Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-99/dated 05.04.2017
Ravi Raj Pawar son of Shri Jaikishan Pawar
r/o WZ-1127A, Rani Bagh, Delhi …Complainant
Versus
OP-Liberty Videocon General Insurance Co. Ltd.
10th Floor, Aggarwal Cyber Plaza 1, Netaji Shubhash
Place, Pitampura, New Delhi-110034
Also at: 10th Floor, Tower-A, Peninsula Business Park,
Ganpatrao Kadam Marg, Lower Parel, Mumbai-400013 ...Opposite Party
[… name of other OP was deleted vide order dt.19.05.2023].
Date of filing: 05.04.2017
Date of Order: 07.12.2023
Coram:
Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) – The complainant (briefly 'insured') has grievances of deficiency of services and of unfair trade practice that he took motor insurance policy no. 2011-200102-15-1010608-00-000 w.e.f. 07.03.2016 to 06.03.2017 (briefly 'insurance policy') from OP/Liberty Videocon General Insurance Co. Ltd. (briefly 'insurer'), it was first renewed policy and earlier insurance policy for period 07.03.2015 to 07.03.2016 was taken from TATA AIG General Insurance Co. in respect of complainant’s car bearing registration no. DL 4CAS 8932, Brand Swift VDI (NM), make Maruti (hereinafter referred as 'the vehicle'). However, on 10.10.2016 there was theft of the vehicle, police report was also lodged but the vehicle remained untraced and OP declined valid claim of theft loss of vehicle without an reasons and later disclosed a flimsy grounds, as if there was wrong declaration about NCB.
The complainant seeks reimbursement of insurance amount of Rs. 5,30,000/-, interest, compensation of Rs. 1,00,000/-, for repudiation of the claim on false ground, further compensation of Rs.1,00,000/- for mental pain and financial losses.
1.2. The OP opposed the complaint on all counts that neither there was any deficiency of services nor unfair trade practice nor the complainant is entitled for any relief claimed, since there was wrong and false declaration of NCB in the proposal form of 06.09.2016 in respect of insurance policy w.e.f. 07.03.2016 to 06.03.2017. As per the terms and conditions of policy, the complainant forfeited his all rights by virtue of that false declaration.
1.3. It is relevant to mention that the OP had pleaded that proposal form of was furnished by the complainant on 06.09.2016, and the complainant had opposed this plea that he never signed any proposal form. The complainant had filed an application to seeking from OP to produce proposal form. On 11.01.2019 the OP produced and filed the relevant record inclusive of the proposal form, now it is matter of record of this file.
1.4. Initially, the complaint was filed against the OP/ Liberty Videocon General Insurance Co. Ltd. as well as against another opposite party/ financer/ creditor. The said financer/ creditor failed to appear, it was proceeded ex-parte vide order dated 07.07.2017. The complainant had also sought relief in prayer clause (iv) against creditor , however, the complainant had given statement on 19.05.2023 that the entire amount of creditor has been paid, no relief was left against that creditor and consequently the name of financer/ creditor was got strike off from the array of parties, which is matter of proceedings dated 19.05.2023. That is why the name of that OP has been withheld from the array of parties.
2.1. (Case of complainant) – The complainant had purchased the vehicle from DD Motors and it was insured through TATA AIG General Insurance Co. w.e.f. 07.03.2015 to 07.03.2016. Subsequently, the OP approached the complainant for insurance of the vehicle from OP because of more benefits and better services as compared to other insurance companies. The complainant was convinced and in the first week of March, 2016, he took insurance policy w.e.f. 07.03.2016 to 06.03.2017 from the OP by paying premium amount of Rs. 17,276/- and the by providing copy of previous policy cover/bond, ID/ address proof and copy of RC of the vehicle to OP. Then OP issued insurance policy vide policy no. 2011-200102-15-1010608-00-000. In the month of June 2016, the complainant receives a call from the OP that premium was not properly charged and complainant was asked for payment of further amount because of want of non-availability of NCB clearance. Thus, on the request of OP, the complainant issued a cheque of Rs. 4,536/- of 15.06.2016 and at that time OP’s executive also took photographs of the vehicle stating that on the eve of change of insurer, the vehicle is to be inspected/ photographed. The complainant cooperated the OP.
2.2. On the midnight of 2016, the vehicle was stolen from outside commercial complex Rani Bagh, Delhi. It was informed to police and FIR no. 030078 dated 11.10.2016 P.S. eP.S.- MV theft was registered u/s 379 IPC. The vehicle remained untraced by police and untraced report was filed in the court of Ld. ACMM, North-West District, Rohini Court, Rohini Delhi.
