PER MR.B.S.WASEKAR, HON’BLE PRESIDENT 

1)                The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986. According to the complainant, he had purchased car bearing No.MH-01-AR-2746 through the O.P.No.3.  The insurance of the said car was arranged by the O.P.No.1 through the O.P.No.2 for the period from 8^th April, 2010 to 7^th April, 2011.  The complainant paid premium amount of Rs.18,554/-.  The O.P.No.1 informed the complainant that insurance for the period 8^th April, 2011 to7th April, 2012 will be taken from new company M/s.Bharti Axa on the same terms and conditions. The O.P.No.1 demanded Rs.4,011/- towards insurance premium to be purchased from M/s.Bharti Axa. Accordingly, the complainant issued cheque. Sometimes thereafter, the O.P.No.1 demanded more amount for additional premium as there was accident claim filed by the complainant in December-2010. In November-2010, his car was hit by the taxi and the claim was filed after obtaining estimate from Shaman Auto.  The estimate given by Shaman Auto was of Rs.11,012/-. There was more benefit in no claim bonus facility of insurance company than the repairing cost. Therefore, the complainant withdrew the accident claim and settled the repair bill directly by paying to the O.P.No.3 on 3^rd December, 2010.  It was informed to the O.P.No.2 vide email dated 2^nd December, 2010. It was also endorsed to the Shaman Auto on 2^nd December, 2010.  The complainant requested the O.P.No.2 and 3 on 21^st April, 2011 to transfer of NCB to Bharti Axa.  Bharti Axa refused to insure the vehicle as NCB of 65% was not transferred by the O.P.No.2. The complainant wrote letter to the O.P.No.1 dated 8^th July, 2011 to take up the matter with the O.P.No.2 for transfer of NCB of 65% to Bharti Axa.  On 20^th July, 2011, the complainant received cheque from Shaman Auto for amount of Rs.10,407/- towards settlement of insurance claim amount by the O.P.No.2.  It is understood that the O.P.No.2 had not treated the claim as withdrawn and had settle the claim by making payment to the O.P.No.3.  The O.P.No.3 had received double payment.  The cheque was accepted without prejudice by the complainant.  The complainant lodged protest with the O.P.No.2 on 21^st July, 2011.  The act of settlement of insurance claim by the O.P.No.2 is a ply on the part of the opponents who have colluded with each other to prevent the complainant from enjoying NCB of 65%. On 4^th April, 2012, the complainant received communication form the O.P.No.2 denying any communication received by them for withdrawal of claim. Therefore, the complainant has filed this complaint to direct the opponents to pay no claim bonus of Rs.9,000/-.  He has also prayed for reimbursement of travel expenses of Rs.50,000/- incurred by the complainant.  He has prayed compensation of Rs.1 Lakh for mental harassment and cost of this proceeding Rs.50,000/-.

2)                The O.P.No.1 appeared and filed written statement.  It is submitted that the complainant is not a consumer of this O.P. therefore the complaint is not maintainable.  There is no deficiency in service on the part of this opponent.  It appears that the dispute is in between the complainant and the O.P.No.2.  This opponent has no concern with it.  There was no communication of complainant with this O.P. This O.P. advised the complainant to renew the car insurance policy with Bharti Axa General Insurance Company Limited instead of the O.P.No.2 and the complainant accepted it.  The complainant issued cheque of Rs.4,011/- towards premium.  The vehicle met with accident on 27^th November, 2010.  It was repaired by Shaman Cars Private Limited/the O.P.No.3.  The complainant claimed repair charges from the O.P.No.2 under the policy but later on changed the mind to save NCB. This fact was not disclosed to this O.P.  Therefore, he demanded premium amount of Rs.4,012/- deducting NCB of 65% for renewal of insurance policy. Accordingly, the complainant issued cheque for Rs.4,011/-. Bharti Axa informed this opponent about the claim availed by the complainant under the policy.  Therefore, additional premium amount was demanded but the complainant failed to pay.  The complainant went to USA on 27^th April, 2011 and returned on 7^th July, 2011. Therefore, insurance could not be renewed.  This O.P. is not responsible for renewal of policy and for NCB of 65%.  There is no cause of action against this O.P. therefore the complaint is liable to be dismissed with cost.

