IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.
CONSUMER CASE NO. : 45/S/2015. DATED : 19.10.2016.
BEFORE PRESIDENT : SRI BISWANATH DE,
President, D.C.D.R.F., Siliguri.
MEMBERS : SMT. PRATITI BHATTACHARYYA &
SRI PABITRA MAZUMDAR.
COMPLAINANT : SRI UDAY SINGH,
S/O. – Late Ankur Singh,
Resident of C/o Singh Line Hotel, NH-31,
P.O. & P.S.- Matigara, Dist.- Darjeeling.
O.P No. 1. : IFFCO-TOKIYO GENERAL INSURANCE COMPANY
LTD.,
a company registered under the Companies Act, 1986,
having it’s registered office at “IFFCO-Sadan”,
C-1, District Center, Saket, New Delhi – 110 017 and
also having it’s Branch office at Shree Radha
Apartment, Block – ‘B’, Shop-8, 2nd Floor, Isskon
Mandir Road, P.O.- Sevok Road, P.S.- Siliguri,
Dist.- Darjeeling.
O.P No. 2. :THE BRANCH MANAGER,
Iffco-Tokio General Insurance Co. Ltd.,
having his office at Shree Radha Apartment, Block – ‘B’,
Shop - 8, 2nd Floor, Isskon Mandir Road,
P.O.- Sevok Road, P.S.- Siliguri, Dist.- Darjeeling.
Proforma O.P. 3. : SITARAM BODY GARAGE,
Proprietor Chadan Sharma,
Having his place of business at Sahadargachh,
P.O.- Bidhannagar, P.S.- Phansidewa,
Dist.- Darjeeling.
FOR THE COMPLAINANT : Sri Rathin Sarkar, Advocate.
FOR THE OP Nos. 1 & 2 : Sri J. P. Pawa, Advocate.
J U D G E M E N T
Sri Biswanath De, Ld. President.
The complainant’s case is that complainant’s insured vehicle was damaged by an accident on 19.05.2014. The fact was informed to the OP Insurance Company. The OP appointed surveyor for necessary enquiry and report for repairing the vehicle. The complainant paid huge amount of money to different persons i.e., different garage owner mentioned in the complaint in para 7, 8. In this way, complainant incurred huge expenditure about Rs.6,23,253/- to make the vehicle roadworthy. On 27.10.2014, the OP repudiated the claim of the
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complainant. It is also case of the complainant that complainant had received one letter 01.12.2014 from the OP for correction of the policy and instructed the complainant to deposit a sum of Rs.5,760/- as N.C.B. Accordingly, the complainant had deposited the said sum of Rs.5,760/-. Accordingly, the OP has absolutely accepted the previous policy and OP is under obligation to settle the genuine claim of the complainant. Accordingly, when the OP refused to pay the cost of repairing to the complainant who had valid policy, the complainant came before this Forum for getting relief as per provision of C.P. Act, 1986.
The OP Nos.1 & 2 contested the case by filing written version with their usual fairness denying inter-alia all the material allegations as raised by the complainant. The OP admits the insurance policy of the complainant. The OPs case is that as per the General Rule – 27 of the Indian Motor Tariff guided and framed by the IRDA, the NCB of 50% is allowed by the Ins. Co. in the OD section of the policy, if there has been no claim against the damage of the insured vehicle during the preceding 5 (five) consecutive years. But in a case, where the insured takes a claim towards the “OD (Own Damage) claim” against the said vehicle in the current policy – period, then in the next year’s policy issued by any of the insurer, the NCB becomes “NIL” and the insured is not entitled to avail the same. The OPs further state that in the instant case as a matter of fact, it is apparent that the complainant/insured had availed/enjoyed the said benefit i.e., NCB of 50% (which he was not entitled to even in the previous year’s policy period i.e., 2012-13) and had got his vehicle insured at the lesser premium by suppressing the above material facts as well as by giving wrong and false declaration/consent to the previous year’s concerned insurer i.e., “Bajaj Allianz General Insurance Co. Ltd”. It is also contended by OP in para 8 which runs follows :-
“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 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 the “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
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within 10 (ten) days from the date of the issuance of the policy for the continuance of benefits under the Own Damage section of the policy”. Hence, the OPs claim for dismissal of the complaint case.
To prove the case, the complainant has filed the following documents:-
1. Photocopy of Registration Certificate standing in the name of the complainant in respect of his vehicle bearing Registration No.WB-23/B-0540.
2. Original copy of Insurance Certificate issued by the OPs, being Policy No.85794848, dated 18.11.2014.
3. Original copy of Policy Endorsement Certificate dated 21.11.2014.
4. Original copy of F.I.R. dated 19.05.2014, lodged by the complainant with the O.C. Araria Police Station, Bihar.
5. Photocopy of Estimate Bill issued by the Proforma OP No.3 (Nos.-5).
6. Photocopy of Towing Bill, dated 19.05.2015 issued by the Jai Boishali Break down Service.
7. Photocopy of Cash Memo/Bill issued by Rajput Auto Traders (Nos.5).
8. Photocopy of Bill dated 21.05.2014 issued by M/S. N. R. Tyres.
9. Photocopy of Bill dated 25.08.2014 issued by Saharan Engineering Works.
10. Photocopy of Bill cum Money Receipt, dated 01.09.2014 issued by the Proforma OP No.3.
11. Original copy of Repudiation Letter dated 27.10.2014.
12. Original copy of Correction for Policy dated 01.12.2014.
13. Original copy of Money Receipt/Bill dated 02.12.2014 issued by the OPs, for collecting of money for correction of Policy.