2.3. On 11.10.2016 the complainant also informed OP about theft of the vehicle and OP registered claim number 200102201116110199601. The complainant also provided all the documents to the OP. The complainant was perusing his claim and also contacting the OP on telephone, but he shocked to know on telephone that claim has been denied/repudiated by the OP. The complainant has always been cooperating the OP on all occasions inclusive of initial payment of premium as well as further payment by cheque. The complainant also requested OP for re-consideration of the claim loss but OP never served any letter/written communication about the fact of repudiation of the claim.
However, in one of reply dated 16.11.2016, the OP mentions certain facts which were unknown to the complainant, as in that reply/email the OP had sent an attachment. It was letter dated 09.11.2016 that the claim was repudiated on the basis of proposal form, whereas the complainant never signed any proposal form nor the complainant had ever since given wrong information about no claim bonus (NCB). The OP never informed the complainant about any such terms and conditions so mentioned in the repudiation letter.
2.4. The OP never informed the complainant about such allegations earlier to the lodging of the claim in October/ November 2016 of theft lost but took such plea as an after-thought after lodging of theft loss claim by the complainant. The OP was required to inform the complainant, if it was not prepared to continue with the insurance policy so that the complainant could have policy from other insurance company, since the vehicle was bought against loan. The complainant was put to all kind of trauma by the OP by refusing the claim, as he was already paying the monthly installment to clear the loan and deprived of use of vehicle by theft. The complainant is entitled for the claim lodged as well as other reliefs claimed.
2.5. The complaint is accompanied with copies of - insurance cover, cheque dated 15.06.2016, letter dated 09.11.2016; first page of passbook of his account with Synidate Bank showing his date of birth, FIR, emails/ correspondence.
3.1 (Case of OP)-The OP does not dispute the insurance policy cover, its tenure and the premium initially paid in respect of insurance policy issued but OP denies all other allegations of the complaint. The reply has been split into various heads of preliminary objection, reply on merits and paragraph-wise reply, however, in the preliminary objections and reply on merit, the reply has been styled as per own convenience OP and those pleas have also been repeated in the paragraph-wise reply vis-à-vis certain facts have not been responded in paragraph-wise reply, the OP kept silent on those aspects. Thus, the facts so stated by OP will be mentioned.
3.2. The policy was issued for period w.e.f. 07.03.2016 to 06.03.2017. The complainant had made declaration of NCB in the proposal form. The proposal form of 06.09.2016. The policy was taken through IRDAI licenced agent Ms Archana Pahwa. The complainant had also received OP's letter dated 28.03.2016., in which the complainant was apprised of his wrong declaration of entitlement/benefit of 20% NCB in the proposal form, [the OP has reproduced in written statement those declarations from the proposal form]. Since there was wrong declaration by complainant of claiming 20% NCB, therefore, the complainant has violated principle of utmost good faith of insurance contract and by virtue of those wrong declaration, the complainant forfeited the rights from the inception and his claim was not maintainable. The claim was rightly repudiated and he was also informed repudiation of claim by letter dated 09.11.2016.
The OP had received information on 12.10.2016 about the episode of stolen of vehicle on 11.10.2016, however, the claim was repudiated by letter dated 09.11.2016 on valid and sound reasons, therefore, there is no deficiency of service on the part of OP. The OP relies upon TATA AIG General Insurance Co. Ltd. vs Guljari Singh (RP no. 1255/2009) & Brijbhushan vs National Insurance Co. Ltd. (RP no. 33/2012) wherein it was held that repudiation of claim by the insurance company could be on the ground of false declaration of NCB.
3.3. The complainant had not paid amount to the OP in compliance of letter dated 28.03.2016. The OP never received any cheque of Rs. 4,536/- from the complainant. In the month of June 2016, the complainant approached to the OP for inspection of the vehicle to rectify the NCB benefit and reattach benefit under the Section-1 of policy. The OP got inspected the vehicle and found that there were accidental damages to the vehicle, the OP asked the complainant to first get repaired the vehicle and then approach again OP for re-inspection of the vehicle. The complainant never re-approached to the OP. The OP relies upon P.C. Chacko & Anr. vs Life Insurance Corporation [2008 1 SCC 321] wherein it was held that proposal can be repudiated, if fraudulent act is discovered.
