Chandigarh

DF-II

CC/244/2018

Rakesh Singh Panwar - Complainant(s)

Versus

Magma HDI General Insurance Company - Opp.Party(s)

Sanyam Malhotra Adv.

03 Apr 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	244/2018
Date of Institution	:	27.04.2018
Date of Decision	:	03.04.2019

 

                                       

                               

Rakesh Singh Panwar son of Sh.Lungi Singh Panwar r/o Rajinder Book Depot, Upper Bazar, Pauri, Garhwal, Uttarakhand-246001.

                                ...  Complainant.

Versus

1.     Magma HDI General Insurance Company having its Registered Office at 24 Park Street, Kolkata-700016, West Bengal.

2.     Hi-TEK Motorz, Plot No.695, Industrial Area, Phase-I, Chandigarh, UT, through its Managing Director.

3.     Krishna Auto Sales, Plot No.177-E, Industrial Area, Phase-I, Chandigarh through its Managing Director.

…. Opposite Parties.

BEFORE:       

                  SHRI RAJAN DEWAN, PRESIDENT

    SMT.PRITI MALHOTRA, MEMBER

    SHRI RAVINDER SINGH, MEMBER

 

Argued by:  Sh.Sanyam Malhotra, Adv. for the complainant

    None for OP No.1

                    None for OP No.2.

    Sh.Jagvir Sharma, Adv. for OP No.3.

 

PER RAJAN DEWAN, PRESIDENT

1.          In brief, the case of the complainant as alleged is that  he got insured his vehicle bearing  registration No.CH-01-AJ-7992 vide Insurance Policy (Annexure C-1) for the period from 19.06.2015 to 18.06.2016 for IDV of Rs.3,30,000/.  On 20.05.2016, when the complainant along with his wife was going in the vehicle in question, the same met with an accident  near Raipur Rani and the wife of the complainant suffered injuries and the vehicle was damaged.  It has further been averred that when the vehicle was taken to OP No.2 for its repairs then OP No.2 in connivance with OP No.1 to deliberate non-suit the claim raised a highly excessive bill more than the insured value and declared the vehicle as a total loss.  He requested OP No.1 to process the claim and to give the insurance amount but the same was denied  by OP No.1 vide letter dated 05.10.2016 on the ground that the NCB claimed by the complainant was fake as he had earlier taken a claim.  It has further been averred that he wrote letter dated 30.05.2017 to OP No.1 that it was incumbent upon the insurance company to verify whether 25% NCB was to be given to him or not and also informed them that even if 25% NCB rebate wrongly given to the complainant in that case at the most it was a ground to recover the difference in premium amount due to 25% NCB rebate but the claim could not be refused, but to no effect.  He also wrote a letter dated 18.06.2017 to OP No.2 to supply the copy of all the documents pertaining the vehicle in question.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the present complaint.
2.         In its written statement, OP No.1-Insurane Company while admitting the factual matrix of the case has pleaded that they sent a letter dated 10.08.2016 regarding the discrepancies with regard to the NCB claimed by the complainant but he had not supplied any documents and clarifications.  Subsequently, the repudiation letter dated 05.10.2016 was sent to the complainant wherein it was observed as under:-

“Sir you  have availed NCB @ 25% in our policy at the time of renewal from Magma HDI General Insurance Company Ltd. whereas as on the clarifications of your previous policy submitted by you from Bharti AXA General Insurance Co., it was found that you have lodged a claim with in that policy and same was paid also”.

                It has further been pleaded that the claim was rightly repudiated as per the terms and conditions of the Insurance Policy. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.

