West Bengal

Birbhum

CC/33/2020

Pradyot Roy - Complainant(s)

Versus

Manager ,Bharti AXA Gen. Ins. co ltd - Opp.Party(s)

Sanjit Kr Acharya

04 Oct 2023

ORDER

Shri Sudip Majumder- President-in-Charge.

            The complainant/petitioner files this case U/S 12 of Consumer Protection Act, 1986. The fact of the case in brief is that the petitioner/complainant, Pradyot Roy, S/o. Lt. Ramkinkar Roy, permanent resident of Vill. Junidpur, P.O. Panchrahat, P.S. Khayrasole and Dist. Birbhum, purchased an insurance policy No. FPV/SM275972/2C/09/003575 date 23/09/2019, for his vehicle being No. WB-54-P-2410. The policy was valid from 23/09/2019 to midnight of 22/09/2020, IDV Rs. 2,80,000/-.

            It is the further case of the complainant that on 14/12/2019 the vehicle met with an accident at Chapra 5 kms. away from Taranipur under the P.S.-Tehatta, Dist.- Nadia and the OP was duly informed of the same fact.

Thereafter, as per instruction of OP side, the complainant lodged an insurance claim being claim No ZA089373, Repair Estimate from M/S Rudra Automobile Pvt. Ltd., L & T More, Durgapur-12 dated 17/12/2019 amounting to Rs. 2,65,000/- was held as cost of repairing. The complainant paid Rs. 8,000/- as token charge. The complainant could not complete the repair work of the vehicle due to paucity of fund.

The OP sent a letter to the complainant dated 03/02/2020 and stated that “The vehicle was surveyed on 17/12/2019 and all the relevant claim documents were received by us on same day on careful observation of the relevant document, it has been found that two claims are made in the erstwhile

 

policy and the same was confirmed by your previous insurer also. However during the policy booking, you have declared that you don’t have any claim in erstwhile policy & you have claimed NCB @ 35%. Hence it is a clear case of misrepresentation of fact.”

            Thus, the OP side repudiated the entire claim of the complainant.

            It is the specific version of the complainant that the complainant at the time of purchasing the policy did not suppress any material fact and he disclosed the previous claim history if any before the OP insurance company, but as the report of insurance information bureau of India stated no claim history the complainant was instructed to deposit the premium against the aforesaid policy and accordingly the insurance policy certificate was issued.

Hence, after finding no other alternative the complainant is compelled to file this case before this Forum/Commission for proper reliefs and prays for:-

1. To pass order directing the OP to pay a sum of Rs. 2,65,000/-(Two lakh sixty five thousand only) as insurance claim + token charges Rs. 8,000/-.
2. To pass order directing the OP to pay interest @ 12% p.a. on Rs. 2,65,000/-(Two lakh sixty five thousand only) since 14/12/2019.
3. To pass an order directing the OP to pay Rs. 1,000/- per diem as parking charges.
4. To pass order directing the OP to pay a sum of Rs. 1,00,000/- (One Lakh only) for mental agony and harassment caused by the OP.
5. To pass order directing the OP to pay litigation cost of Rs. 20,000/-.
6. Other relief/reliefs.

It appears from the case record that the complainant prayed before us for expunging the name of the OP No. 1 from the cause title of this case. It also appears from the case record that none appears from OP No. 2 before this District Commission after receiving the notice. As a result, vide order No. 14 dated 22/12/2021 this Commission stated for expunging OP No. 1 from the cause title of this case as well as for running exparte against the OP No. 2.

Complainant’s side submitted evidence-in-chief and written notes on argument. Some documents have also been filed by the complainant himself. The documents have been compared with original documents. Thereafter, Ld. Advocate for the complainant made oral argument in support of his case.

                                                   Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the Ops?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

 

Decision with reasons

Point No. 1:

            In this case, the complainant purchased an insurance policy for his vehicle vide policy No. FPV/SM275972/2C/09/003575 date 23/09/2019. Thus the complainant is a consumer under the OP member and the OP member is the service provider. Hence, the complainant is a consumer as per Sec. 2(1)d(ii) of the Consumer Protection Act, 1986.

Point No. 2:

            Pecuniary jurisdiction of this Forum/Commission as per Sec. 11(1) of the Consumer Protection Act, 1986 is Rs. 20,00,000/-. OP/ Bharti AXA General Insurance Co. Ltd. has a Branch office at Suri in Birbhum District i.e. within the territorial jurisdiction of this Forum/Commission as per Sec. 11(2) of the Consumer Protection Act, 1986. So, this Forum/Commission has territorial and pecuniary jurisdiction.

In this case, the cause of action arose from 14/12/2019 and the case has been filed on 11/06/2020 and as such it can be said that the complainant has filed this case within the statutory period of the C.P. Act, 1986 and as such the instant complaint is not barred by limitation U/S 24A of the C.P. Act, 1986.