3.4. By these facts, features and other circumstances reiterated by the OP, it denies all other allegation of the complaint that the complainant is not entitled for any relief claimed as there is no cause of action or deficiency of service but the claim was repudiated on justified reason that the complainant had made wrong declaration of NCB claim of 20% but on verification it was discovered that he had already availed that benefit vis-à-vis in terms of declaration/ policy condition the claim was declined. The complaint is liable to be dismissed.
3.5. The reply is accompanied with photocopy of motor vehicle insurance proposal, certificate of insurance cum policy schedule, private car package policy wording (i.e. terms and conditions), letter/notice dated 28.03.2016 for payment of short premium of Rs. 3,985/-+ Rs. 250/- and claim-repudiation letter dated 09.11.2016.
4.1 (Replication of complainant) –The complainant filed detailed replication, not only he denies all the allegation of reply but also reaffirms the complaint as correct vis-à-vis the complainant has taken certain figures, data, date and numbers from the documentary record and put them together as a comparative data to highlight that the averment in the complaint are correct and the allegation of written statement are wrong. His residential address, date of birth, contact number and his martial-status as mentioned in the proposal form do not match with his correct particulars and he never signed that proposal form. He denies those allegations of written statement. The replication is accompanied with application for personal power loan showing particulars & detail of complainant, photocopy of statement of account with Axis Bank, Pan Card, Aadhar Card and complainant’s marriage invitation card of wedding on 27.04.2016.
4.2. It is not out of context to mention that alike OP, the complainant is also silent in his replication about a fact of 20% NCB, although he files exhaustive replication regarding other facts and features.
5.1. (Evidence)- Complainant filed his detailed affidavit, it is based on his complaint and other facts of replication coupled with the documentary record filed with the complaint.
5.2.The OP led evidence by filing affidavit of Shri Dinesh Jhalani, Legal Manager and another affidavit of Ms. Archana Pahwa, Licenced agent. The OP also relies upon the documents filed in support of reply besides inspection report of 18.06.2016.
6.1 (Final hearing)- The complainant and the OP filed their respective written arguments, they refer the documentary record filed in their pleading and evidence.
6.2. The parties were also given opportunity to make oral submissions then Sh. Rakesh Garg, Advocate for complainant and Sh. Inderjeet, Advocate for OP made their respective submissions.
The OP has relied upon the case law in its reply, which has already been mentioned in details of case of OP. The complainant relies upon (i) S.S. Arshi vs The New India Assurance Company, [FA no.471/2013, dod 01.01.2014, SCDRC, Chandigarh] and (ii) United India Insurance Co. Ltd. Vs. Bhupinder Singh [RP no. 473 /2013 dod 01.04.2013, NCDRC, New Delhi], that in case there is breach of policy term/NCB declaration, the claim of complainant cannot be refused.
7.1 (Findings)- The rival contentions of both the sides are considered keeping in view the material on record in the form of pleadings, evidence, statutory provisions of law and the case law presented.
7.2.1. At the outset, there is no hesitation to write here that both the complainant as well as the OP are indulging in hide and seek on many aspects to self-serve their own purpose (also by blaming the other side), but their inconsistency or contradictions are answered by the record itself. To say, it needs to look into the record completely and it will dispel those projections, which was tried by the parties. All of them will be taken one by one.
7.2.2. Moreover, Ms. Archana Pahwa of witness of OP in her statement narrates paragraphs 15 & 17 of the complaint is wrong and its corresponding paragraphs of the reply of the OP is correct, whereas the said witness Archana Pahwa is not a party to the complaint to make her reply in this manner either by confirming the written statement of OP or to denying complaint.
OP had led evidence of Ms. Archana Pahwa as material witness in respect of proposal form, however, she has not uttered an iota of fact as to who had filled in the proposal form or who authored it on the part of OP or when it was actually filled in & so on?. She had not led an independent statement/evidence about the material fact in respect of proposal form, if it was processed in her presence. She confirms OP's written statement in respect of proposal form of 06.09.2016 but she, being an licensed agent, failed to account as to why proposal form was of 06.09.2016, if the insurance contract was already entered from 07.03.2016 to 06.03.2017.
7.3.1. At the cost of repetition, the issue of insurance policy by OP in favour of complainant for period from 07.03.2016 to 06.03.2017 in respect of the subject vehicle is not disputed. The dispute is in respect of other factors.