3)                The O.P.No.2 appeared and filed written statement. It is submitted that No Claim Bonus in premium is related to pricing or consideration and hence it is beyond jurisdiction of this Forum. As per the Agreement, the insurer directly pays to repairer on submission of the bills.  Accordingly, on request claim on 30^th November, 2010 by the complainant, this O.P. paid Rs.10,618/- towards repair charges directly to the O.P.No.3 who repaired the car.  This O.P. has performed its obligation under contract of insurance.  Therefore, the complaint is not maintainable.  All the averments are denied.  The complainant has already availed the benefit under the policy.  It is denied that the complainant has withdrawn the claim as alleged.  It is admitted that the complainant requested to transfer NCB to Bharti Axa vide letter dated 21^st April, 2011 and withdrawl of claim vide letter dated 27^th April, 2011.  However, this O.P. had already satisfied the repair claim by making direct payment to the O.P.No.3 on or about 10^th January, 2011.  Therefore, there is no question of reversing the cycle after settlement of claim and expiry of the policy.  Therefore the present complaint is liable to be dismissed with cost.

4)                The O.P.No.3 appeared and filed written statement.  It is submitted that there is no cause of action against this opponent.  The car met with accident on 27^th November, 2010.  The claim was registered on 28^th November, 2010.  The vehicle was brought to this O.P. for repair on 28^th November, 2011. The service adviser of this O.P. prepared estimate and the same was valuated by the Surveyor of the O.P.No.2.  The estimate was for Rs.27,827/-.  The complainant filled up insurance claim form and gave it to the O.P.No.3 for onward submission to the O.P.No.2. The O.P.No.3 prepared repair order on 30^th November, 2010.  The complainant authorized this O.P. to carry out repairs and accordingly it was repaired.  The car was ready on 3^rd December, 2010.  The complainant informed this O.P. that O.P.No.2 is already informed his desire to withdraw the cashless claim.  He handed over copy of email to this O.P.  The complainant has written wrong Email ID of this O.P. There was no communication from the O.P.No.2.  This O.P. prepared  tax invoice in the name of the complainant and the released the car on receiving the repair charges. Thereafter, this O.P. received cheque dated 10^th January, 2011 for Rs.23,756/- from the O.P.No.2. This O.P. received number of cheques from the O.P.No.2.  This O.P. returned the amount to the complainant by issuing cheque dated 28^th April, 2011. There is no deficiency in service on the part of this O.P. therefore the complainant is not entitle for the relief as claimed.    

5)                After hearing all the parties and after going through the record, following points arise for our consideration.

POINTS

REASONS

6) As to Point No.1 & 2 :- As per complaint para 11(g)(h), the vehicle met with an accident in November-2010 and the complainant submitted claim after obtaining estimate from Shaman Auto who were to carry out the accidental repairs.  There was more benefit in No Claim Bonus than the repairing cost therefore the complainant withdraw the accident claim and paid the repair charges to the O.P.No.3 on 3^rd December, 2010.  According to the complainant, he sent email letter to the O.P.No.2 on 2^nd December, 2010 and withdrew the insurance claim.  According to the O.P.No.2, the said email was not received by it.  The learned advocate for the O.P.No.2 has drawn out attention to the letter of the complainant dated 27^th April, 2011 and submitted that there is no reference of the alleged email dated 2^nd December, 2010.  According to him, in the ordinary course, if the claim was already withdrawn, the complainant should have referred it in his subsequent letter dated 27^th April, 2011.  He had drawn our attention to the contents of letter dated 27^th April, 2011 written by the complainant to the O.P.No.2.  It runs as under :

‘This is inform you that I would want to withdraw my claim, since I had paid for the repair and taken the car, so I am entitle to No Claim Bonus that 65%’.

On perusal of this letter, it appears that the complainant wants to withdraw his claim by this letter.  If, it was already withdrawn, he should have written that he has already withdrawn his insurance claim.   This letter corroborates the submission of the O.P.No.2 that email letter dated 2^nd December, 2010 was not received.  It is submitted by the learned advocate for the complainant that as email letter dated 2^nd December, 2010 is computerized, it is not necessary to take acknowledgement manually.  As stated above, the letter dated 27^th April, 2011 corroborates the defence taken by the O.P.No.2.  The learned advocate for the complainant could not explain the purpose of letter dated 27^th April, 2011 written by the complainant to the O.P.No.2 disclosing his intention to withdraw the insurance claim when, according to the complainant, it was already withdrawn. 