Point No. 3:

It appears from the documentary evidence as available in the case record that the complainant purchased an insurance policy for his vehicle vide policy No. FPV/SM275972/2C/09/003575 date 23/09/2019, for vehicle being No. WB-54-P-2410. The policy was valid from 23/09/2019 to midnight of 22/09/2020, IDV Rs. 2,80,000/-. The vehicle in question met with an accident on 14/12/2019 i.e. within the valid period of the said insurance policy. The complainant claimed Rs. 2,65,000/-  estimated as cost of repairing as it was shown in Repair Estimate of M/S Rudra Automobile Pvt. Ltd. date 17/12/2019 and Rs. 8000/- as token charge. Total amount of claim was Rs. (2,65,000/- + 8,000/-)= Rs. 2,73,000/- is also within the IDV i.e. within Rs. 2,80,000/-.

            But the OP side repudiated the entire claim of the complainant by sending a letter dated 03/02/2020 and stated that “The vehicle was surveyed on 17/12/2019 and all the relevant claim documents were received by us on same day on careful observation of the relevant document, it has been found that two claims are made in the erstwhile policy and the same confirmed by your previous insurer also. However during the policy booking, you have declared that you don’t have any claim in erstwhile policy & you have claimed NCB @ 35%. Hence it is a clear case of misrepresentation of fact.”

The complainant argued in his written notes on argument (W/N/A) that OP insurance

company repudiated the claim of the complainant arbitrarily and illegally, although the complainant disclosed every things in respect of previous claim, OP insurance company did not show the previous

 

 

claim of the complainant. Agent of the insurance company compelled the complainant to deposit the premium.

The complainant also stated in his W/N/A that there is no such document in support of the repudiation letter of the OP insurance company. That after issuing policy they had written to previous insurer and confirmed entitlement of “No claim bonus” where it was obligatory for insurance company to right to previous insurer within 21 days of granting of cover and previous insurer was obliged to furnish information within 13 days for receipt of this letter. Previous GR 27 binds insurance company to confirm declaration of insured within 21 days. No such letter of information have been filed to support the letter of repudiation of the OP insurance company.

      The complainant also stated in his W/N/A that if there is non-discloser of previous claim then how the insurance company can collect the sort for premium from the insured?

      The complainant cited a judgement of SCDRC, Rajasthan, reported in IV (2015) CPJ 10B (CN) wherein their lordship observe that provision under GR 27 Binds Insurance Company to confirm declaration of insured within 21 days. And their lordship was inclined to hold that the repudiation of the claim is not justified and order to settle the claim on nonstandard basis.

      In the light of observation made by their Lordship in the above decision we find us safe to follow them and apply the ratio in the present dispute.

From the above discussion, this Commission is of the view that the OP side did not agree to pay the entire cost of repairing as claimed by the complainant and cause shown by the OP side for repudiation of the said claim is baseless and vexatious one.

It is proved beyond all reasonable doubts that the aforesaid act of the OP members are amounting to deficiency in service as per Sec. 2(1) (g) of C.P. Act, 1986 as well as unfair trade practice as per Sec. 2(1) (r) of the C.P. Act, 1986.

Hence, from the above discussion it is proved that the complainant could be able to prove her case beyond all reasonable doubts.

Point No. 4:

From the documentary evidence as available in the case record it is crystal clear that the complainant is the beneficiary of the said policy.

As in this case, it is proved that there is deficiency in service on the part of the OP members.

Hence, the complainant is entitled to get relief or compensation as prayed for.

Thus, all the points are decided in favour of the complainant.

Complaint is sufficiently stamped and proved beyond all reasonable doubts.

 

 

 

Hence, it is,

            O R D E R E D,

                                        that the instant C.F. Case No. 33/2020 be and same is allowed exparte and with cost.

The OP No. 2 is directed to pay the estimated cost of repairing of the car in question          + token charges ─ depreciation @ 10% p.a. to the complainant

 i.e. Rs. (2,65,000/- + 8,000/-) less depreciation @ 10% p.a.

= Rs. 2,73,000/- ─ Rs. 27,300/-

= 2,45,700/- (Two lakh forty five thousand seven hundred only).

            The OP No. 2 is also directed to pay Rs. 10,000/- (Ten thousand only) as compensation as against mental agony and harassment to the complainant and Rs. 5000/- (Five thousand) as cost of litigation to the complainant.

The entire decree will be complied by the OP No. 2 within 45 (Forty five) days from this date of order, failing which entire amount shall carry interest @ 9% p.a. till its realization.

If the OP No. 2 failed to comply the decree the complainant would be at liberty to put this order to execution in accordance with law.

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.