7.3.2. It is settled law that once insurance premium is accepted by the insurer from the insured, an insurance contract comes into existence. There is no dispute that the subject policy is second insurance policy for IDV Rs. 5,30,000/- and the previous policy was for period from 07.03.2015 to 07.03.2016, which was issued by erstwhile Insurer TATA AIG General Insurance Co. Ltd.
7.4.1. The issue of proposal form is being taken. There is rival plea as on the one side OP claims that the proposal form was signed and issued by the complainant under his signature and it was furnished in the office of OP through licensed agent Mr. Archana Pahwa. Whereas the complainant denies it, the proposal form is unknown to him, it was not signed by him as he never saw that proposal form. However, on the basis of contents of the proposal form, he also disputes the date of birth, his contact number, marital-status and address mentioned therein by comparing with his date of birth mentioned in PAN card, address mentioned in the Aadhar Card, a copy of invitation card that he was unmarried at the time of taking policy and his other contact number. First of all, this is to be answered.
7.4.2. The complainant was issued insurance policy by OP is bearing his contact number and address which he is disputing in his replication by mentioning his contact number and address, which are stated to be different. However, this policy bears his address and contact number may be on the basis of his previous insurance policy handed over to the OP. The loan application in original was also filed by complainant and it also mentions the same address and contact number, which is mentioned in the current insurance policy.
But, there is variance in the mentioning of date of birth. Despite it, the complainant cannot derive any benefit by saying there was wrong address or with wrong contact number as highlight in the replication and then in the written argument, since the address and contact number mentioned in the loan application is also same as mentioned in the policy. Otherwise, the complainant never wrote to the OP, after receipt of insurance policy, that his contact number or address was wrong.
7.5.1. The copy of proposal form was filed with the reply by the OP and the original record was brought and filed as per proceedings dated 11.01.2019 after application of complainant to this effect. The title of this proposal form is 'motor vehicle insurance proposal and cover note' and it is appearing to be a carbon copy (a few entries are written in pen and are in original, it means they may be written after carbon impressions).
According to the case of OP, the complainant had furnished this proposal form on 06.09.2016 but according to complainant it was never signed and furnished by him. The carbon impression of the proposal form does not depict signature vividly. Therefore, no opinion can be formed whether or not it bears the signature on the proposal form.
7.5.2. However, the other circumstances, are speaking a lot. Firstly, when there was already insurance policy w.e.f 07.03.2016 to 06.03.2017 after payment of premium and furnishing previous policy documents, could it be believed that proposal form was furnished on 06.09.2016 subsequently but the insurance contract was already came into existence. It is settled law that once a premium is accepted by the insurer, the insurance contract comes into existence. It never happen that parties have entered into contract but proposal form may be asked subsequently. The proposal and its acceptance make an enforceable contract, being requirement of Indian Contract Act. It also infers that the OP had entered into the insurance contract on the basis of previous insurance policy & other record furnished, that too in the absence of proposal form (since proposal form is stated to be of 06.09.2016 by OP). Secondly, the OP refers its letter dated 28.03.2016 (which is denied by the complainant) that the complainant was pointed out about wrong declaration of NCB in the proposal form, whereas as per contents of letter dated 28.03.2016 (Annexure OP1/C), there is no reference of proposal form or wrong declaration, except that additional amount of Rs. 3,985/- + Rs. 250/= Rs.4,235/- was payable by the complainant. Since OP mentions about proposal form is of 06.09.2016 in his entire case (in pleading and also in para 3 of affidavit of Shri Dinesh Jhalani), then how this fact could be possible in the letter dated 28.03.2016?. Had there been existence of proposal form or wrong declaration therein, the OP would have so mentioned about such declaration in the said letter dated 28.03.2016. Simultaneously, it supports the plea of complainant that he had not signed any proposal form with any declaration.
7.5.3. There is no evidence by the OP as to when it had verified or received report from TATA AIG Insurance Co. Ltd. or came to its knowledge that the complainant was not entitled for NCB benefit. Although letter 28.03.2016 seeks additional amount from the complainant on account of NCB but it has not been proved whether this letter was actually sent or served upon the complainant, as there is no reference number or mode of posting it to the complainant nor any record of email that OP had communicated this letter dated 28.03.2016 to the complainant on email.
7.6.1. The complainant emphasizes that in the month of June 2016 he had paid addition amount of Rs. 4,536/- by way of cheque dated 15.06.2016 drawn on HDFC Bank since the OP had asked short of the premium paid amount. Further, the OP had also took photograph of the said vehicle on that occasion in June, 2015. On the other side, the OP maintains that after letter dated 18.03.2016 on account of want of applicability of NCB, the amount was called from the complainant but he never tendered the amount. Moreover, there was inspection of the vehicle and there were certain damages in the vehicle were noticed, the complainant was asked to re-approach the OP after getting the vehicle repaired, however, he never re-approached the OP.