3.         OP No.2 has failed to file the reply and evidence despite availing numerous opportunities and, therefore, its defence was ordered to be struck off vide order dated 01.11.2018.
4.         In its separate written statement, OP No.3 has pleaded that it was only responsible to undertake the maintenance and repair of the cars on charge basis either from the car owners or manufacturer of the car as the case may be after the sale of cars manufactured by M/s Skoda Auto India Pvt. Ltd.  It has further been pleaded that it has been arrayed to verify and give the actual rates of the parts to show that the rates given by OP No.2 were illegal and highly excessive as alleged in para 7 of the complaint. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.
5.         The complainant filed rejoinder to the written reply of the OP No.1 controverting its stand and reiterating his own.      
6.         We have heard the learned counsel for the contesting parties and have gone through the documents on record.
7.         The insurance of the vehicle in question vide Insurance Policy (Annexure C-1); accident of the vehicle during the currency of the insurance policy, total loss of the vehicle, filing of the claim and repudiation of the same vide letter dated 05.10.2016 Annexure R-9, availing of 25% No Claim Bonus (N.C.B.) by the complainant are admitted facts between the parties.
8.          The objection raised by the OP-insurance company that the complainant was guilty of concealment of facts qua "no claim bonus" does not stand to reason, the reason being that it was the duty fastened upon the insurance company to verify about the entitlement of No Claim Bonus (N.C.B.) to the complainant at the time of issuance of this policy. More so, the  policy continued running from 19.06.2015 to 20.05.2016( i.e. the date of the accident) and during the period OP No.1 did not demand the difference of NCB from the complainant. This disentitles the Insurance Company to take shelter of the plea of misrepresentation of facts on part of the complainant.
9.         Since the repair liability of the vehicle in question was more than 75%, therefore, the same was treated as total loss by the surveyor.  The IDV of the vehicle in question as shown in the policy document (Annexure C-1) issued by the OP No.1 itself is Rs.3.30 lakhs and therefore, the complainant is entitled to the IDV of Rs.3.30 lacs minus excess clause i.e. Rs.1000/- and not Rs.2,63,500/- as mentioned in the survey report dated 02.06.2016 (Annexure R-10) because the premium was taken from the complainant by the Insurance Company by the calculating IDV of the vehicle at Rs.3.30 lacs.
10.         However, the fact remains that complainant had availed NCB benefit to the extent of 25% qua which he was not entitled to. Therefore, the equity demands that bonus payable to the complainant in respect of the insurance claim should be decreased by 25%. Here our view is bolstered from the judgment of the Hon'ble National Commission in reported in 2016(1) C.P.R. 910) -National Insurance Co. Ltd. versus Harpreet Singh in which it was held as under:-

 

“Consumer Protection Act, 1986 — Sections 2(1)(g), 14(1)(d), 21(b) — Insurance — Accident of vehicle — Surveyor appointed — Claim repudiated — Deficiency in service — District Forum allowed complaint — State Commission dismissed appeal — Hence revision — Where the insured is unable to produce evidence pertaining to his No Claim Bonus entitlement, he may be permitted to give a declaration in support of his No Claim Bonus — Failure of insured granting No Claim Bonus to write to previous insurer within 21 days shall constitute the breach of tariff — No communication was sent by petitioner to previous insurer — This disentitles the Insurance Company to take shelter of the plea of misrepresentation of facts on part of petitioner — However, the fact remains that respondent-complainant on basis of false declaration given to petitioner paid 25% less premium — Equity demands that bonus payable to complainant in respect of his insurance claim should be decreased by 25% — Insurance Company directed to pay to complainant 75% of claimed amount i.e. Rs.1,18,174 with 9% p.a. interest”.

                The principle of law laid down by the Hon'ble National Commission in the aforesaid case is squarely applicable to the facts and circumstances of the instant case.

11.         In the light of above observations, the present complaint is allowed with a direction to the Insurance Company (OP No.1) to pay 75% of the IDV of the vehicle in question i.e. Rs.3,30,000/- minus Rs.1000/- towards excess clause to the complainant alongwith interest @ 9% p.a. from the repudiation letter dated 05.10.2016 (Annexure R-9) till its realization.  OP No.1 shall also pay a sum of Rs.5,500/- as cost of litigation. The aforesaid order shall be complied with within 45 days from the date of receipt of certified copy of the order by OP No.1.  However, the salvage of the vehicle in question shall be retained by the insurance company.
12.         The complaint qua OPs No.2 and 3 stands dismissed.
13.         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

ANNOUNCED

03.04.2019

Sd/-

 (RAJAN DEWAN)

PRESIDENT

Sd/-

 (PRITI MALHOTRA)

MEMBER

Sd/-

 (RAVINDER SINGH)

MEMBER