Chandigarh

DF-II

CC/114/2015

Nidhi Saini - Complainant(s)

Versus

Liberty Videocon - Opp.Party(s)

Sh. Nitin Gupta Adv.

01 Mar 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	114/2015
Date of Institution	:	04.03.2015
Date of Decision	:	01/03/2016

 

                                               

                                                         

Nidhi Saini w/o Sh.Vikas Saini r/o H.No.5, Sector 4, HUDA Colony, Naraingarh, District Ambala Haryana.

                                      ...  Complainant.

 

Versus

 

1.      Liberty Videocon General Insurance Co. Ltd., SCO No.174-175, First Floor, Sector 9-C, Chandigarh through its Manager/In-charge.

 

2.      Liberty Videocon General Insurance Co. Ltd., 10^th Floor, Tower-A, Penisula Business Park, Ganpatrao Kadam Marg, Lower Parel, Mumbai-400013 through its Chairman/M.D.

…. Opposite Parties.

 

BEFORE:   SHRI RAJAN DEWAN, PRESIDENT

SHRI JASWINDER SINGH SIDHU, MEMBER

SMT.PRITI MALHOTRA, MEMBER

 

 

Argued by: Sh.Nitin Gupta, Advocate for the complainant

                   Sh.Gaurav Bhardwaj, Advocate for the OPs.

 

PER RAJAN DEWAN, PRESIDENT

1.           In brief, the case of the complainant is that  she got insured the car bearing registration No.HR-02-AB-0028 for the period from 18.11.2013 to 17.11.2014 with Future Generali India Insurance Co. Ltd. and thereafter the same was got insured from the OPs for the period from 18.11.2014 to 17.11.2015. However, the cheque issued towards the premium was dishonoured on account of mismatch of the signatures. Thereafter, she paid the premium in cash and she was issued fresh cover note for the period from 22.11.2014 to 21.11.2015 for the vehicle in question.  The vehicle in question met with an accident and the OP-Company was duly informed regarding the same.  The complainant got repaired the vehicle from the authorized service center by incurring a sum of Rs.1,61,616/- towards its repair.  However, the claim lodged with the insurance company was repudiated vide letters dated 09.12.2014 (Annexure C-7) on the ground that she had made wrong statement and declaration in the proposal form regarding No Claim Bonus (NCB).  According to the complainant, the repudiation of the claim by the OPs is unjustified and illegal. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Parties, the complainant has filed the instant complaint.
2.           In the written statement, the factual matrix of the case has not been denied by the OPs. However, it has been pleaded that on receipt of the intimation regarding the accident, the Surveyor was appointed who assessed the loss to the vehicle in question to the tune of Rs.1,59,134/- vide his survey report (Annexure OP-3). It has further been pleaded that on verification of the NCB benefit entitlement with the previous insurer i.e. Future Generali India Insurance Co. Ltd. it was revealed that the complainant had already made a claim under the previous policy and thus she was not entitled for NCB Benefit on the insurance contract obtained from the OPs.   It has further been pleaded that in view of the statement/declaration made by the complainant in the proposal form pertaining to the NCB benefit found to be incorrect and untrue, the claim of the complainant was rightly repudiated vide letter dated 09.12.2014 (Annexure C-7).  Reliance has also been placed upon the GR-27 of the Indian Motor Tariff. The remaining allegations were denied, being false. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.
3.           In her rejoinder, the complainant has stated that the OPs never obtained any declaration from her regarding the NCB while issuing the cover note in question and the same was issued on the basis of the previous policy of Future Generali India Insurance Co. Ltd.
4.           We have heard the learned counsel for the parties and have gone through the documents on record.
5.          The insurance of the vehicle in question; damage to the vehicle during the currency of the insurance cover, receipt of intimation of said damage, appointment of Surveyor to assess the loss, filing of the claim and repudiation of the same vide Annexure C-7, availing of 20% No Claim Bonus (N.C.B.) from the previous insurance company i.e. Future Generali India Insurance Co. Ltd. are admitted facts between the parties.
6.           The stand of the Counsel for the OP is that in the proposal form, under the column of previous insurance details, the complainant represented that her vehicle was previously insured with Future Generali India Insurance Co. Ltd. and she had not made any claim with the said Insurance Company and availed NCB benefit to the extent of 20%.   However, later on it came to light that the complainant took the claim from the previous Future Generali India Insurance Co. Ltd. and as such she was not entitled to NCB of 20%. The complainant has, thus, misrepresented and concealed the material facts while taking the insurance policy in question and hence she violated the terms & conditions of the policy as well as GR-27 of India Motor Tariff and therefore, the claim was rightly repudiated.
7.           However, in rejoinder to the written statement, the complainant has specifically stated that while issuing the cover note, the OPs never obtained any consent/declaration from her regarding the NCB and rather they issued the cover note on the basis of the previous insurance policy of Future Generali India Insurance Co. Ltd. However, on coming to know regarding 20% NCB given in the Insurance Policy, she deposited the deficit in premium with the OPs on 26.12.2014. It was vehemently submitted that the OPs never  obtained her signatures on the insurance cover note or on any other declaration form and rather they forged her signatures on the proposal form. 
8.           Once it has been specifically denied by the complainant that the proposal form/declaration does not bear her signatures then the onus to prove the same is reverted back to the insurer who denies its liability under the Insurance Policy, to establish that the proposal form bears the signatures of the complainant. Pertinently, the OPs took no steps in that direction which they can do by moving an application for comparison of the signatures by a handwriting and fingerprints expert.  Under these circumstances, no credence and reliance can be placed upon the proposal form/declaration (Annexure OP-1) relied upon by the OPs.  The OPs, therefore, cannot be allowed to take benefit of their own wrongs.  Pertinently, the OPs have already received the deficit premium from the complainant on 26.12.2014 and benefit under Section 1 of the policy has already been reinstated.   Moreover, the surveyor appointed by the Company has assessed the liability of the OPs to the tune of Rs.1,59,134/- vide its report dated 09.12.2014 (Annexure OP-3). Accordingly, the plea of the OPs regarding making the misstatement in the proposal form by the complainant, being devoid of any merit and substance, is rejected.
9.           From the above factual position and discussion, it is proved that the OPs Insurance Company has wrongly and unjustifiably repudiated the genuine claim of the complainant.  Hence, the deficiency in service on the part of the OP as well as unfair trade practice is proved.    
10.           In view of the above discussion, we are of the opinion that the complaint must succeed. The same is accordingly allowed. The OPs are directed to pay Rs.1,59,134/- being net liability as assessed by the Surveyor (Ann. OP-3), to the complainant. The OPs are also directed to pay a compensation of Rs.7,000/- for causing mental & physical harassment to the complainant, apart from paying litigation cost of Rs.5,500/-.
11.                 This order be complied with by the OPs within a period of 45 days from the date of receipt of copy of this order, failing which they shall be liable to pay the awarded amounts to the complainant along with interest at the rate of 12% p.a. from the date of this order till its actual payment, apart from paying litigation cost.
12.                 Certified copies of this order be sent to the parties free of charge. The file be consigned

Announced

01/03/2016

Sd/-

(RAJAN DEWAN)

PRESIDENT

 

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

 

Sd/-

(PRITI MALHOTRA)

MEMBER

c