9. Since the consent of the Insurance Company to the Insurance Policy which is nothing but a contract between the insurer and the insured was obtained by misrepresentation and fraud, the said contract is voidable at the option of the Insurance Company. Consequently, the insurer was justified in repudiating the claim on account of the aforesaid misrepresentation made by the petitioner. For the reasons stated hereinabove, we find no merit in the revision petition. The revision petition is, therefore, dismissed".

8.             After hearing the Learned Counsel for the parties and going through the pleadings, evidence produced by the parties and the oral arguments and written submissions, we find that there is force in the submissions made by the learned counsel for OPs No.1 & 2. It is established from the Motor Final Survey Report Ex.OP-3, wherein it is mentioned “19/10/2015 H6MOTOR CLAIM PAID FROM PREVIOUS INSURER Reliance General Insurance NCB IS FAKE-PRABVEEN”, undertaking signed in claim form Ex.OP-4 and claim history Ex.OP-5 that claim under the previous policy from Reliance General Insurance Co. Ltd. for loss dated 21.06.2014 was paid for a sum of Rs.6412/- by the previous insurance company to the complainant. OPs vide repudiation letter dated 30/11/2015 had duly intimated the terms and conditions under which the claim was liable to be repudiated, which is reproduced below:-

"No Claim Bonus was claimed and availed by you while insuring the above said vehicle with us. As per terms & condition of the Policy:-

            Notwithstanding anything  to the contrary contained in the policy, it is hereby agreed, understood and warranted that the No Claim Bonus(NCB) allowed under this policy is subject to the fact that the Own Damage claim experience for your insured vehicle or your earlier vehicle( in case of transfer of No Claim Bonus(NCB) from the earlier vehicle) in the Previous year policy(s) was Nil. Accordingly you give the consent and accept that the No Claim Bonus(NCB) allowed under this current policy for insured vehicle is based on the above Nil claim history. However if we find that the basis of availing "No Claim Bonus" (NCB) under the current policy is incorrect; then we will impose suitable damages at the time of claim under Own Damage section of the policy, which may at our discretion include forfeiture of all benefits under the Own Damage section of the policy. In case you find that the No Claim Bonus(NCB) under the present policy is not correct, then you may please deposit the amount for No Claim Bonus(NCB) to us within 10(Ten) days from the date of the issuance of the policy for the continuation of benefits under the Own Damage section of the policy".

9.             Accordingly, in view of our aforesaid discussion and the judgment of Hon’ble National Commission cited by the learned counsel for OP No.1 & 2, we find that OPs were justified in repudiating the claim on account of misrepresentation made by the complainant. Hence we find no merits in the present complaint and the same is hereby dismissed.

10.                    The arguments on the complaint were heard on 27.10.2017 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated:-03.11.2017

(A.P.S.Rajput)   

    President

 

 

(Inder Jit)

Member