7)                There is no dispute that the complainant took the vehicle to the O.P.No.3 for repairs.  According to the O.P.No.3, his advisor prepared estimate and the same was valuated by the Surveyor of the O.P.No.2.  According to the O.P.No.2, Surveyor was already appointed on receiving insurance claim from the complainant.  Surveyor valued the damages and submitted the report to the O.P.No.2.  As per the insurance cashless policy, claim was directly paid to the O.P.No.3 on the request of the complainant in his claim. Payment to the O.P.No.3 by the O.P.No.2 is not disputed.  The dispute is whether the complainant withdrew his claim on 2^nd December, 2010 and whether it was communicated to the O.P.No.2.  As stated above, the subsequent conduct of the complainant about writing letter dated 27^th April, 2011 is not supporting the complainant.  Therefore, the submission of the complainant that he had withdrawn the claim on 2^nd December, 2010 can not be accepted.  The O.P.No.3 has already prepared the estimate.  By the consent of the complainant, he has repaired the car and the complainant took away his car on 3^rd December, 2010 on payment of repair charges.  The complainant had already submitted his insurance claim.  It was necessary for the complainant to give intimation to the O.P.No.2 before appointment of the Surveyor.  According to the O.P.No.2, Surveyor was appointed and he submitted his report.  This fact is corroborated by the O.P.No.3.  According to the O.P.No.3, his advisor prepared estimate and it was valuated by the Surveyor of the O.P.No.2.  According to the O.P.No.2, it has already incurred expenses for appointing the Surveyor.  Once the Surveyor is appointed and he submitted his report, the complainant can not withdraw his claim.  It was necessary for the complainant to decide it before submitting his insurance claim.  Once the claim is submitted and received the benefit under the insurance policy, the complainant is not entitled for No Claim Bonus facility.  It is not disputed that the O.P.No.3 received payment from the O.P.No.2 and the O.P.No.3 paid the said amount of Rs.10,407/- by cheque to the complainant.  This amount was accepted by the complainant.  This amount is more than No Claim Bonus of Rs.9,000/- as claimed in the complaint.  Therefore, there is no ground to the complainant to file this compliant.  

8)                The learned advocate for the complainant has place reliance on the judgment of the Hon’ble Supreme Court in the case of Lucknow Development Authority –Versus- M.K.Gupta, decided on 5^th November, 1993. In this judgment the Hon’ble Supreme Court has held as under :

It has been approved by this Court in Regional Director, Employees' State Insurance Corpn. v. High Land Coffee Works of P. F.X. Saldanha and Sons2; CIT v. Taj Mahal Hotel, Secunderabad3 and State of Bombay v. Hospital Mazdoor Sabha4. The provisions of the Act thus have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit oriented legislation. The primary duty of the court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and is not contrary to the attempted objective of the enactment.

In view of this judgment, the provision of the Act is to be construed in favour of the complainant to achieve the purpose of enactment.  This judgment does not say that the Forum should misinterpret the provision of law. As discussed above, the process was already started.  The complainant has received the benefit under policy on his own request.  Thereafter, he can not withdraw as there was more benefit in No Claim Bonus than the repair cost.  Therefore, the abovecited judgment is not helpful to the complainant.  Moreover, in the complaint, the complainant has claimed No Claim Bonus of Rs.9,000/- only whereas he has already received claim amount of Rs.10,407/-. 

9)                The O.P.No.1 & 3 have no concern with the withdrawal of insurance claim and payment of claim.  Therefore, there is no deficiency in service on the part of the O.P.No.1 & 3.  As discussed above, the O.P.No.2 has already appointed Surveyor, Surveyor submitted his report and the claim was paid.  Therefore, there is not efficiency in service or unfair trade practice on the part of the O.P.No.2.  Hence, we proceed to pass the following order.

ORDER

1. Complaint stands dismissed.
2. Parties are left to bear their own costs.
3. Inform the parties accordingly.

Pronounced on 9^th October, 2014