14. Photocopy of Handicapped Certificate.
The OP has filed list of Ruling/case laws as under:-
i) 2016 (1) CPR 824 (N.C.) Harjinder Singh Lal Vs. Oriental Insurance Co. Ltd. (Decided on 15.02.2016).
ii) 2015 (4) CPR 258 (N.C.) National Insurance Co. Ltd. Vs. Dharampal Singh & Ors.
(Decided on 03.09.2015)
Complainant has filed evidence in-chief.
OP Nos.1 & 2 have not filed evidence-in-chief.
Complainant has filed Written Notes on argument.
OP Nos.1 & 2 have filed Written Notes of Argument.
Points for determination
1. Is there any deficiency in service on the part of the OP ?
2. Is the complainant entitled to get any relief as prayed for ?
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Decision with reason
Both issues are taken up together for the brevity and convenience of discussion.
From the documents of both sides it appears that the said vehicle in question was firstly insured with Royal Sundaram Insurance Company Ltd. Then the vehicle was insured by Bajaj Alliance General Insurance Company Ltd. and thereafter, this OP insured the vehicle after observing necessary formalities. The OP also took Rs.5,760/- along with other calculated insurance amount i.e., Rs.24,657.01/- as premium for insured vehicle of the complainant for the year 2013-14. The vehicle in question was insured from 19.11.2013 to 18.11.2014. The OP Nos.1 & 2 fully admit the insurance policy and does not dispute anything regarding the validity of the insurance policy within the mischief period. After starting the policy, this OP again took sum of Rs.5,760/-. So, OP is prevented to take the plea of NCB which was lawfully done by first and second insurance company. As per para 5 of written argument of the complainant, it is argued by the complainant that OP has falsely pleaded that the complainant has made false and wrong declaration with the Bajaj Alliance General Insurance Company Ltd., but in this respect OP has failed to produce any piece of evidence to prove that complainant has made any false declaration with the earlier Insurance Company wherein earlier Insurance of his vehicle was done with Bajaj Alliance General Insurance Company Ltd.
The claim of the complainant has been denied by the OP only on the ground that suppression of material fact regarding the previous two insurance policies was given by the complainant. But in fact, there is no such evidence of misrepresentation by the complainant. On the other hand, the contentions of OP show that they have adopted the complainant as policy holder for the said vehicle. The OP insurance Company is stopped from pleading such plea of misrepresentation of fact burden of proof lies on the OP that complainant made misrepresentation anyway. Rather, by taking the money of Rs.5,760/-, conveyed by letter dated 01.12.2014 by the OP shows that OPs have done all acts sincerely for the benefit of both sides.
Now, at the time of making payment of repairing cost, and to deprive the complainant of his lawful right, the OP Company is taking recourse of such allegation, which OP has done in a peaceful manner and paying attention to all facts of this case. The insurance company i.e., OPs are bound to compensate all the repairing cost of the vehicle as per claim of the complainant showing the cost of repairing the vehicle.
Documents filed by the complainant showing expenditure of repairing has not been disputed by the OPs. So, the amount of cost is admitted by the OPs.
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So, as per facts of this case and evidence therein adduced by both sides, this Forum after deep deliberation over the materials on record, we are of opinion that material in record and contentions of both sides supports the complainant’s claim regarding receiving repairing cost and other award as compensation.
In the result, the case succeeds.
Hence, it is
O R D E R E D
that the Consumer Case No.45/S/2015 is allowed on contest against the OP Nos.1 & 2 with cost and the case is dismissed exparte against the Proforma OP No.3 without cost.
The complainant is entitled to get Rs.6,23,253/- for repairing cost of his vehicle from the OP Nos.1 & 2.
The complainant is further entitled to get Rs.50,000/- towards compensation for mental pain, agony and harassment from the OP Nos.1 & 2.
The complainant is further entitled to get Rs.30,000/- on account of punitive damages from the OP Nos.1 & 2.
The complainant is further entitled to get Rs.20,000/- on account of litigation cost from the OP Nos.1 & 2.
The OP Nos.1 & 2, who are jointly and severally liable, are directed to pay Rs.6,23,253/- by issuing an account payee cheque in the name of the complainant for repairing his vehicle, within 45 days from the date of this order.
The OP Nos.1 & 2, who are jointly and severally liable, are further directed to pay Rs.50,000/- by issuing an account payee cheque in the name of the complainant towards compensation for mental pain, agony and harassment, within 45 days from the date of this order.
The OP Nos.1 & 2, who are jointly and severally liable, are further directed to pay Rs.30,000/- by issuing an account payee cheque in the name of the complainant for punitive damages, within 45 days from the date of this order.
The OP Nos.1 & 2, who are jointly and severally liable, are further directed to pay Rs.20,000/- by issuing an account payee cheque in the name of the complainant for litigation cost, within 45 days from the date of this order.
Failing which the amount will carry interest @ 9% per annum on the awarded sum of Rs.7,03,253/- from the date of filing of this case till full realization.
In case of default, the complainant is at liberty to execute this order through this Forum as per law.
Let copies of this judgment be supplied to the parties free of cost.