7.6.2. The record is carrying answer to this controversy, just it is to be assessed and appreciated. So far letter dated 28.03.2016 is concerned, it has already been held that OP could not establish service of this letter upon the complainant for want of proof of mode of service. However, there was occasion for the OP to inspect the vehicle in June 2016 and OP has proved a single sheet inspection report dated 18.06.2016 in respect of the vehicle and this report is by Adroit Technical Services Pvt. Ltd., also reflecting a photograph of the vehicle. On the other side, the complainant has filed photocopy of his saving bank account with complaint and subsequently statement of account of other bank but nowhere it is proved that cheque issued by complainant was actually handed over to the OP or it was got encashed by the OP. Had the cheque been encashed by OP, the complainant would not have been silent and he would have definitely proved that entry that amount was encashed by the OP. The OP failed on this count.
7.7. By looking at the pleading and evidence of both the sides, it is crystal clear that the OP had asked the complainant for additional premium amount because of want of entitlement of NCB, as initially the complainant was allowed 20% NCB as if he had not lodged any claim previously with the erstwhile insurer TATA AIG General Insurance Company Ltd. The complainant had not denied this aspect in his complaint or in the replication despite specific allegations by the OP that complainant was not entitled for 20% NCB. The complainant is deemed to have admitted that he was not entitle for 20% NCB and circumstances are indicating that complainant was required to pay the amount in lieu of NCB allowed initially. It is already held that complainant could not proved that his cheque of Rs. 4,536/- was actually handed over to the OP nor that it was encashed by the OP. Therefore, it stands established that complainant had not paid the amount of Rs. 4,536/- or other amount of Rs. 4,235/- (i.e. Rs. 3,985/-+ Rs. 250/-) as narrated by the OP.
7.8. It is matter of record that the vehicle was stolen, the State machinery was put into action and police tried by way of investigation but finally untraced report was filed in the competent court. Since the insured vehicle had not been recovered, it is total theft loss to the complainant. The IDV of the vehicle is Rs. 5,30,000/-.
Simultaneously, it also stands established that the complainant was not entitled for NCB and the complainant also could not prove that he was entitled for NCB or he had actually paid additional premium in lieu of NCB, which was initially allowed to him. The complainant had an ample opportunity, while filing the replication to make it clear by way of reply to this specific allegation of his non-entitlement of NCB from OP but the complainant failed to respond it or to challenge the allegation of OP. Similarly, the complainant has also not led evidence to this effect. Therefore, seeking the NCB and non-payment of additional premium amount under such circumstances, bring this case under the preview of settlement of claim on non-standard basis, the case law [relied upon by the complainant of United India Insurance Company Ltd vs Bhupinder Singh (supra) and S.S. Arshi vs New India Assurance Company (supra), in which the claim was held entitled on non-standard basis on 75% basis and of no other relief], under similar circumstances applies to this complaint.
7.9.1. In view of the above, the case of complainant squarely comes within the preview of settlement of non-standard basis as of theft loss for the subject vehicle having IDV of Rs. 5,30,000/- under the insurance policy, its 75% amount comes to Rs. 3,97,500/- and by reducing further amount of Rs. 4,235/- claimed by the OP as additional amount, the net amount comes to Rs. 3,83,265/-, which the complainant is held entitled as settlement of the total theft loss claim.
7.9.2. By considering the ratio of law in the aforementioned cases relied upon by the complainant, the relief of interest, claim of Rs. 1,00,000/- and further claim of Rs. 1,00,000/- and other relief claim are not tenable, this request of complainant is declined.
8. Accordingly, the complaint is allowed partly in favour of the complainant and against the OP, while directing the OP to pay an amount of Rs. 3,83,265/- for theft loss of the vehicle under the policy, payable within 30 days from the date of receipt of this order by OP. In case this amount is not paid within 30 days, then OP will be liable to pay interest at the rate of 6% pa from the date of complaint till realization of amount of Rs. 3,83,265/. No orders to costs.
9. Announced on this 7th day of December 2023 [अग्रहायण 16, साका 1945].
10. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances besides upload on the website of this Commission.
[Inder Jeet Singh]
President [Shahina]
Member (Female)
